No Maintenance to earning wife?

Hello Sony,

do u have the complete judgement of SC or HC? could you please share it

look at mamta jaiswal case. what u are looking for exactly ?

Smt. Mamta Jaiswal vs Rajesh Jaiswal on 24/3/2000

ORDER

J.G. Chitre, J.

1. Heard the case

The petitioner Mamta Jaiswal has acquired qualification as M.Sc., M.C., M.Ed. and was working in Gulamnabi Azad College of Education, Pusad, Dist. Yeotmal (MHS). The husband Rajesh Jaiswal is sub-engineer serving in Pithampur factory. The order which is under challenge by itself shows that Mamta Jaiswal, the wife was earning Rs. 4000/- as salary when she was in service in the year 1994. The husband Rajesh Jaiswal is getting salary of Rs. 5852/-. The matrimonial Court awarded alimony of Rs. 800/- to Mamta Jaiswal per month as pendente lite alimony Rs. 400/- per month has been awarded to their daughter Ku. Diksha Jaiswal. Expenses necessary for litigation has been awarded to the tune of Rs. 1500/-. The matrimonial Court has directed Rajesh Jaiswal to pay travelling expenses to Mamta Jaiswal whenever she attends Court for hearing of the matrimonial petition pending between them. Matrimonial petition has been filed by husband Rajesh Jaiswal for getting divorce from Mamta Jaiswal on the ground of cruelty. This revision petition arises on account of rejection of the prayer made by Mamta Jaiswal when she prayed that she be awarded the travelling expenses of one adult attendant who is to come with her for attending matrimonial Court.

2. Shri S.K. Nigam, pointed out that the petition is mixed natured because if at all it is touching provisions of Section 26 of Hindu Marriage Act, 1955 (hereinafter referred to as Act for convenience) then that has to be filed within a month. Shri Mev clarified that it is a revision petition mainly meant for challenging pendente lite alimony payable by the husband in view of Section 24 of the Act. He pointed out the calculations of days in obtaining the certified copies of the impugned order. In view of that, it is hereby declared that this revision petition is within limitation, entertainable, keeping in view the spirit of the Act and Section 24 of it.

3. A wife is entitled to get pendente lite alimony from the husband in view of provisions of Section 24 of the Act if she happens to be a person who has no independent income sufficient for her to support and to make necessary expenses of the proceedings. The present petitioner, the wife, Mamta Jaiswal has made a prayer that she should be paid travelling expenses of one adult member of her family who would be coming to matrimonial Court at Indore as her attendant. Therefore, the question arises firstly, whether a woman having such qualifications and once upon a time sufficient income is entitled to claim pendente lite alimony from her husband in a matrimonial petition which has been filed against her for divorce on the ground of cruelty. Secondly, whether such a woman is entitled to get the expenses reimbursed from her husband if she brings one adult attendant alongwith her for attending the matrimonial Court from the place where she resides or a distant place.

4. In the present case there has been debate between the spouses about their respective income. The husband Rajesh has averred that Mamta is still serving and earning a salary which is sufficient enough to allow her to support herself. Wife Mamta is contending that she is not in service presently. Wife Mamta is contending that Rajesh, the husband is having salary of Rs. 5852/- per month. Husband Rajesh is contending that Rs. 2067/- out his salary, are deducted towards instalment of repayment of house loan. He has contended that Rs. 1000/- are spent in his to and fro transport from Indore to Pithampur. He has also detailed by contending that Rs. 200/- are being spent for the medicines for his ailing father. And, lastly, he has contended that by taking into consideration these deductions a meagre amount remains avialable for his expenditure.

5. It has been submitted that Mamta Jaiswal was getting Rs. 2000/- as salary in the year 1994 and she has been removed from the job of lecturer. No further details are available at this stage. Thus, the point is in an arena of counter allegations of these fighting spouses who are eager to peck each other.

