Section 125 of the Code of Criminal Procedure, 1973 (CrPC) requires a husband to support his wife (who is otherwise unable to maintain herself).
Maintenance is the amount provided by the husband to the wife and child when they are unable to maintain themselve.
But nowadays, when wife is earning then aswell she files maintenance case against the husband to extort money…
Earlier most of the women are housewives and unable to maintain themselves and thats why this provision is added to safeguard the interest of women…
This provision has now became a part of wrong legal practices which are made to harass the opposite party …
There are various aspects observed by the court while granting maintainance. Questions which are asked by court before granting maintainance are –
Q. what is the job of the husbanQ. How much husband earns?
Q. What is the job of the wife?
Q. How much wife earns ?
Q. what is the difference between income of husband and wife?
If husband earns less than wife and there is good difference between income of husband and wife then there is fare chances that court deny to grant maintainance to wife……
Even if wife is unable to establish the income of husband claimed by her then as well court may deny to granting of maintainance to wife…
Case laws where court denied maintenance to earning wife and wife who failed to establish income of husband claimed by her…
Sameer Datta Kadam v. Supriya Sameer Kadam, 2019 (2) Hind LR 225: 2019 (2) DMC 33 (Bom)].
Wife failed to establish the income of the husband……
In this case husband seeking divorce under the provisions of Section 13 of the Act 1955 and wife claimed maintenance against him but court dismissed the petition holding that she was capable to earn to maintain herself. In the application wife alleged the income of the husband as Rs. 75,000/- and averred that she had no source of income. Admittedly she was being paid fellowship by the University Grants Commission, at the time of filing the application.Stand of the wife was false to her knowledge. There was no evidence on record to establish the alleged income of the husband. The applicant had not approached the Court with clean hands and could not establish the income of the respondent so as to justify the claim of maintenance. It was held that there was no error in rejecting the application of the wife by The Family Court. Appeal dismissed by the court.
If you want to get out of matrimonial cases fast then register for it…Get my research
Gaurav Sharma v. Medha Vashishth, 2019 (5) RCR (Civ) 986: 2018 (S) Law Herald 2323 2018 (3) Hind LR 399 (P&H)].
Maintenance of the wife was denied who was running the business of garments, purses, accessories having staff of about 8 to 10 boys and girls-Not entitled.
In this case husband denied the claim of wife contending that her claim was based on false grounds-It was denied that she was dependent upon her parents and having no source of earning-Wife concealed the true facts that she was running beauty parlor where she was operating a unisex saloon and cloth house and also was running business of garments, purses, accessories, temporary and permanent tattoos and piercings etc-Husband also proved that she was having two mobile numbers, and had got a staff of about 8 to 10 boys and girls working in the parlor-As such she was having an earnings of about Rs. 50,000/- per month-She was not dependant and thus, the provisions of Section 24 would not be attracted. Application of wife rejected by the Court below affirmed and appeal was dismissed.
CONCLUSION..
In marital conflicts, the maintenance idea aims to return the woman to the same level of comfort and lifestyle that she had before the marriage. In India, there is no set amount of maintenance that a husband must give his wife, and the amount of maintenance that the husband must pay, whether monthly or in one lump payment, is determined at the discretion of a family court. Wife maintenance is a tricky topic under the Hindu Marriage Act, 1955, and it has been regarded as a manner of taking advantage of the husband by asking for food for life. Thus, the judiciary is the only reliance in such matters and therefore the purpose behind this article is to highlight the view of the Supreme Court of India with respect to maintenance of the wife by their husbands.
Custody of the child is a issue that is to be decided by the court when two couples fight and get into legal tussle….
The children are the one who suffers….
If they stay with mother they will crave love and attention of the father and vice versa….
So there has to be a solution to this problem…..
Most importantly how court takes up such tough decisions?
I have done some research on the issue and found certain case laws which will clear all your doubts…
In a case of Jagdish vs Sunita the court considers following issues before granting custody to any party…
Q1. who would care the child better?
Q2. Where he is likely to be more happy?
Q3. By whom physical and mental development or comfort of the child be better looked after?
Q4. Who has capacity to provide better education and nursing of child?
Q5 Who would be available for love and affection of child?
