Educated Lady Capable to Maintain Herself not Entitled to Maintenance from Husband
The Hon’ble Supreme Court’s bench
of Aftab Alam and Dr. Arijit Pasayat JJ, in CHATURBHUJ VS SITA BAI Observes:
Courts
to consider status of the Parties, their respective needs, capacity of husband
to pay, having regard to reasonable expanses for his own maintainace and other
legal obligation.
While deciding the SLP arrived
due to impugned order passed by the High Court, ther Hon’ble court after
granting the relief to the appellant the court further observed While dealing with the ambit and scope of
the provision contained in Section
125 of the Code, it has to
be borne in mind that the dominant and primary object is to give social
justice to the woman, child and infirm parents etc. and to prevent destitution and vagrancy by compelling those who can support those who are unable
to support themselves but have a moral claim for
support. The provisions in Section
125 provide a speedy remedy to those women,
children and destitute parents who are in distress. The provisions in Section
125 are intended to achieve this
special purpose. The dominant purpose behind the benevolent provisions
contained in Section
125 clearly is that the
wife, child and parents should not be left in a helpless state of distress,
destitution and starvation.” In Chaturbhuj v. Sita Bai[4], reiterating the legal position
the Court held: -
The court further said
"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."
ANIL SRIVASTAV ADVOCATE
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
The
Hon’ble court further observed and laid the law, the burden of proof is on wife
who sought the maintenance from her husband, as she is not able to maintain
herself.
IN Vinay Paramar V Paramjeet Paramaar the Bench
of Justice P.Sathasivam Observes:
Courts to consider status
of the Parties, their respective needs, capacity of husband to pay, having
regard to reasonable expanses for his own maintain aceand other legal
obligation while deciding petition for Maintenance
though this Court has considered the amount of maintenance payable
to wife under Section488 of the Code of Criminal Procedure, 1898, the principle laid
down is applicable to the case on hand. In para 19, this Court held:
"The object of these provisions
being to prevent vagrancy and destitution, the Magistrate has to find out as to
what is required by the wife to maintain a standard of living which is neither
luxurious nor penurious, but is modestly consistent with the status of the
family. The needs and requirements of the wife for such moderate living can be
fairly determined, only if her separate income, also, is taken into account
together with the earnings of the husband and his commitments."
In
IKJOT CHATWAL VS BALVIR CHATWAL the Hon’ble Justice Aruna Suresh of Delhi High
Court Observes:
Thus, it is clear that
petitioner is financially independent and is having handsome income from her
business. Hence, petitioner, being self-employed having good income, is equally
liable to share day-to-day and other expenses of the children.
The Hon’ble court laid down the law “Wife independent, having business and
source of income, denied maintenance.”
The Bench Of Justice Pratibha Rani Justice in Hon’ble Delhi
High Court in DAMANPREET KAUR VS INDERJEET JUNEJA Observes:
Well educated lady earning well earliar and had chosen not
to work of her own will, though she had capacity to work and find a suitable
job for herself, is not eligible for maintenance.
In Smt.Mamta Jaiswal vs. Rajesh
Jaiswal 2000(3) MPLJ 100,
The High Court of Madhya Pradesh while dealing with
identical situation observed that 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. For better
appreciation, relevant paragraphs of the said decision are reproduced
hereunder:-
"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 pendent lite alimony at higher rate from
other spouse in such condition? According to me, Section 24has been enacted for the purpose of providing a
monetary assistance to such spouse who is incapable of supporting himself or
herself inspite 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 pendent lite 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 adversary 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 put a big question which is to be answered by Mamta
Jaiswal with sufficient cogent 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, cannot 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, sit 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, at least, 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 adversary 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 pendent 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 cannot be treated to be aim, goal of Section 24. It is indirectly against healthiness of the
society. It has enacted for needy persons who in spite of sincere efforts and
sufficient effort are unable to support and maintain themselves and are
required to fight out the litigation jeopardizing their hard earned income by
toiling working hours.
In
the present case, wife Mamta Jaiswal, has been awarded Rs.800/- per month as
pendent lite alimony and has been awarded the relief of being reimbursed from
husband whenever she makes up a trip to Indore from Pusad, Distt. 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 traveling from Pusad to Indore,
when at least a bus service is available as mode of transport. The submission
made on behalf of Mamta, the wife, is not palatable and digestible. This smells
of oblique intention of putting extra financial burden on the husband. Such
attempts are to be discouraged."
It
is also observed in the above case, the court while deciding the maintenance
application or petition the Hon’ble court having all the power to pass the
order in favor of Children if any, without having the party in the said
petition.
The above discussion let us know
that wife is not entitled to Maintenance in the above case.
This
Article is written by ANIL SRIVASTAV ADVOCATE DELHI HIGH COURT & SUPREME COURT OF INDIA
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