6. In view of this, the question arises as to in what way Section 24 of the Act has to be interpreted. Whether a spouse who has capacity of earning but chooses to remain idle, should be permitted to saddle other spouse with his or her expenditure ? Whether such spouse should be permitted to get pendente life alimony at higher rate from other spouse in such condition ? According to me, Section 24 has been enacted for the purpose of providing a monetary assistance to such spouse who is incapable of supporting himself or herself in spite of sincere efforts made by him or herself. A spouse who is well qualified to get the service immediately with less efforts is not expected to remain idle to squeeze out, to milk out the other spouse by relieving him of his or her own purse by a cut in the nature of pendente life alimony. The law does not expect the increasing number of such idle persons who by remaining in the arena of legal battles, try to squeeze out the adversory by implementing the provisions of law suitable to their purpose. In the present case Mamta Jaiswal is a well qualified woman possessing qualification like M. Sc. M.C. M.Ed. Till 1994 she was serving in Gulamnabi Azad Education College. It impliedly means that she was possessing sufficient experience. How such a lady can remain without service ? It really puts a big question which is to be answered by Mamta Jaiswal with sufficient congent and believable evidence by proving that in spite of sufficient efforts made by her, she was not able to get service and, therefore, she is unable to support herself. A lady who is fighting matrimonial petition filed for divorce, can not be permitted to sit idle and to put her burden on the husband for demanding pendente lite alimony from him during pendency of such matrimonial petition. Section 24 is not meant for creating an army of such idle persons who would be sitting idle waiting for a 'dole' to be awarded by her husband who has got a grievance against her and who has gone to the Court for seeking a relief against her. The case may be vice-versa also. If a husband well qualified, sufficient enough to earn, sits idle and puts his burden on the wife and waits for a 'dole' to be awarded by remaining entangled in litigation. That is also not permissible. The law does not help indolents as well idles so also does not want an army of self made lazy idles. Everyone has to earn for the purpose of maintenance of himself or herself, atleast, has to make sincere efforts in that direction. If this criteria is not applied, if this attitude is not adopted, there would be a tendency growing amongst such litigants to prolong such litigation and to milk out the adversory who happens to be a spouse, once dear but far away after an emerging of litigation. If such army is permitted to remain in existence, there would be no sincere efforts of amicable settlements because the lazy spouse would be very happy to fight and frustrate the efforts of amicable settlement because he would be reaping the money in the nature of pendente lite alimony, and would prefer to be happy in remaining idle and not bothering himself or herself for any activity to support and maintain himself or herself. That can not he treated to he aim, goal of Section 24. It is indirectly against healthyness of the society. It has enacted for needy persons who in spite of sincere efforts and sufficient efforts arc unable to support and maintain themselves and arc required to fight out the litigation jeopardising their hard earned income by toiling working hours.

7. In the present case, wife Mamta Jaiswal, has been awarded Rs. 800/-per month as pendente lite alimony and has been awarded the relief of being reimbursed from husband whenever she makes a trip to Indore from Pusad, Dist. Yeotmal for attending matrimonial Court for date of hearing. She is well qualified woman once upon time obviously serving as lecturer in Education College. How she can be equated with a gullible woman of village ? Needless to point out that a woman who is educated herself with Master's Degree in Science, Masters Degree in Education, would not feel herself alone in travelling from Pusad to Indore, when atleast a bus service is available as mode of transport. The submission made on behalf of Mamta, the wife, is not palatable and digestable. This smells of oblique intention of putting extra financial burden on the husband. Such attempts are to be discouraged.

8. In fact, well qualified spouses desirous of remaining idle, not making efforts for the purpose of finding out a source of livelihood, have to be discouraged, if the society wants to progress. The spouses who are quarrelling and coming to the Court in respect of matrimonial disputes, have to be guided for the purpose of amicable settlement as early as possible and, therefore, grant of luxurious, excessive facilities by way of pendente lite alimony and extra expenditure has to be discouraged. Even then, if the spouses do not think of amicable settlement, the matrimonial Courts should dispose of the matrimonial petitions as early as possible. The matrimonial Courts have to keep it in mind that the quarrels between the spouses create dangerous impact on minds of their offsprings of such wedlocks. The offsprings do not understand as to where they should see ? towards father or towards mother ? By seeing them both fighting, making allegations against each other, they get bewildered. Such bewilderedness and loss of affection of parents is likely to create a trauma on their minds and brains. This frustration amongst children of tender ages is likely to create complications which would ruin their future. They can not be exposed to such danger on account of such fighting parents.

9. In the present case the husband has not challenged the order. Therefore, no variation or modification in it is necessary though this revision petition stands dismissed. The matrimonial Court is hereby directed to decide the matrimonial petition which is pending amongst these two spouses as early as possible. The matrimonial Court is directed to submit monthwise report about the progress of the said matrimonial petition to this Court so as to secure a continuous, unobstructed progress of matrimonial petition. No order as to costs. The amount of pendente lite alimony payable to Mamta Jaiswal by husband Rajesh Jaiswal should be deposited by him within a month by counting the date from the date of order. The failure on this aspect would result in dismissal of his matrimonial petition. He should continue payment of Rs. 400/-pcr month to his daughter Ku. Diksha Jaiswal right from the date of presentation of application of her maintenance i.e., 14-5-98. That has to be also deposited within a month. He may take out sufficient money for that from his savings or take a loan from some good concern or loan granting agencies. Failure in this aspect also would result in dismissal of his petition.

which state u belong to? if u can specify we may be able to help u better.

