While reiterating the difference between 'capable of earning' and 'actual earning', the Delhi High Court allowed the grant of interim maintenance to a wife under Section 125 CrPC, notwithstanding that she is an Advocate, enrolled with Bar Council of Delhi.
The order was passed by Justice Manoj Kumar Ohri in a revision petition, challenging the order of the Family Court which had awarded monthly maintenance of Rs. 33,005/- in favour of the wife.
The Petitioner-husband, Arun Vats asserted that his wife was not entitled to maintenance as she was she was professionally qualified and was earning well. She had done her LLB and was enrolled as an advocate in the year 2000.
The Respondent-wife contested the revision, stating that she practiced briefly, only prior to her marriage and that she was unable to pursue her profession on account of the young age of her child. She submitted to have no source of income and that after being thrown out of her matrimonial house she lived with her mother along with her minor child.
The court noted that even though Vats claimed that her wife was well off, he could not produce any document in support of the same. In such circumstances, the court refused to interfere with the order of the family court. It said,
"The petitioner's aforementioned contention, in absence of any supporting document, remains a disputed question and needs to be tested in trial. The Family Court has recorded in the impugned order that any amount paid as maintenance in favour of the respondent/wife and her minor child for the period in question would be liable to be adjusted.
In view of the above discussions, I find no illegality or perversity in the impugned order passed by the Family Court."
Reliance was placed on Shalija & Anr. v. Khobbana, (2018) 12 SCC 199, whereby the Supreme Court had held that 'capable of earning' and 'actual earning' are two different requirements. It clarified that merely because wife is capable of earning was held not to be a sufficient reason to reduce the maintenance awarded by the Family Court.
Title: Arun Vats v. Pallavi Sharma & Anr.
Case No.: Crl.Rev.P. 751/2018
Quorum: Justice Manoj Kumar Ohri
Appearance: Advocate S.C. Vats (for Petitioner); Advocate Rajesh Sharma (for Respondent)
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