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Jayendra vs Poornima on 13 December, 2017

HIGH COURT OF MADHYA PRADESH BENCH AT INDORE
W.P.No.4967/2017
Jayendra Solanki vs. Poornima Solanki
Indore
13.12.2017

Shri Imtiyaz Ahmed and Shri A.Pathak, learned Counsel for
the petitioner.
Ms. Seema Sharma, learned Counsel for the respondent.

The petitioner has filed the present petition being aggrieved
by order dt. 18.4.2017 by which the Family Court has decided an
application filed under Section 24 of the Hindu Marriage Act and
directed the present petitioner to pay the amount of Rs. 5,000/- per
month as an interim maintenance.

The marriage between the petitioner and the respondent has
been solemnized on 10.12.2013 at Indore under the Hindu Customs
and Rituals. According to the petitioner, after two days of the
marriage, the respondent wife left his house and started living with
her father. Thereafter she has taken all the jewelry, clothes etc. and
did not return back to the matrimonial home. The petitioner made
various attempts to bring her back, but she was adamant not to live
with him as wife.

That the petitioner filed an application under Section 9 of the
Hindu Marriage Act for restitution of conjugal right before the
Family Court on 31.10.2015. In the said proceeding, the respondent
filed an application under Section 24 of the Hindu Marriage Act for
grant of interim maintenance. The learned Family Court vide
impugned order dt. 18.4.2017 has directed the husband to pay a sum
of Rs.5,000/- as interim maintenance hence, the present petition
before this Court.

Learned Counsel for the petitioner submits that at present the
petitioner is student as he is pursuing the studies of M.Tech. and
having no source of income. The respondent is having a Post
Graduate Degree and earning by way of teaching therefore, she does
not require any amount of maintenance from him hence, grant of
interim maintenance be set-aside.

Learned Counsel for the respondent submits that the
respondent-wife is entitled to lead a life in a similar manner as she
would have lived in the house of her husband. The petitioner was
working in a Multi National Company and was earning lacs of
rupees and he is capable of earning therefore, he cannot take
advantage that he is jobless and cannot pay the maintenance to the
wife. The petition is misconceived and is liable to be dismissed.

The petitioner has not filed any document to establish that the
respondent is having any permanent source of income whereas, the
petitioner himself is having engineering degree and at the time of
marriage was working. He may pursue higher education upto any
age but that would not escape him from liability to pay the
maintenance to his wife.

The Apex Court in the case of Shamima Farooqui vs.
Shahid Khan reported in 2015 (5) SCC 705 has held as under:-

15. The High Court, without indicating any reason, has
reduced the monthly maintenance allowance to Rs. 2,000/-. In
today’s world, it is extremely difficult to conceive that a woman
of her status would be in a position to manage within Rs.
2,000/- per month. In can never be forgotten that the inherent
and fundamental principle behind Section 125 CrPC is for
amelioration of the financial state of affairs as well as mental
agony and anguish that woman suffers when she is compelled to
leave her matrimonial home. The statute commands there has to
be some acceptable arrangements so that she can sustain herself.

The principle of sustenance gets more heightened when the
children are with her. Be it clarified that sustenance does not
mean and can never allow to mean a mere survival. A woman,
who is constrained to leave the marital home, should not be
allowed to feel that she has fallen from grace and move hither
and thither arranging for sustenance. As per law, she is entitled
to lead a life in the similar manner as she would have lived in
the house of her husband. And that is where the status and strata
of the husband comes into play and that is where the legal
obligation of the husband becomes a prominent one. As long as
the wife is held entitled to grant of maintenance within the
parameters of Section 125 CrPC, it has to be adequate so that
she can live with dignity as she would have lived in her
matrimonial home. She cannot be compelled to become a
destitute or a beggar. There can be no shadow of doubt that an
order under Section 125 CrPC can be passed if a person despite
having sufficient means neglects or refused to maintain the
wife. Sometimes, a plea is advanced by the husband that he
does not have the means to pay, for he does not have a job or his
business is not doing well. These are only bald excuses and, in
fact, they have no acceptability in law. If the husband is healthy,
able bodied and is in a position to support himself, he is under
the legal obligation to support his wife, for wife’s right to
receive maintenance under Section 125 CrPC, unless
disqualified, is an absolute right. While determining the
quantum of maintenance, this Court in Jabsir Kaur Sehgal v.
District Judge Dehradun Ors., (1997) 7 SCC 7 has held as
follows:-

“The court has to consider the status of the parties, their
respective needs, the capacity of the husband to pay having
regard to his reasonable expenses for his own maintenance and
of those he is obliged under the law and statutory but
involuntary payments or deductions. The amount of
maintenance fixed for the wife should be such as she can live in
reasonable comfort considering her status and the mode of life
she was used to when she lived with her husband and also that
she does not feel handicapped in the prosecution of her case. At
the same time, the amount so fixed cannot be excessive or
extortionate.”