Court has to due weightage to the child ordinary contentment, health, education, intellectual development and favorable surroundings but over and above physical comfort, moral and ethical value also to be noted. They are of equal importance..Mousmi Moitra Ganguli supreme court case…
How court decide custody in favor of father?
Now if the husband is able to satisfy all the questions as stated above the court will able to decide custody in favor of father…
Here are some case laws…
In Mamta Devi Vs. Dinesh Kumar…The court has held that the father is entitled for custody of the minor child as mother abandoned the child in her infancy and she did not even enquired about the health of the minor child who was suffering from epilipsy.
In Shaleen Kabra Vs. Shivani Kabra…Wife was not able to take care of the educational needs of the child and while her husband is an IAS officer and can very well take care of the educational needs of the minor child. The father also have the custody of the brother of the minor child and it would be better if both live together..
In case of Ravi Kumar Vs. Manju The child was living with father and grandmother and was happy with them…The custody to mother was denied in this case as child wishes are also taken into account while deciding custody related cases. .However visitation rights were granted…
Custody to father denied as he has taken ground of custody only his financial condition…
In Rajiv chouksy v Kriti chouksy The custody of minor child was denied to father as father only wanted custody on the ground that he has better financial capacity and will be able to maintain the child properly. However wife said that she is maintaining the child properly and giving education and she could also get maintenance under 125 crpc only on ground of financial condition of father the custody cannot be changed…
Here are the 5 latest judgements on 498A i am sharing with you which will definitely help you in your case for Quashing of charges, criminal Trials etc. I have researched these judgements specifically for 498A cases.
Anita Rai vs. The State of Madhya Pradesh (13.06.2022 – MPHC) : MANU/MP/1402/2022 This case was filed in High Court of MP for quashing of FIR by the petitioner (mother-in-law) against the coimplainant. Here, the main allegations by the complainant are her husband i.e. son of petitioner who has allegedly not lived with her for even two months in a period of two years of marriage and has constantly raised demand of dowry from her. He is alleged not to have assisted her mentally or financially. He is also alleged not to have made any effort for him and complainant to live together as husband and wife. Allegations are mainly against husband of complainant but along with him, present petitioner who is mother-in-law of complainant has also been implicated but there is no specific allegations against her. Petitioner is an aged person and is shown to have been living at Jodhpur and her son is in Indo-Tibetan Border Police Force and is posted in Arunachal Pradesh. There is no allegation that petitioner and complainant have even lived in same house. Allegations levelled against petitioner are vague and omnibus and have been made solely for purpose of implicating her in a criminal case. There is no specific allegation against petitioner nor has any precise indecent been disclosed in FIR against her. Hence petition is allowed and FIR registered against petitioner for offence punishable under Sections 498-A, 323 of IPC and 3/4 of DP Act, is hereby quash.
S. Ameer ahmed and Ors. vs. The State of Telangana and Ors. (13.06.2022 – TLHC) : MANU/TL/1094/2022 This case was filed for quashing of FIR registered under Section 498A of Indian Penal Code, 1860 (IPC) and Sections 3 and 4 of Dowry Prohibition Act, 1961. Petitions were filed by petitioners to quash proceedings of criminal case pending before court below. Whether there was sufficient material to proceed against Petitioners for offences alleged against them, or whether same were liable to be quashed. Held, considering allegations leveled by complainant against these Petitioners in her complaint, they did not appear to be serious enough but were incorporated to harass entire family to settle her personal scores with them – Hence it was considered fit to quash charges against Petitioners no. 4 to 8 for offences under section 498A of IPC and sections 3 and 4 of Act, taken cognizance against them in CC no. 1027 of 2014 on file of court below – In result, criminal petition no. 8699 of 2017 was allowed quashing proceedings against all Petitioners in CC no. 407 of 2016 on file of court below and criminal petition no. 13595 of 2016 was allowed-in-part quashing proceedings against Petitioners nos. 4, 5, 6, 7 and 9 in CC no. 1027 of 2014 on file of court below – Criminal petition was dismissed against Petitioners/accused no. 1 to 3 and veracity of allegations made against them could be decided during course of trial.