Thanks..!!  I was just looking for judgements on denial of maintenance for highly educated and earning/capable of earning by wife

Hello Sony ji,

I belong to andhra pradesh state.

Please look into this link too, I do not have at the moment full judgement. This is a judgement from SC, dated 2005

https://www.hindustantimes.com/Working-women-can-claim-maintenance/Article1-260372.aspx

Dear Renuka Gupta,

I found that Judgement here it is:

CASE NO.:
Appeal (crl.)  1627 of 2007

PETITIONER:
Chaturbhuj

RESPONDENT:
Sita Bai

DATE OF JUDGMENT: 27/11/2007

BENCH:
Dr. ARIJIT PASAYAT & AFTAB ALAM

JUDGMENT:
J U D G M E N T

CRIMINAL APPEAL NO. 1627 OF 2007
(Arising out of SLP (Crl.) No.4379 of 2006)

Dr. ARIJIT PASAYAT, J.

1.    Leave granted.

2.    Challenge in this appeal is to the order passed by a
learned Single Judge of the Madhya Pradesh High Court,
Indore Bench, dismissing the revision petition filed by the
appellant in terms of Section 482 of the Code of Criminal
Procedure, 1973 (in short 'Cr.P.C.'). The challenge before the
High Court was to the order passed by learned Judicial
Magistrate, First Class, Neemuch, M.P. as affirmed by the 
learned Additional Sessions Judge, Neemuch, M.P.  The
respondent had filed an application under Section 125 of
Cr.P.C. claiming maintenance from the appellant.
Undisputedly, the appellant and the respondent had entered
into marital knot about four decades back and for more than
two decades they were living separately.  In the application it
was claimed that she was unemployed and unable to maintain
herself. Appellant had retired from the post of Assistant
Director of Agriculture and was getting about Rs.8,000/- as
pension and a similar amount as house rent.  Besides this, he
was lending money to people on interest.  The appellant
claimed Rs.10,000/- as maintenance.  The stand of the
appellant was that the applicant was living in the house
constructed by the present appellant who had purchased 7
bighas of land in Ratlam in the name of the applicant. She let
out the house on rent and since 1979 was residing with one of
their sons.  The applicant sold the agricultural land on
13.3.2003.  The sale proceeds were still with the applicant. 
The appellant was getting pension of about Rs.5,700/- p.m.
and was not getting any house rent regularly.  He was getting
2-3 thousand rupees per month.  The plea that the appellant
had married another lady was denied. It was further
submitted that the applicant at the relevant point of time was
staying in the house of the  appellant and electricity and water
dues were being paid by him.  The applicant can maintain
herself from the money received from the sale of agricultural
land and rent.  Considering the evidence on record, the trial
Court found that the applicant-respondent did  not have
sufficient means to maintain herself. 

3. Revision petition was filed by the present appellant. 
Challenge was to the direction to pay Rs.1500/- p.m. by the
trial Court.  The stand was that the applicant was able to
maintain herself from her income was reiterated.  The
revisional court analysed the evidence and held that the
appellant's monthly income was more than Rs.10,000/- and
the amount received as rent by the respondent-claimant was
not sufficient to maintain herself.  The revision was
accordingly dismissed.  The matter was further carried before
the High Court by filing an application in terms of Section 482
Cr.P.C.  The High Court noticed that the conclusions have
been arrived at on  appreciation of evidence and, therefore,
there is no scope for any interference.                      

