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Maintenance reduced


C.R. No.15/2009

Sh. Jitender Sabharwal
S/o Sh. B.M. Sabharwal
R/o 48/25, Gali No.9,
Nai Basti, Anand Parbat,
New Delhi. ….. Petitioner


Smt. Rekha Sabharwal
W/o Sh. Jitender Sabharwal
D/o Sh. Kalwant Singh
R/o B­260, New Lahore Gali No.4,
Shastri Nagar, Delhi­31. …. Respondent

The petitioner has filed the present revision petition u/s 397/399 Cr.PC against the order dated 24.9.2009, passed by learned Metropolitan Magistrate, Karkardooma Courts, Delhi, vide which the Ld. MM ordered to pay a Rs.2,000/­ as interim maintenance to the respondent­ herein.

2 The trial court record was called. I have heard the learned counsel for petitioner as well as learned counsel for the respondent and have gone through the entire material available on the record.

3 The facts in brief are that Smt. Rekha Sabharwal filed the petition u/s 125 of Cr.PC against her husband Sh. Jitender Sabharwal for the grant of maintenance for herself and for her minor daughter, namely, Baby Mansi Sabharwal. Vide order dated 27.5.2005, the ld. Trial court declined to grant any interim maintenance to the wife as she was employed, but awarded a sum of Rs.2500/­ towards the maintenance of Baby Mansi.

4 During the pendency of the aforesaid petition before the Ld. MM, the wife filed an application u/s 127 Cr.PC claiming interim maintenance on the ground that now she is jobless and her services have since been terminated by the School authorities w.e.f. 29.3.2007. After hearing the arguments, the learned MM vide impugned order, directed the husband to pay a sum of Rs.2,000/­ towards the maintenance of her wife i.e., the responden t­herein, besides the payment of Rs.2,000/­ towards the maintenance of her minor daughter.

5 Feeling aggrieved of the order of the Ld. MM, the husband has preferred the present revision petition. The ground taken by the petitioner is that his wife is well qualified and educated lady and has all the capabilities to maintain herself. Further ground taken is that as per provisions of Chapter IX of Cr.PC, awarding of maintenance to the wife cannot be entertained who herself has deserted the company of her husband without any cause or reason. Further ground taken is that the Hon’ble High Court in Crl. M.C. No.6158/05 and 6159/05 vide order dated 24.1.2007, has also not ordered anything except continuing of maintenance of Rs.2,000/­ till the final disposal of the petition. The affidavit supporting the application u/s 127 of Cr.PC is defective and mere on that basis the maintenance cannot be awarded. Further ground taken is that the respondent is guilty of suppression of material facts.

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6 The husband has referred the judgment in case Mamta Jaiswal Versus Rajesh Jaiswal [Reported in 2000 (II) DMC 170 (MP)] and has stated that when the wife is well qualified and educated lady having capabilities to maintain herself then she is not entitled to any maintenance from her husband.

7 It is not in dispute that the wife is a well qualified and educated lady. It is matter of fact that earlier she was employed as an Assistant Teacher in a School. Thereafter, she was terminated from the School and then the wife approached the Ld. MM for the grant of maintenance. As per the recent judgment delivered by Hon’ble Supreme Court in case titled Shail Kumari Devi Versus Krishan Bhagwan Pathak @ Kishun B. Pathak (Reported in 2008 (3) SCC (Cri.) 839), it was held that maintenance is a right which accrues to a wife against her husband, the minute the former gets married to the latter. It is not only a moral obligation but is also a legal duty cast upon a husband to maintain his wife. In my view, when marriage has taken place, the husband is duty bound to maintain her wife and children irrespective of capabilities of her wife to earn any income. The husband cannot escape from his duty to maintain his wife on the ground that her wife is well educated and qualified.

8 The husband has taken the ground that as per Chapter IX of Cr.PC, a wife cannot be awarded maintenance when she herself has deserted her husband without any reason. This court is not the competent court to come to the conclusion whether the wife herself has willfully deserted the company of her husband. It is only the proceedings for the grant of interim maintenance and while awarding the interim maintenance, prima facie case of the wife is required to be seen and not to go into each and every aspect of the matter. The competent court of deciding the dispute between husband and wife regarding desertion is under the Hindu Marriage Act.

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9 The petitioner has taken the ground that the Hon’ble High Court has restricted the maintenance to the tune of Rs.2,000/­ only. The record shows that after passing the maintenance to the child @ Rs.2500/­ vide order dated 27.5.2005, the husband approached the Sessions Court in revision petition for reducing the maintenance amount to the child. The Sessions Court vide its order dated 1.10.2005, reduced the maintenance amount to the child from Rs.2500/­ to Rs.2,000/­. Feeling aggrieved of that order, the wife approached the Hon’ble High Court in Crl. M.C. No.6158/05 and 6159/05. The perusal of order dated 24.1.2007, passed by Hon’ble High Court shows that the wife approached the Hon’ble High Court only with regard to the maintenance of child and not for herself. Since nothing was demanded by the wife for herself from the Hon’ble High Court, therefore, the Hon’ble High Court had not debarred the wife for claiming maintenance for herself in future. The husband cannot succeed and take any advantage on the basis of order of Hon’ble High Court.

10 The next ground taken by the petitioner that the affidavit of the wife along with the application is defective and mere on the basis of affidavit, the maintenance cannot be granted. In my view, this ground is not sustainable. The wife not only annexed the affidavit along with the application, but also annexed the order of termination of her services by the School in which she was earlier appointed. The affidavit of the wife itself is sufficient to claim the maintenance and I do not find any fault in awarding interim maintenance to the wife.

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11 The other ground taken by the petitioner is that the the wife is guilty of suppression of material facts from the Court, therefore, she is not entitled for any maintenance. The petitioner has not mentioned the facts which have been suppressed by the wife from the Court. If any material has been concealed, the same is matter of evidence which can be ascertained only during the course of trial before the trial court. Moreover, the amount of interim maintenance is not the final award and the same can be adjusted at the time of passing the final order by the ld. Trial court.

12 It is matter of record that the ld. Trial court assessed the income of the husband as Rs.6800/­ per month. It is admitted fact that the husband is paying a sum of Rs.2,000/­ per month towards the maintenance of his minor daughter Baby Mansi. The ld. Trial court ordered the husband to pay a further sum of Rs.2,000/­ towards the maintenance of his wife i.e., the respondent­herein. In this way, the husband is required to pay a total sum of Rs.4,000/­ out of his monthly income of Rs.6800/­. Thus, keeping in view the the total monthly income of petitioner as Rs.6800/­, the total maintenance amount to be paid by the petitioner as Rs.4,000/­, is on the higher side. It would be difficult for a man to survive with the remaining income of Rs.2800/­.

13 With these observations, the order of ld. Trial court dated 24.9.2009 is hereby modified to the extent that the petitioner husband is directed to pay a sum of Rs.1,000/­ towards the maintenance of his wife i.e., the respondent­herein besides Rs.2000/­ as maintenance to his minor daughter Baby Mansi. The revision petition stands disposed of.

14 Record of the trial court along with a copy of the order be sent to the concerned court.

15 Revision file be consigned to record room.

Announced in the open Court ( P.S. TEJI )
Dated: 11.2.2010 District Judge­ VI­cum ASJ
Karkardooma Courts : Delhi

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