Kahkashan Kausar and Ors. vs. State of Bihar and Ors. (08.02.2022 – SC) : MANU/SC/0163/2022 The Complainant (R5) instituted criminal complaint against her husband and the Appellants alleging demand for dowry and harassment. Court took cognizance for the offence under Section 498A, 323 Indian Penal Code against the husband and issued summons. This dispute was eventually resolved and Respondent No. 5 herein came back to the matrimonial home.Subsequently, R5 gave another written complaint for registration of FIR against her husband and the Appellants herein alleging Accused of pressurizing the Respondent wife to purchase a car as dowry, and threatened to forcibly terminate her pregnancy if the demands were not met.Aggrieved, the Husband and Appellant sough quashing of FIR which was dismissed vide impugned judgment. Hence, the present appeal. Court has at numerous instances expressed concern over the misuse of Section 498A Indian Penal Code and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the Accused. Court by way of its judgments has been warned from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them.[18] Upon a perusal of the contents of the FIR, it is revealed that general allegations are levelled against the Appellants. Therefore, upon consideration of the relevant circumstances and in the absence of any specific role attributed to the Accused Appellants, it would be unjust if the Appellants are forced to go through the tribulations of a trial, i.e., general and omnibus allegations cannot manifest in a situation where the relatives of the complainant’s husband are forced to undergo trial. A criminal trial leading to an eventual acquittal also inflicts severe scars upon the Accused, and such an exercise must therefore be discouraged. The impugned F.I.R. No. 248 of 2019 against the Appellants Under Sections 341, 323, 379, 354, 498A read with Section 34 Indian Penal Code stands quashed.
Meera vs. State by the Inspector of Police, Thiruvotriyur Police Station, Chennai (11.01.2022 – SC) : MANU/SC/0034/2022 The mother-in-law/ Accused No. 2 has preferred present appeal against judgment upholding Trial Court’s judgment convicting her of the offence alleged. She alongwith others were alleged of harassing the deceased and subjecting her to torture/cruelty for want of jewels. The deceased allegedly had immolated herself as a result of which she died. By impugned judgment, High Court acquitted all the Accused for the offence under Section 306 IPC and also set aside conviction in respect of Accused Nos. 1 and 3 under Section 498A but maintained conviction and sentence in respect of Accused No. 2. hence , the appeal was filed in SC and It has been established and proved that the deceased was subjected to torture/cruelty by the Appellant – mother-in-law with regard to jewels. There are concurrent findings of facts recorded by both the Courts below on the harassment and/or torture and/or cruelty by the Appellant – Accused No. 2 with regard to jewelson appreciation of evidence. Appellant rightly held guilty for the offence under Section 498A Indian Penal Code. Merely because long time has passed in concluding the trial and/or deciding the appeal by the High Court, is no ground not to impose the punishment and/or to impose the sentence already undergone. It is to be noted that the Appellant – mother-in-law is held to be guilty for the offence under Section 498A of Indian Penal Code. However, considering the fact that Appellant reported to be approximately 80 years old, as a mitigating circumstance, sentence reduced from one year R.I. to three months R.I. with fine imposed by Trial Court.
Achin Phulre and Ors. vs. The State of M.P. and Ors. (16.02.2022 – MPHC) : MANU/MP/0308/2022 This petition was filed for Quashing of FIR registered under Section 498A of Indian Penal Code, 1860 (IPC) and Section 3 and 4 of Dowry Prohibition Act, 1986and Section 179 of Criminal Procedure Code, 1973 (CrPC)- Appeal sought to quash of FIR registered against them under Section 498A of IPC and Section 3 and 4 of Act – Whether woman forced to leave her matrimonial home on account of acts and conducts that constitute cruelty can initiate and access legal process within jurisdiction of Courts where she is forced to take shelter with parents or other family members? – Held, object behind Protection of Women from Domestic Violence Act is to provide civil remedy to victims of domestic violence as against remedy in criminal law which is what is provided under Section 498A of IPC – Definition of Domestic Violence in Protection of Women from Domestic Violence Act, 2005 contemplates harm or injuries that endanger health, safety, life, limb or well-being – Said definition would certainly have close connection with Explanation A & B to Section 498A , IPC which defines cruelty -Provisions contained in Section 498A of IPC encompasses both mental as well as physical well-being of wife – Even silence of wife may have underlying element of emotional distress and mental agony – Her sufferings at parental home though may be directly attributable to commission of acts of cruelty by husband at matrimonial home would be consequences of acts committed at matrimonial home – Such consequences, by itself, would amount to distinct offences committed at parental home where she has taken shelter -Adverse effects on mental health in parental home though on account of acts committed in matrimonial home would amount to commission of cruelty – Consequences of cruelty committed at matrimonial home results in repeated offences being committed at parental home – This is kind of offences contemplated under Section 179 CrPC which would squarely be applicable to present case – Courts at place where wife takes shelter after leaving or driven away from matrimonial home on account of acts of cruelty committed by husband or his relatives, would, dependent on factual situation, also have jurisdiction to entertain complaint alleging commission of offences under Section 498A of IPC – Appeal dismissed.
