Published On: Sun, Aug 28th, 2016

Whether earning wife is entitled to get maintenance from husband?

 

The Gujarat High Court on Wednesday, October 21, 2015 in an Order titled Simaben Maheshbhai Soni Vs. State of Gujarat held that “the wife may be earning in thousands, but that would not absolve the husband from his legal liability to maintain his wife.”

 

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Justice J.B. Pardiwala observed that even if the wife is earning, that by itself will not absolve the husband from his liability to pay the requisite maintenance under Section 125 of the Code of Criminal Procedure or under the provisions of the Domestic Violence Act.

The only reason assigned by the Courts below for not awarding any amount of maintenance to the wife is that she being a Notary Public had a good income and if she is earning, then the husband should not be fastened with the liability of maintaining his wife. In my view, both the Courts below have committed a serious error of law resulting in miscarriage of justice.

The Order said.

By this writ application under Article 227 of the Constitution of India, the petitioner wife has prayed for to quash and set aside the impugned orders passed by the Chief Judicial Magistrate, Ahmedabad (Rural) and 2nd Additional Sessions Judge, Ahmedabad (Rural).

It appears from the materials on record that the petitioner wife initiated proceedings under the provisions of the Domestic Violence Act. She prayed for maintenance to the tune of Rs. 12,000 for herself and for her minor daughter.

The learned Chief Judicial Magistrate partly allowed the application and the Court thought fit not to award any amount of maintenance to the wife because, according to the learned Magistrate, the wife is earning, being a Notary Public. However, an amount of Rs. 5,000/per month came to be awarded in favour of the minor daughter.

While allowing the application and quashing the impugned orders the High Court remitted the matter to the Court of the learned Chief Judicial Magistrate, Ahmedabad (Rural) for a fresh decision in accordance with law.

Case Law Reference

1. Minakshi Gaur Vs. Chitranjan Gaur, AIR 2009 SC 1377

The Supreme Court observed as under:

According to the case of the appellant, her husband, who is Respondent No.1 herein, is a graduate in Engineering and his income is Rupees twenty thousand. In the counter affidavit filed before this Court, the fact that the income of the husband is Rupees twenty thousand per month has not been denied. However, it has been asserted that wife’s returned income is Rs.98,820/per annum, which shows that she was earning even less than Rupees nine thousand per month. Both the wife and husband are residing at Agra.

2. Bhagwan v. Kamla Devi (AIR 1975 SC 83)

It was observed that the wife should be in a position to maintain standard of living which is neither luxurious nor penurious but what is consistent with status of a family. The expression “unable to maintain herself” does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 Cr.P.C.”

3. Smt. Dukhtar Jahan v. Mohammed Farooq, (1987) 1 SCC 624

The Court opined that proceedings under Section 125 of the Code, it must be remembered, are of a summary nature and are intended to enable destitute wives and children, the latter whether they are legitimate or illegitimate, to get maintenance in a speedy manner.

Eventually, the Court ruled thus:-

“43. We, therefore, hold that while deciding an application under Section 125 of the Code, a Magistrate is required to record reasons for granting or refusing to grant maintenance to wives, children or parents. Such maintenance can be awarded from the date of the order, or, if so ordered, from the date of the application for maintenance, as the case may be. For awarding maintenance from the date of the application, express order is necessary. No special reasons, however, are required to be recorded by the court. In our judgment, no such requirement can be read in subsection (1) of Section 125 of the Code in absence of express provision to that effect.”

 

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