Nitish Banka

    • Maintainence/Interim Maintainence to wife calculation Judgements

    interim maintenance/maintenance to wife

    Here are some of the Judgments which help in assess the interim maintenance/maintenance to wife and how courts devise the amount.

     

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    Revision vs By Advs.Sri.C.P.Peethambaran 

    There is nothing to show that the wife has any job or income of her own. Though the husband made such a contention that she has her own income, there is no evidence to prove such a case. The respondent is admittedly a carpenter. He also practically admitted that a carpenter would get 750/- per day. But his case is that he would not get job everyday in a month. Anyway, the trial court made a rough assessment of the probable income of the husband as 15,000/- per month. What is awarded is only 1/3rd of the probable income assessed. In the particular facts and circumstances, I find that some slight modification can be made in the amount awarded by the trial court. The revision petitioner will have his own personal expenses and he will have other liabilities in the family consisting his parents, brothers and sisters. The concern of the court must be that the amount awarded R.P (FC) No.311 of 2014 by the court must reach in the hands of the claimant. If a huge amount is awarded, the claimant may not get it promptly, and the person liable may think of other options, if he finds it difficult to make payment of the huge amount. So, I feel that 2500/- will do justice to the wife and 1500/- will do justice to the child in the present circumstances, of course, subject to periodic modification and enhancement under Section 127 of Cr.P.C as and when needs and necessities increase and circumstances change.

    Chander Prakash Bodhraj v. Shila Rani Chander Prakash[17] wherein it has been opined thus:- “An able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able-bodies person to show to the Court cogent grounds for holding that he is unable to reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child. When the husband does not disclose to the Court the exact amount of his income, the presumption will be easily permissible against him.”

    While determining the quantum of maintenance, this Court inJabsir Kaur Sehgal v. District Judge Dehradun & Ors.[13] has held as follows:-

    “The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate.” 
    Under prevalent laws i.e. Hindu Adoption & Maintenance Act, Hindu Marriage Act, Section 125 Cr.P.C – a husband is supposed to maintain his un-earning spouse out of the income which he earns. No law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not. Court cannot tell the husband that he should beg, borrow or steal but give maintenance to the wife, more so when the husband and wife are almost equally qualified and almost equally capable of earning and both of them claimed to be gainfully employed before marriage.

    In  Dinesh Gijubhai Mehta vs Usha Dinesh Mehta This is a case where the husband is staying as member of his father’s family which consists of (1) the father, (2) mother, (3) brother and (4) sister, and (5) the husband himself. The wife was staying as a member of the said family till she left or was compelled to leave the same. Now she is residing with her father. This dishouses with the need to provide for any shelter. The wife’s allegation as to the husband’s income of being Rs.1250/- cannot be accepted in view of the employer’s certificate produced by him. His gross income is Rs.950/- per month and the net income is found by both the Courts to be Rs.720/- per mouth. Her allegation about the family having any dry-fruit business, and the brother and sister being earning members shall have to be rejected in view of the husband’s emphatic denial and in ability of the wife to furnish any particulars. Her allegation that the father of the husband is earning Rs.1,500/- per month shall have to be accepted. The husband has denied this. But he has not denied that he serves as an Education Officer in the Corporation. He has not cared to indicate what was his income, if not Rs.1500. The husband’s bare assertion in paragraph 14 in surrejoinder that his total per capita income is Rs.265/- cannot be accepted without detailed particulars. His allegation that the wife earns Rs.450/- per month also is liable to be rejected in view of the wife’s denial. Certificate produced by her only shows that she was employed only for 15 days. Total income of the family is thus Rs.1500 Plus Rs.720 = Rs. 2,220. The share of each of six members in the income thus comes to Rs.370/-. The amount of maintenance fixed by the learned Judge in appeal, of Rs.350/- does not appear to be thus excessive or objectionable in any manner. The amount of Rs.370/- may get reduced to Rs. 350/- if the unspecified necessary deductions in father’s salary are taken into account. Additional expenses for the education of the brother and the sister could have been taken into consideration. However, no details of particulars are specified by the husband.