The Bombay High Court recently while hearing a criminal revision application filed by a 51-year-old man from Pune against a family court judgment directing him to pay monthly maintenance to his ex-wife, held that she is entitled to maintenance even if she runs a business and has her own source of income.
However, Justice NJ Jamdar noted that the Family Court failed to adequately consider the fact that the applicant wife did have a source of income. Thus, to that extent the revision application was allowed and the quantum of maintenance was decreased from Rs.15,000 per month to Rs.12,000 per month.
The couple got married on November 12, 1997 in accordance with Hindu religious rites and ceremony. According to the applicant wife, since the inception of marital life the respondent husband treated her with extreme cruelty.She was dropped at her parental home at Satara in the month of January, 1999 by her husband. Despite repeated assurances, the respondent did not come to fetch her back to her marital home. Ultimately with the intervention of police the applicant was allowed to enter her matrimonial home at Mahatma Society, Pune.
Thereafter the respondent and applicant moved out of the matrimonial home and started to reside separately from the in-laws of the applicant. Subsequently, in April, 2007 the respondent expressed his desire to obtain divorce from the applicant. Although, the applicant claimed to have resisted in the beginning, she signed the documents for a divorce petition by mutual consent as the respondent assured the applicant that he would continue to maintain the marital relationship with her despite a paper decree of divorce. Accordingly, a decree of divorce by mutual consent was obtained on October 25, 2007.
Despite the decree of dissolution of marriage, the respondent continued to visit the applicant at her apartment and had marital relations as well. But, from September 2012, the respondent husband stopped visiting the applicant's house. Applicant wife claimed he made no provision for her maintenance and livelihood as she has no source of income. She also stated that she could only sustain herself on the financial support of her father whereas, in complete contrast, the respondent has sufficient means.
Hence, the applicant filed an application under Section 125 of the Criminal Procedure Code for award of maintenance at the rate of Rs.50,000 per month.
The Respondent appeared and resisted the claim alleging that the applicant had controverted the allegations that she was subjected to ill-treatment. On the contrary, he submitted she was suffering from psychological illness and thus the marriage could not be consummated. So he filed a petition under section 12(1)(a) and section 13(1)(ia) of the Hindu Marriage Act, 1955.
The respondent also argued that the applicant wife had opened a beauty parlour under the name of 'Kalyani Beauty Parlour' and had become financially independent. So she decided to forego maintenance she is entitled to under Section 125 as part of the mutual agreement before the decree of divorce was passed, the husband urged.
In 2011, the respondent remarried and contested the petition for maintenance citing losses in business etc.
Finally, the Judge, Family Court allowed the application holding that the respondent has refused or neglected to maintain the applicant who is unable to maintain herself, despite the Respondent having sufficient means to maintain her. Family Court held -
"The fact that the Applicant had given up her claim for maintenance, when the decree for divorce by mutual consent was passed, does not detract materially from her claim as such an agreement not to claim maintenance or waive the right of maintenance was opposed to public policy. The Applicant being a wife, despite being a divorcee, within the meaning of Explanation (b) to section 125(1) of the code, the agreement to reside separately from the Respondent does not disentitle her from claiming maintenance."
Advocate Seema Sarnaik appeared for the respondent husband and Advocate Hitesh Vyas for the applicant wife.
Court referred to a judgment of the High Court in Ramchandra Laxman Kamble vs. Shobha Ramchandra Kamble, 2019 wherein the Court after adverting to a number of pronouncements had enunciated the legal position to the effect that, there are several rulings, which take the view that an agreement in which the wife gives up or relinquishes her right to claim maintenance at any time in future, is opposed to public policy and, therefore, such an agreement, even if voluntarily entered, is not enforceable.
Thereafter, Justice Jamdar noted that the manner in which the applicant wife fared in her cross examination assumes significance. She conceded in unequivocal terms that when she had filed a petition for divorce by mutual consent, she was running a business of beauty parlor from the flat where she was residing. She went on to admit that she had taken courses of beautician and she runs the beauty parlor, Court said.
After considering submissions of both parties, Justice Jamdar observed-
"In my considered opinion in the backdrop of the material on record, the claim of the Applicant that she had no source of income ought to have been accepted by the learned Judge, Family Court with a pinch of salt. The tenor of the evidence and the material on the record suggests that the Applicant was carrying on the said business of Kalyani Beauty Parlor and Training Institute to sustain her livelihood."
However, at the same time, the Court also noted that the fact that the wife carries on some business and earns some money is not the end of the matter-
"Neither the mere potential to earn nor the actual earning, however meager it may be, is sufficient to deny the claim of maintenance. The learned Judge, Family Court was justified in placing reliance on the judgment of the Supreme Court in the case of Sunita Kachwa vs. Anil Kachwa."
In the aforesaid judgment, the apex court had observed that merely because the wife was earning something, it would not be a ground to reject her claim for maintenance.
Finally, Court noted that in this inflationary economy, where the prices of commodities and services are increasing day by day, the income from the business of beauty parlor, which has an element of seasonality, may not be sufficient to support the livelihood of the applicant, and afford her to maintain the same standard of living to which she was accustomed to before the decree of divorce.
Thus, Court concluded that Rs.12,000 per month would be a reasonable amount to support the applicant wife instead of Rs.15,000 as the applicant's source of income was not adequately considered by the Family Court judge.
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