The Bombay High Court recently heard a criminal revision application filed on behalf of a 51-year-old man from Pune, said that even if the wife is doing her business and earning money from it, she is still entitled to maintenance or maintenance. The man challenged the family court's decision directing him to pay monthly maintenance to his ex-wife.

However, Justice NJ Jamdar stated that the family court did not adequately consider the fact that the applicant's wife has a source of income, therefore allowing the revision application to that extent and the maintenance amount to 15,000 Rs. 12,000 per month is being reduced from Rs.

What was the matter

The couple was married on 12,11,1997 according to Hindu religious rites. According to the wife, her husband treated her very brutally since the beginning of her married life. Her husband left her in January 1999 leaving her ancestral home in Satara. Despite repeated assurances, he did not take her back to his matrimonial home. Eventually, after the investigation of the police, he was allowed to enter his matrimonial home in Mahatma Society, Pune.

The husband and wife then left the matrimonial home and began living separately from the in-laws. After this, in April 2007, her husband expressed his desire to divorce her. Although the wife initially protested, she later signed the documents of divorce petition with mutual consent. Since her husband had assured her that he would maintain a matrimonial relationship with her despite this decree of divorce. A decree of divorce was therefore obtained on October 25,2007 by mutual consent.

Even after the marriage was over, the husband used to visit his ex-wife's apartment and formed a matrimonial relationship with her, but, from September 2012, he stopped visiting his ex-wife's house, after which his ex-wife claimed that he had no means for his maintenance and livelihood. She also said that she is only surviving the financial support form her father. Whereas in contrast, her ex-husband has enough resources.

She, therefore, sought maintenance from her former husband at the rate of Rs. 50,000 per month under section 125 of the criminal procedure code, but the husband appeared before the court and opposed her demand for his ex-wife. He also protested that he had ever misbehaved with his ex-wife.

On the contrary, he told the court that his ex-wife was suffering from psychological illness, so it became difficult to carry out his marriage. In such a case, he filed a petition under section 12 (1) (a) and section (13) (ia) of the Hindu Marriage Act, 1955. Not only this, but he had also argued that not his ex-wife runs a beauty parlor named 'Kalyani Beauty Parlor' and has become financially independent. Therefore he should have sought maintenance under section 125 as part of a mutual agreement before the divorce decree was passed. In 2011 the husband remarried and opposed the demand for maintenance again, citing a loss in business, etc.

In the end, the family court judge admitted that the woman was not able to maintenance herself and that her ex-husband had neglected her, while her ex-husband had enough means to maintain his ex-wife.

The family court said in this case that

''It is true that the woman gave up her maintenance claim when the decree was passed for divorce by mutual consent, but the fact that the woman sought her maintenance. It does not detract from the claim, because such an agreement not to claim maintenance or to waive the right to maintenance is contrary to public policy.

Under the meaning stated under Explanation (b) of section 125 (1), there is a wife and also divorced. In such a situation, an agreement to stay away from her husband cannot alienate her from her claim of maintenance.''

The court verdict

Appeared on behalf of the applicant husband, advocate Seema Sarnaik and advocate Hitesh Vyas appeared on behalf of the defendant's wife.

The court referred to a decision given by the High Court in Ramchandra Laxman Kamble vs. Shobha Ramchandra Kamble, 2019, in which the court clarified the legal position to this effect after several announcements and stated that in several rulings it was stated that an Agreements, under which a wife relinquishes or relinquishes her right to claim her maintenance in the future, such agreements are contrary to public policy. Therefore, such agreement, even if done voluntarily, is still unenforceable.

After this, Justice Jamdar said that the manner in which the wife of the applicant has shown impartiality in her cross-examination, those things are important. She candidly admitted that when she petitioned for divorce by mutual consent, she was running the beauty parlor business from the flat where she was staying. The court said that she also admitted that she has taken a beautician course and she runs a beauty parlor.

After considering the arguments of both the parties, Justice Jamdar said,

''After considering the material on record, I believe that the claim of the defendant's wife was accepted by the family court with a pinch of salt. He has no source of income. Whereas the evidence and the material kept on record shows that she is running the said business called Kalyani Beauty parlor and Training Institute to maintain her livelihood.''

However, at the same time, the court also said that the wife does some business and earns some money, these things are not the end of the matter- ''Neither the potential ability to earn nor the actual earning, whatever it may be, is any it is not enough to deny a maintenance claim in the case. The judge of the family court has corrected this case by citing the judgment given by the Supreme Court in the case 'Sunita Kachwa v. Anil Kachwa'.

In the aforesaid decision, the apex court said that the wife's claim of maintenance or maintenance allowance would not be dismissed on the grounds that she herself was earning anything. Finally, the court said that in this inflationary economy, the prices of goods and services are increasing day by day. Hence the income from the Beauty Parlor business may not be sufficient for the livelihood of the respondent-wife as the income of this business depends on the season. Nor can this income give her the standard of life she lived before the divorce.

Thus the Court concluded that the Family Court did not properly consider the source of income of the applicant's wife, therefore, to help his wife maintain the standard of her life, it would be sufficient to pay Rs 12,000 per month instead of Rs 15,000.


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