4. Section 125 Cr.P.C. reads as follows:

 
"125. (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) 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.";]
(3) If any person so ordered fails without sufficient
cause to comply with the order, any such Magistrate
may, for every breach of the order, issue a warrant
for levying the amount due in the manner provided
for levying fines, and may sentence such person, for
the whole, or any port of each month's allowance 4
[allowance for the maintenance or the interim
maintenance and expenses of proceeding , as the case
may be] remaining unpaid after the execution of the
warrant, to imprisonment for a term which may
extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the
recovery of any amount due under this section
unless application be made to the Court to levy
such amount within a period of one year from the
date on which it became due:
Provided further that if such person offers to
maintain his wife on condition of her living with
him, and she refuses to live with him, such
Magistrate may consider any grounds of refusal
stated by her, and may make an order under this
section notwithstanding such offer, if he is satisfied
that there is just ground for so doing.
Explanation.-If a husband has contracted marriage
with another woman or keeps a mistress, it shall
be considered to be just ground for his wife's
refusal to live with him.
(4) No wife shall be entitled to receive an 4 [allowance
for the maintenance or the interim maintenance and
expenses of proceeding , as the case may be] from her
husband under this section if she is living in
adultery, or if, without any sufficient reason, she
refuses to live with her, husband, or if they are living
separately by mutual consent.
(5) On proof that any wife in whose favour an order
has been made under this section is living in
adultery, or that without sufficient reason she
refuses to live with her husband, or that they are
living separately by mutual consent, the Magistrate
shall cancel the order."

5. The object of the maintenance proceedings is not to
punish a person for his past neglect, but to prevent vagrancy
by compelling  those who can provide support to those who
are unable to support themselves and who have a moral claim
to support.  The phrase "unable to maintain herself" in the
instant case would mean that means available to the deserted
wife while she was living with her husband and would not take
within itself the efforts made by the wife after desertion to
survive somehow.  Section 125 Cr.P.C. 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. Mrs. Veena Kaushal and Ors. (AIR 1978 SC 1807)
falls within constitutional sweep of Article 15(3) reinforced by
Article 39 of the Constitution of India, 1950 (in short the
'Constitution'). 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 food, clothing and shelter to
the deserted wife.  It gives effect to fundamental rights and
natural duties of a man to maintain his wife, children and
parents when they are unable to maintain themselves.  The
aforesaid position was highlighted in Savitaben Somabhai
Bhatiya v.  State of Gujarat and Ors. (2005 (2) Supreme 503).

6. Under the law the burden is placed in the first place
upon the wife to show that the means of her husband are
sufficient. In the instant case there is no dispute that the
appellant has  the requisite means. 

7. But there is an inseparable condition which has also to
be satisfied that the wife was unable to maintain herself. 
These two conditions are in addition to the requirement that
the husband must have neglected or refused to maintain his
wife.  It is has to be established that the wife was unable to
maintain herself.  The appellant has placed material to show
that the respondent-wife was earning some income. That is
not sufficient to rule out application of Section 125 Cr.P.C. It
has to be established that with the amount she earned the
respondent-wife was able to maintain herself.   

8. In an illustrative  case where wife was surviving by
begging,  would not amount to her ability to maintain herself. 
It can also be not said that the wife has been capable of
earning but she was not making an effort to earn. Whether the
deserted wife was unable to maintain herself, has to be
decided on the basis of the material placed on record.  Where
the personal income of the wife is insufficient she can claim
maintenance under Section 125 Cr.P.C. The test is  whether
the wife is in a position to maintain herself in the way she was
used to in the place of her husband.  In 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.           

9. In the instant case the trial Court, the Revisional Court
and the High Court have analysed the evidence and held that
the respondent wife was unable to maintain herself.  The
conclusions are essentially factual and they are not perverse.  
That being so there is no scope for interference in this appeal
which is dismissed.

Unable to maintain herself in Maintenance

Link,https://mynation.net/docs/1627-2007/

If you can prove she was earning 50% of your salary then court will deny maintenace.

If you can prove she is out of job just for maintenance then she won't get any thing.

If your salary is less then her you can also claim maintenance.

In early 2010 a judgement passed by Delhi high court refusing maintenance for wife who was earning 80,000 pm as software engineer.

Also try to find outs her assets cash in banks/investments and FD etc all these will be considered, maintenance is for "living" not to accumulate wealth.

Also if wife left your home on her own without establishing any reason then court will deny any money. search net for judgement..

https://shekidnappedmychildren.wordpress.com/2008/04/11/no-maintenance-for-wife-if-she-cannot-prove-cruelty/

Hello All, Thanks for your information..!!

What is important is to see how much both the parties are earning and who has applied for the divorce.  If a woman has filed for the divorce and is earning sufficiently than she should not be entitled for maintenance and should be given a huge alimony if she is able to prove the basis on which she has applied divorce.  However, on the other hand if the man has applied for divorce and he is earning more than wife, then why should the woman or her children be put through hardship by her changed lifestyle for no fault of hers.  Till the man is able to prove her fault he is liable to maintain her in the standard of living she was used to with both their earnings.