Wife’s Capability to Earn: Is No Reason to Reduce Maintenance Awarded to Her

>>> On JANUARY 18, 2017, The Apex Court has held that: Merely because the wife is ‘capable of earning’, it is not a reason to reduce the maintenance awarded to her.

The bench of judges said that:

“Whether the wife is capable of earning or whether she is actually earning are two different requirements and the high court went wrong in reducing the compensation awarded to her by the family court on the sole basis that she was ‘capable of earning’.”

Making an interesting observation, the high court had rejected the contention of the husband that his wife was working as a lecturer and is earning. But observing that she is ‘capable of earning’, the high court reduced the maintenance amount of Rs.25,000/- awarded by the family court to herself and her son, to Rs.12,000/-.

While the Apex Court: also observed that the income of the husband, is more than Rs.80,000/- per month and he is a senior lecturer in a college, and also the owner of 26 acres of irrigated land.

>>> Factors deciding quantum of maintenance: under CrPC 125

Learning from this judgment: that wife’s property, income sources must be considered in CrPC 125.

And the order of maintenance if made to pay from date of application, need not record the reasons for doing so.

In general it is payable from date of order.

4. It was the case of the appellant No.1 that her husband had neglected to maintain his wife-appellant No.1 as also his legitimate daughter-appellant No.2.

On November 20, 1999, an application was filed by the appellants requesting the Court to grant ‘interim’ maintenance during the pendency of proceedings before the Court.

The learned Chief Judicial Magistrate allowed the said application, granted the prayer and fixed interim maintenance at the rate of Rs.300/- p.m. for each of the applicants with effect from February 12, 1998. The parties, thereafter, led the evidence which was closed on September 3, 2001 and the case was adjourned for final arguments.

During the pendency of proceedings, however, Family Court came to be established and the case was transferred to the Principal Judge, Family Court, Bhojpur.

5. From the evidence, it was clear that the respondent was working as Cashier with the State Bank of India, Bihita Branch and was getting gross salary of Rs.18,508-98. After deduction, his pay packet was of Rs.9,831-76. The respondent retired from service in January, 2006. The appellants filed a petition on September 12, 2006 with a prayer to direct the respondent to pay arrears of maintenance which came to Rs.11,600/- and the

Family Court on October 30, 2006, allowed the application and directed the respondent to pay the entire amount of the arrears in lump sum by the next date of hearing.

6. The matter was finally disposed of by the Family Court on November 29, 2006 and the learned Principal Judge of the Family Court directed the respondent to pay maintenance of Rs.2,000/- p.m. to applicant-appellant No.1- wife and Rs.1,000/- p.m. to applicant-appellant No.2-minor daughter with effect from the date of application i.e. July 21, 1997 with further 4 order to pay arrears within three months of the order after deducting the amount which had already been paid under the interim order passed by the Court earlier.

7. The appellant was dissatisfied with the order passed by the Principal Judge of the Family Court and preferred Criminal Revision No. 67 of 2007 in the High Court.

8. The High Court partly allowed the Revision and modified the direction issued by the Family Court. The High Court reduced the amount of maintenance from Rs.2,000/- to Rs.750/- to appellant No.1-wife and from Rs.1,000/- to Rs.750/- to appellant No.2- daughter. The High Court also directed that the amount of maintenance would be payable to the applicants-appellants not from the date of the application i.e. July 21, 1997 but from the date of the order i.e. November 29, 2006. The said order is challenged by the appellants in the present appeal.

11. Learned counsel for the appellants contended that the High Court was wrong in partly allowing Revision filed by the respondent and in modifying the directions issued by the Family Court.

It was submitted that the High Court was in clear error in reducing the amount of maintenance to appellant No.1-wife and appellant No.2-daughter. Similarly, the High Court was in error in holding that the appellants were not entitled to maintenance from the date of application but only from the date of order passed by the Court. It was, therefore, submitted that the order passed by the High Court deserves to be set aside by restoring the order of the Family Court.

15. Before we proceed to consider these questions, it would be appropriate if we examine the relevant provisions of law.

Subsections (1) and (2) of Section 125 of the Code, as they were originally enacted in 1973, read thus:

125. Order for maintenance of wives, children and parents.-

(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself,

or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself,

or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is by reason of any physical or mental abnormality or injury unable to maintain itself,

or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.

