Nitish Banka

    • Difference between ‘Capable of working’ ‘Actually Working wife’

    Many people think that if they are able to show that the wife is capable of working and have been working previously or employed with a good employer as well as having great qualification will not make them liable to pay anything to the wife?

    Many clients are satisfied by the advise that your wife is financially capable of working and previously has also worked you are not liable to pay any thing.

    That you are no earning and your wife is capable of earning much more than you then also you can save yourself from maintainance

    Wrong!!

    Why?

    In this Judgement Amit Dhiman Vs. Boski Dhiman the Hon’ble Delhi High Court has differentiated between wife capable of working and actual working.

    Manoj Kumar Ohri, J. dismissed a revision petition filed against the order of the Family Court whereby the petitioner-husband was directed to pay interim maintenance of Rs 33,005 per month to the respondent-wife and their minor child.

    The above order was made by the Magistrate while deciding the application under Section 125 CrPC filed by the respondent wherein she alleged that she was thrown out of the matrimonial home and was living at her paternal home along with the minor child. She had stated that had no source of income and claimed Rs 80,000 per month as maintenance. The petitioner submitted that he was an Executive Chef in a hotel in Goa and his monthly salary was Rs 88,000. He stated that he was looking after his old-aged parents and had other liabilities towards loan and rent.

    S.C. Vats, Advocate for the petitioner, referred to the bio data of the wife and submitted that she was professionally qualified, an LL.B graduate, and was earning well. Per contra, Rajesh Sharma, Advocate for the respondent, opposed the instant review petition. Source https://www.scconline.com/blog/post/2019/12/12/del-hc-capable-of-earning-different-from-actual-earning-capacity-to-earn-is-no-ground-to-reduce-maintenance-awarded-to-wife/

     Shailja v. Khobbana, (2018) 12 SCC 199, wherein the Supreme Court held that “capable earning” and “actual earning” are two different requirements. Merely because the wife is capable of earning was held not to be a sufficient reason to reduce the maintenance awarded by the Family Court.

    It was noted that the petitioner’s contention, in absence of any supporting document, remains a disputed question to be tested in the trial. In the impugned order, the Family Court had recorded that any amount paid as maintenance in favour of the respondent would be liable to be adjusted.

    In such view of the matter, the High Court found no illegality in the order passed by the Family Court. Resultantly, the instant revision petition was dismissed. [Arun Vats v. Pallavi Sharma, 2019 SCC OnLine Del 11817, decided on 06-12-2019]