16. Grant of maintenance to wife has been perceived as a
measure of social justice by this Court. In Chaturbhuj v. Sita
Bai, (2008) 2 SCC 316, it has been ruled that:-

“Section 125 CRPC is a measure of social justice and is
specially enacted to protect women and children and as noted by
this Court in Captain Ramesh Chander kaushal v. Veena
Kaushal, (1978) 4 SCC 70 falls within constitutional sweep of
Article 15(3) reinforced by Article 39 of the Constitution of
India. It is meant to achieve a social purpose. The object is to
prevent vagrancy and destitution. It provides a speedy remedy
for the supply of good, clothing and shelter to the deserved
wife. It gives effect to fundamental rights and natural duties of a
man to maintain his wife, children and parents when they are
enable to maintain themselves. The aforesaid position was
highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat,
(2005) 3 SCC 636.”

This being the position in law, it is obligation of the
husband to maintain his wife. He cannot be permitted to plead
that he is unable to maintain the wife due to financial
constraints as long as he is capable of earning.

17. In this context, we may profitably quote a passage from
the judgment rendered by the High Court of Delhi in Chander
Prakash Bodhraj v. Shila Rani Chander Prakash, AIR 1968
Delhi 174 wherein it has been opined thus:-

“An able-bodied young man has to be presumed to be capable
of earning sufficient money so as to be able reasonably to
maintain his wife and child and he cannot be heard to say that
he is not in a position to earn enough to be able to maintain
them according to the family standard. It is for such able-bodies
person to show to the Court cogent grounds for holding that he
is unable to reasons beyond his control, to earn enough to
discharge his legal obligation of maintaining his wife and child.
When the husband does not disclose to the Court the exact
amount of his income, the presumption will be easily
permissible against him.”

18.From the aforesaid enunciation of law it is limpid that
the obligation of the husband is on a higher pedestal when the
question of maintenance of wife and children arises. When the
woman leaves the matrimonial home, the situation is quite
different. She is deprived of many a comfort. Sometimes the
faith in life reduces. Sometimes, she feels she has lost the
tenderest friend. There may be feeling that her fearless courage
has brought her the misfortune. At this stage, the only comfort
that the law can impose is that the husband is bound to give
monetary comfort. That is the only soothing legal balm, for she
cannot be allowed to resign to destiny. Therefore, the lawful
imposition for grant of maintenance allowance.

The Apex Court in the case of Manish Jain vs. Akanksha
Jain reported in AIR 2017 SC 1640 held as under:-

14. Section 24 of the HM Act empowers the Court in any
proceeding under the Act, if it appears to the Court that either the
wife or the husband, as the case may be, has no independent
income sufficient for her or his support and the necessary
expenses of the proceeding, if may, on the application of any one
of them order the other party to pay to the petitioner the expenses
of the proceeding and monthly maintenance as may seem to be
reasonable during the proceeding, having regard to also the
income of both the applicant and the respondent. Heading of
Section 24 of the Act is “Maintenance pendente lite and expenses
of proceedings.” The Section, however, does not use the word
“maintenance”, but the word”support” can be interpreted to mean
as Section 24 is intended to provide for maintenance pendente
lite.

15. An order for maintenance pendente lite or for costs of the
proceedings is conditional on the circumstance that the wife or
husband who makes a claim for the same has no independent
income sufficient for her or his support or to meet the necessary
expenses of the proceeding. It is no answer to a claim of
maintenance that the wife is educated and could support herself.
Likewise, the financial position of the wife’s parents is also
immaterial. The Court must take into consideration the status of
the parties and the capacity of the spouse to pay maintenance and
whether the applicant has any independent income sufficient for
her or his support. Maintenance is always dependent upon factual
situation; the Court should, therefore, mould the claim for
maintenance determining the quantum based on various factors
brought before the Court.

In view of the above, the petitioner is not having any
case to interfere with impugned order. The learned Family Court has
rightly passed the order for grant of maintenance Rs. 5,000/-. To live
in Indore city amount of Rs.5,000/- is very reasonable amount for
maintenance of a lady. No interference is called for.

The petition is, hereby, dismissed.

(Vivek Rusia)
Judge

M.Jilla.

Maharukh jilla
2017.12.19
13:45:02
+05’30’

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