Explanation.- For the purposes of this Chapter, -

(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 ( 9 of 1875) is deemed not to have attained his majority;

(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

(2) Such allowance shall be payable 1 from the date of the order, or, if so ordered, from the date of the application for maintenance. (emphasis supplied)

16. Bare reading of sub-section (1) of Section 125 leaves no room for doubt that if any person having sufficient means, neglects or refuses to maintain his wife who is unable to maintain herself or his legitimate (or illegitimate) child (children) unable to maintain itself (themselves), or his father, or mother, unable to maintain himself or herself, a Court, upon proof of negligence or refusal, order such person to pay maintenance to his wife or child (children) or parents, as the case may be. It is also clear that maximum amount which could be ordered to be paid was Rs.500/- p.m. which was clear from the expression “not exceeding Rs.500/- in the whole”.

17. It is further clear that under subsection (2), such maintenance can be made payable “from the date of order” or “if so ordered, from the date of the application for maintenance”.

18. By the Code of Criminal Procedure (Amendment) Act, 2001 (Act 50 of 2001), subsections (1) and (2) came to be amended with effect from September 24, 2001. The amended sub-sections now read thus:

125. Order for maintenance of wives, children and parents.-

(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself,

or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself,

or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is by reason of any physical or mental abnormality or injury unable to maintain itself,

or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.

Provided further that the Magistrate may, during the pungency of the proceeding regarding monthly allowance for the maintenance under this subsection, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:

Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.

Explanation.- For the purposes of this Chapter, -

(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875( 9 of 1875) is deemed not to have attained his majority;

(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

(2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be. (emphasis supplied)

21. So far as ‘interim’ maintenance is concerned, it is true that Section 125 of the Code as it originally enacted did not expressly empower the Magistrate to make such order and direct payment of interim maintenance. But the Code equally did not prohibit the Magistrate from making such order.

25. Parliament considered the object of the legislation, the decision of this Court in Savitri and the fact that though the remedy is of a summary nature, the applicant who is unable to maintain herself may have to wait for ‘several years’ for getting such relief. It, therefore, amended the provision expressly authorizing the Magistrate to grant interim maintenance.

41. Regarding recording of reasons, the Bench observed that in either case i.e. grant of maintenance from the date of the order or from the date of the application, the Court is required to record reasons.

44. In our considered opinion, the High Court is not right in holding that as a normal rule, the Magistrate should grant maintenance only from the date of the order and not from the date of the application for maintenance. And if he intents to pass such an order, he is required to record reasons in support of such order.

45. Moreover, duration of litigation is not within the power or in the hands of the applicant and entitlement to maintenance should not be left to the uncertain date of disposal of the case. Keeping in view this hard reality, this Court in Savitri held that in absence of prohibition to grant ‘interim’ maintenance such power could be read in the salutary provision of Section 125 of the Code ensuring maintenance to unable wife to maintain herself during the pendency of proceedings. Even Parliament took into account the reality and by the Amendment Act, 2001 express provision has been made for the purpose. 46. Again, maintenance is a right which accrues to a wife against her husband the minute the former gets married to the latter.

50. In view of overall facts and circumstances, in our opinion, ends of justice would be served if we hold that both the appellants are entitled to an amount of Rs.1000/- each per month as maintenance. As already clarified, the appellants would be entitled to the said amount of maintenance from the date the Amendment Act, 2001 came into force. i.e. September 24, 2001. So far as the order of payment of ‘interim’ maintenance passed by the Magistrate is concerned, the same was in consonance with law and no interference is called for.

SHAIL KUMARI DEVI & ANR. …

VERSUS

KRISHAN BHAGWAN PATHAK @ KISHUN B. PATHAK
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4666 OF 2008
ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.17260 OF 2007
http://judis.nic.in/supremecourt/imgs1.aspx?filename=32128

>>>Petitions are filed under S.19(4) of the Family Court Act praying to set aside the judgment dated 22.11.2012in Crl.Misc.397/2011 by the Family Court, Bijapur.

Petitions coming on for Admission this day, the court made the following:-

ORDER

Petitioner in RPFC 501/13 is the husband who has moved this Court against the quantum of maintenance awarded by the Family Court.

Simultaneously, another petition RPFC 542/2013 is filed by the wife and son of the petitioner husband seeking enhancement of maintenance.

Petitioner is said to be working as a Lecturer and in a matrimonial dispute between him and the 1st respondent wife, the Family Court has ordered to pay maintenance of Rs.15,000/- to the wife and Rs.10,000/- per month to the son. According to the petitioner's counsel, the 1st respondent is also working as a Teacher and is earning.