Bonus Judgement–Our Firm Case…In Sumeert Rathore &ORS Vs. State the Delhi High Court has recently quashed charges of 376/354/498a/406/34 IPC. In this case initially court was reluctant to quash charges of 376 IPC but we gave a supreme court judgement.. Kapil Gupta v. State of NCT of Delhi, 2022 SCC OnLine SC 1030, while quashing an FIR under Section 376 IPC, had observed as under: “…13. It can thus be seen that this Court has clearly held that though the Court should be slow in quashing the proceedings wherein heinous and serious offences are involved, the High Court is not foreclosed from examining as to whether there exists material for incorporation of such an offence or as to whether there is sufficient evidence which if proved would lead to proving the charge for the offence charged with. The Court has also to take into consideration as to whether the settlement between the parties is going to result into harmony between them which may improve their mutual relationship. 14. The Court has further held that it is also relevant to consider as to what is stage of the proceedings. It has been observed that if an application is made at a belated stage wherein the evidence has been led and the matter is at the stage of arguments or judgment, the Court should be slow to exercise the power to quash the proceedings. However, if such an application is made at an initial stage before commencement of trial, the said factor will weigh with the court in exercising its power…”The case was quashed by the High Court on the ground that complainant do not want to proceed with the case
Today I was thinking that whether we can send wife to jail if the execution of decree for restitution of conjugal rights against her and it is not obeyed by her or their are any other procedures in law by which we can take any strict action on wife as in most of matrimonial disputes wife files false cases on husband to extort money and for mental harassment?
Decree for restitution of conjugal rights is easily passed by the court as court believes in restitution of relationships rather than divorce and that’s why I have researched on topic for better clarification and here is what I have found-
A decree for restitution of conjugal rights is executed as per order 21 rule 32 and 33 of CPC and it can be executed if the opposite party is not ready and willing to obey the decree and restitute the conjugal rights as per the decree passes by the court.
According to the judgement in case of Vijendra B Singh v, Uma Vijendra Singh, 2010 Cj (Bom) 2341 :-
In case of wife – As per the rule 32 for execution of decree for restitution of conjugal rights against wife is only done by attachment of property of wife .i.e., if the wife is not willing to obey the decree then she cannot be sent to jail, only the property is attached. She cannot be arrested and dumped into civil prison if a wife is not willing to cohabit together then she cannot be forced by sending her to jail.
In case of husband- As per the rule 33 for execution of decree for restitution of conjugal rights against husband is done by attachment of property and then rule 33 makes a special provision in favor of wife and according it court can pass an order u/r. 32 of payment of money to wife which be periodical payment. But here also we cannot send husband into jail on this ground as if a husband don’t want to cohabit then no one can force him for it.
Conclusion
As per the order 21 rule 32 and 33 of CPC a wife cannot be sent to jail if the execution of decree for the restitution of conjugal rights is against her and she is not willing to obey this decree. The execution is only done by attachment of the property. This is because court cannot force anyone to cohabit together if they don’t want to do so by sending them to jail.
Many clients ask me this question? will the wife be allowed to enter the matrimonial home under domestic violence act?
Many old parents are scared that they would be evicted from their own house and court will allow the wife to reside with them or give the property of wife.
A lot of tension is created in such a scenario.
I have done some research and let us find out if this is true or not?
Now there are two scenarios.. One is the normal scenario the property where wife residing in matrimonial home is owned by in laws and not the husband….But husband is staying with his parents i.e inlaws and wife and wife alleges she was thrown out of the matrimonial house. She needs shelter and demanded residence rights and protection from in-laws.
