Able-Bodied Husband Can't Deny Maintenance To Wife Having Cancer Claiming Closure Of Business Without Proof: Gujarat High Court
The Gujarat High Court dismissed a man's appeal challenging family court order directing him to pay maintenance to his wife–under treatment for cancer, noting that closure of the husband's business or recession, in absence of any material, was not a ground to deny maintenance specially in view of the able-bodied principle.
In doing so, the court, referring to various judgments underscored that the law was clear wherein it was the duty of the husband to maintain his wife.
Justice Hasmukh D Suthar in his order said:
"It is needless to say considering the statement and status with which the respondent – wife was living at the time of her desertion and therefore, learned Sessions Judge has not committed any error considering the peculiar facts of the case more particularly considering the fact that the respondent – wife has to incur medical expenses towards her ailment of cancer, award of Rs.50,000/- towards monthly maintenance is just and proper and merely because the business of the applicant is closed down and recession is not a ground to deny the maintenance more particularly considering the able-bodied principle and considering potentiality to earn more. It goes without saying that it is the duty of the husband to maintain his wife and children...
The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able bodied and has educational qualifications. Further, while awarding the maintenance, Court has to consider all relevant factors and the test for determination of maintenance in matrimonial dispute depends on the financial status of wife and the standard of living that the wife was accustomed to in her matrimonial home and amount of maintenance should aid the wife to live in a similar life style as she enjoyed in the matrimonial home. Merely applicant – husband is having a liability to repay loan is not a ground to reduce the maintenance amount".
The court noted the wife's ailment and treatment papers after considering the same the Family Judge had awarded maintenance.
"Meanwhile, alleged recession or close down of the business in absence of any material is not enough to deny the maintenance more particularly considering able bodied husband is presumed to be capable of earning sufficient money to maintain his wife and cannot contend that he is not in position to sufficiently maintain his family and the onus is on the husband to establish that the necessary material that there are sufficient grounds to show that he is unable to maintain the family and discharge his legal obligation for reason beyond his control. Herein, husband failed to disclose not only actual income but any other circumstances as argued before this Court," the court said.
Due to the petitioner's alleged failure to provide regular financial support for day-to-day expenses the wife filed an application for maintenance under Section 125 CrPC before family court. Eventually the family court in 2021 directed the petitioner to pay ₹50,000 per month towards maintenance to respondent No.2 from the date of application i.e. 12.03.2019. Against this the husband moved the high court.
The husband argued that the family court failed to consider that the petitioner's business has suffered, particularly post-COVID-19, resulting in substantial reduction in income. Moreover, the wife had admitted that the petitioner has been regularly depositing amounts in the joint bank account and bearing household as well as educational expenses of their son. It was submitted the family court order imposes an excessive and unrealistic financial burden on the petitioner beyond his means and has been passed ignoring material evidence on record.
It was submitted that due to recession in the business, petitioner is unable to pay such exorbitant amount of maintenance to the wife and hence the plea to quash the order.
The wife submitted that husband was proprietor of an enterprise wherein he is the authorized dealer of Canon Company. It was submitted that auction of the house is mentioned only with a view to avoid the liability. It was submitted that time and again the petitioner has obtained loan after the incident of alleged auction.
It was also alleged that the husband had suppressed his income to portray that he is earning only Rs.2 Lakh per annum. It was also alleged that while husband contended that his distributorship was closed however documentary evidence revealed that cash of Rs.25 Lakh was stolen from the proprietorship for which husband had approached the police which reveals that business was continuous and petitioner was earning.
The court noted that the family court had observed that the petitioner had been ignoring the wife for five years which is why she left the matrimonial home and was compelled to live at her parental home and during the said desertion period, she was detected with cancer and she is under ailment.
"It is the case of the husband that property was a joint property in the name of husband and wife which was mortgaged with the HDFC Bank towards loan facility of Rs.50 lakh but as the account became NPA, to recover the said amount, said property / house was put for auction and applicant having no any business and having income of only Rs.2.23 lakh to Rs.2.12 lakh for the years 2018-19 and 2019-20 respectively and to prove the said income, applicant has examined Income Tax Officer . The income tax forms for the period from 2013-14 to 2019-20 i.e. 7 in number have been filed. But for the last return, no any Profit & Loss Account is produced on record and only acknowledgement is produced. Learned Family Court has also considered the said evidence and come to the conclusion that the applicant – husband having the business at Surat and Anand and he is Distributor of canon company. As per the say of husband, the distributorship is closed and wound up in the year 2018 but no any evidence in that regard is produced on record," the court noted.
The court said that if the documents on the alleged theft of cash from the petitioner's office is noted, it shows the potential of the petitioner to earn from the business.
The court also rejected the husband's contention that the wife has degree in B.Sc. (Home Science) and Fashion Designing and she is able to maintain herself observing that merely because wife is able to maintain herself is not a ground to avoid the responsibility to maintain the wife particularly considering her ailment. It noted that husband had not led any evidence led before the family court to show that wife is able to maintain herself and having income or engaged in any gainful profession.
It further observed that considering matrimonial conflict, there is a "tendency to underestimate the income". It said that after the alleged auction of the property, another loan was received by the petitioner, which clearly reveals the petitioner is engaged in continuous business.
The court thus upheld the family court's order and dismissed the appeal.
Case title: VASANTBHAI PREMJIBHAI VEKARIYA. v/s STATE OF GUJARAT & ANR.
R/CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 175 of 2022