When can Maintenance can be denied to wife?
In this article I will cover 5 grounds with Judgments holding in the field on the grounds how maintenance can be denied to the wife.
The Five Ground are
- Wife Living separately without sufficient cause.
- Wife living in Adultery
- Professionally qualified wife-Capable of earning
- Separated by mutual consent
- Earning wife
Wife Living separately without sufficient cause.
This ground is very simple but needs effective cross examination in this ground the onus is on the wife to explain that why she is living seperately with the husband.
In the Judgement of Smt Teja Bai Vs. Chiddu Armo Jabalpur High Court it was observed
High Court observed “It is evident that petitioner applicant No.1 is wife of respondent. Petitioner-applicant No.1 admitted in her cross-examination that respondent does not do any work due to illness, so she left his house and she is living in her paternal home with her child. She is not ready to live with respondent. So, it is evident that petitioner No.1 is living separately from her husband-respondent, without any sufficient reason. Therefore, learned trial court appreciate each and every fact in this regard so petitioner-application No.1 is not entitled to get any maintenance from her husband…”
In the Judgement of Anil Jain Vs. Smt Sunita it was observed.
Wife resided with the husband for 12 days and in this 12 days the wife was in constant touch with her brother. She had mobile phone and in the entire period of stay she never complained to her brother regarding any cruelty. it is not possible that any cruelty was done to her. She left her home as per own will
Wife living in Adultery
Now it is very interesting, the Husband has onus to prove that the wife living in adultery is not entitled to maintainance.
But the interesting thing about this ground is that it is not applicable to divorce wife.
It is held Though there is no requirement of joint residence in the case of a divorced wife with her divorced husband the learned Judges seem to assume that the Idea behind Sub-section (4) of Section 1’25 is to promote a process of reconciliation between the divorced spouses. We see no justification to assume so. On the other hand, the question is whether there is an obligation on any of the parties to the divorce to live with the other and whether any one of the parties can insist upon the exercise of right to live with the other even where the other is not willing. We are afraid, the answer can only be in the negative. Sub-section (4) cannot hence logically apply to the case of a divorced woman.
Professionally qualified wife-Capable of earning
If wife is capable of earning and is well qualified she is not entitled for maintenance now Three judgments are in this field.
In a recent Judgement by Delhi Session court filed under appeal u/s. 29 of DV act the court ordered wife to find a suitable job and held that maintenance order is valid for 1 year only
Case link Rajan Parmar Vs Mamta Parmar
In the present case both the parents are employed. If we refer to the first application filed under Section 26 of the Act by the wife she mentions that she is getting a salary of Rs. 3,100 per month and husband is getting a salary of Rs. 5,850 per month. She is, therefore, also obliged to contribute in the maintenance of the children. Salaries of both the parents have since increased with the course of time. We believe that in the same proportion, may be perhaps in the case of an employee of Reserve Bank of India at somewhat higher rate. If we take approximate salary of husband is twice as much as that of the wife, they are bound to contribute for maintenance of their children in that proportion. Family Court has already fixed a sum of Rs.. 250 per month for each of the child under Section 125 of the Code. That amount we need not touch.
In Sri R Ravindra vs Smt N Anitha on 10 April, 2018 it was held
Moreover, considering the fact that the respondent No.1 may have some capacity to earn, the learned Family Court has not imposed the complete, and sole responsibility of having to pay the educational expenses of the child, on the petitioner’s shoulders. In its wisdom, the learned Family Court has directed the petitioner to pay merely 75% of the educational expenses, thereby indicating that 25% of the educational expenses have to be borne by the respondent No.1.
In Dr. E. Shanthi vs Dr. H.K. Vasudev on 22 August, 2005 it was held
Admittedly, petitioner is residing with her parents at Chennai and whose brother is also a doctor. When the petitioner was practicing prior to marriage, when her name continuous on the board of the clinic, the Trial Court is justified in rejecting the application of the petitioner. There is no difficulty for the petitioner to work as a Doctor. Even if the petitioner is not working as a doctor in the clinic of her brother, since there are no impediments for her to work along with her brother as a doctor and when she is capable of earning, this Court is of the opinion that the Trial Court is justified in rejecting the application of the petitioner. When the petitioner is capable of earning and having required qualification and that when she was working as a doctor prior to marriage, there cannot be any difficulty for her to continue the same profession. Therefore, Section 24 of the Hindu Marriage Act cannot come to the aid of such persons. Accordingly, this petition has to be rejected.
About Income Affidavit
Separated by mutual consent
Now if there is an agreement that both spouses are living seperately and will not claim maintainance then this can be a ground to deny maintainence.
But what about cases in which maintainence is granted after mutual consent divorce
The Judgement of Rohtash Singh vs Smt. Ramendri And Ors on 2 March, 2000
The second ground on which she would not be entitled to Maintenance Allowance is the ground of her refusal to live with her husband without any sufficient reason. This also presupposes the subsistence of marital relations between the parties. If the marriage subsists, the wife is under a legal and moral obligation to live with her husband and to fulfil the marital obligations. She cannot, without any sufficient reason, refuse to live with her husband. “Sufficient reasons” have been interpreted differently by the High Courts having regard to the facts of indivisual cases. We are not required to go into that question in the present case as admittedly the marriage between the parties came to an end on account of a decree for divorce having been passed by the Family Court. Existence of sufficient cause on the basis of which the respondent could legitimately refuse to live with the petitioner is not relevant for the present case. In this situation, the only question which survives for consideration is whether a wife against whom a decree for divorce has been passed on account of her deserting the husband can claim Maintenance Allowance under Section 125 Cr. P.C. and how far can the plea of desertion be treated to be an effective plea in support of the husband’s refusal to pay her the Maintenance Allowance.
In the Judgement of Chaturbhuj vs Sita Bai on 27 November, 2007
In an illustrative case where wife was surviving by begging, would not amount to her ability to maintain herself. It can also be not said that the wife has been capable of earning but she was not making an effort to earn. Whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on record. Where the personal income of the wife is insufficient she can claim maintenance under Section 125 Cr.P.C. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. In Bhagwan v. Kamla Devi(AIR 1975 SC 83) it was observed that the wife should be in a position to maintain standard of living which is neither luxurious nor penurious but what is consistent with status of a family. The expression “unable to maintain herself” does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 Cr.P.C.
Maintenance can be denied on the basis of Preliminary Issue of
- Jurisdiction-If the case is not maintainable due to the fact that wife was not the resident at time of filing of the petition then the Maintenance case can be dismissed at preliminary stage.
- If wife is is earning and capable of maintenance herself. maintenance cannot be granted in such a situation but these facts should be part of records.