However, according to the counsel representing the 1st respondent, there is no proof of income being produced and she has no permanent source of income. Accordingly, he has sought for rejection of the application filed by the petitioner and to enhance the maintenance awarded.

Having regard to the fact that the wife is also capable of earning, she could be awarded Rs.6,000/- per month and the son could be awarded Rs.6,000/- per month. Ordered accordingly.

Amount in deposit be adjusted towards arrears and also for future payment. Amount in deposit be released in favour of the respondent wife and child, as per the modified award.

Petition (RPFC 501/2013) filed by the husband is allowed in part. Petition (RPFC 542/2013) filed by the wife and son is dismissed.

Karnataka High Court
Sri. Khobbanna S/O Siddappa Patil vs Smt. Shailaja W/O Khobbanna Patil on 17 April, 2013

>>> This Criminal Petition is filed under Section 482 of Code of Criminal Procedure, 1973, praying to set aside the order dated 10.03.2014 by the Judge, Family Court at Bijapur passed in Criminal Miscellaneous No.474/2013.

These petitions coming on for admission this day, the Court made the following:

ORDER

These petitions are filed questioning the proceedings seeking recovery of maintenance ordered by the Court below.

2. It transpires that the Court below had directed payment of maintenance at the rate of Rs.25,000/-. It was challenged before this Court in earlier proceedings, where this Court had reduced the same to Rs.12,000/-.

The said order having been challenged before the Apex Court, the Apex Court has stayed the operation of the order of this Court. Consequently, the order passed by the trial Court has revived.

Therefore, the respondents having instituted proceedings to recover maintenance at the rate of Rs.25,000/-, cannot be faulted. If the petitioner wants to contend otherwise, it is for him to challenge the order of the Apex Court.

3. Therefore, the present petitions are misconceived and are rejected.

Karnataka High Court
Shri Khobbanna S/O Siddappa Patil vs Smt.Shailaja W/O Khobbanna Patil ... on 10 June, 2016

>>> Apex Court: “Whether the appellant No.1 is capable of earning or whether she is actually earning are two different requirements. “

O R D E R:

Leave granted. The matters have been called out twice but there is no appearance on behalf of the respondent. We have gone through the impugned judgment and order dated 17.04.2013 passed by the High Court and order dated 22.11.2012 passed by the Family Court. The Family Court had directed payment of maintenance for an amount of Rs.15,000/- per month to the appellant - wife and Rs.10,000/- per month to the son.

The High Court while considering the correctness of the order passed by the Family Court did not accept the contention of the respondent' husband that the appellant' wife was working.

All that was held was that the appellant' wife was capable of earning and therefore maintenance was reduced to an amount of Rs.6000/- from Rs.15,000/- for her and Rs.6000/- from Rs.10,000/- for the son.

In other words, out of an amount of Rs.25,000/- (total) awarded by the Family Court for the appellant No.1 and the son, the High Court has reduced the amount to Rs.12,000/- (total).

We are not satisfied with the order passed by the High Court considering the income of the respondent' husband, which we have been told, is more than Rs.80,000/- per month since the respondent – husband is a Senior Lecturer in a college. It is stated by learned counsel for the appellants that the respondent' husband is also the owner of 26 acres of irrigated land.

That apart, we find that the High Court has proceeded on the basis that the appellant No.1 was capable of earning and that is one of the reasons for reducing the maintenance granted to her by the Family Court.

Whether the appellant No.1 is capable of earning or whether she is actually earning are two different requirements.

Merely because the appellant No.1 is capable of earning is not, in our opinion, sufficient reason to reduce the maintenance awarded by the Family Court.

Under the circumstances, we set aside the order passed by the High Court and restore the order passed by the Family Court.

It appears that the son has now attained the age of majority. If that is so, the son will be entitled to maintenance only till the age of reaching majority.

Subject to the above, the order passed by the Family Court is affirmed.

The appeals are accordingly allowed.

SHAILJA & ANR.
VERSUS
KHOBBANNA

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs. 125-126 of 2017
(Special Leave Petition (Crl.) No(s). 6025-6026/2013)

....................J.
[MADAN B. LOKUR]

....................J.
[PRAFULLA C. PANT]

NEW DELHI ;
JANUARY 18, 2017.