The answer to this scenario lies in the fact since the property is owned by in-laws, she does not get a right to reside in shared household because husband does not have any right title interest in the property.
On the other hand husband is casted by a responsibility to provide alternate accommodation/rental which will be part of the maintenance
Thus, looking at the totality of the circumstances and the pleadings as well as the order X, CPC statements, it cannot be said that the learned single Judge was off the mark when he observed that there is no dispute that the suit property belongs to the defendant Nos. 2 and 3. Therefore, the first point of attack that the conclusion of the learned single Judge was founded on a wrong premise, falls to the ground. We must emphasise once again that the right of residence which a wife undoubtedly has does not mean the right to reside in a particular property. It may, of course, mean the right to reside in a commensurate property. But it can certainly not translate into a right to reside in a particular property. It is only in that property in which the husband has a right, title or interest that the wife can claim residence and that, too, if no commensurate alternative is provided by the husband
Shumita Didi Sandhu vs. Sanjay Singh Sandhu and Ors. (03.09.2012 – DELHC) : MANU/DE/4077/2012
Now take another scenario in which husband has a share in property or is not coming up for the proceedings. He was disowned and abandoned the complainant wife.
In that scenario wife can demand and be allowed shelter in the shared household that is the matrimonial home..
I have made compendium of judgements you can download fill the form…
Many clients come with a query that whether it is advisable to leave a job or join some small job. Will the court consider this and reduce the maintenance?
I will answer this question with my own experience and the recent Judgement of the Delhi High Court.
In my own case which is still running Gurugram court. The wife was earning and had a child. The husband resigned from the job and was earning around Rs. 120000/- the husband cited that he was fired from the organization.
I argued that he was working in this company for the last 6 years and in order to avoid maintenance he resigned voluntarily.
The court decided in my favor and Rs. 25000/- maintenance was awarded in the case. The court said that since the husband is able-bodied he can find a job at the same level.
Now in a recent case of Sandeep Walia Vs. Monika Uppal the husband said that she was working at NIIT and left the job for better prospects and due to the recession he is unable to find a new job. He showed his expenses as Rs. 32000/- and now working as a driver at his uncle’s place.
The plea of the petitioner that he does not have any means to pay is, therefore, rejected. He is a healthy able-bodied person and is in a
position to support his wife. He is under the legal obligation to support his wife and to pay maintenance under Section 125 of Cr.P.C. It is sacrosanct duty to render financial support and there is no escape route unless there is an order from the Court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds. The bald submission that the petitioner does not have any source of income is no ground to exonerate him from the liability of maintaining his wife under the facts of the present case. Even experience shows that actual income is normally not disclosed by the parties. Under such circumstances, it is always safe to come to a realistic conclusion considering the status of the parties and their lifestyle etc.
The court will fix maintenance as per the standard of living and lifestyle of the parties.
A DV case can be filed by the wife as per section 27 of the DV act
Here is section 27 of the DV act
Jurisdiction.—
(1) The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local limits of which—
(a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or
(b) the respondent resides or carries on business or is employed; or
(c) the cause of action has arisen, shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act.
(2) Any order made this Act shall be enforceable throughout India.
Now many wife these days misuse either temporary resides or cause of action has arisen
Now I explain with an example and later with the case law…
In one of my case wife alleged that when she was travelling at the airport to Delhi. She was harassed mentally by husband at the airport.
She filed complaint in Delhi as she claimed that the cause of action arose in Delhi.
The trial court dismissed her complaint as the cause of action is engineered one
To support this the latest Judgement of Bombay High Court
Afia Rasheed Khan vs. Mazharuddin ali khan and ors comes to rescue.
Here also wife claimed that she has been living in Hyderabad with in laws and forced to travel to Mumbai. Where she claims that she was harrassed by the in laws and survallence was put on her. her counsel claims cause of action.
Court Held :Thus, averments in application suggest, that Applicant is well educated person; she is financially sound; her parents are in business. In consideration of her background it is difficult to accept her contention or that she could not seek protection order at Hyderabad. In other words, application in no way suggest or implies that she was forced to leave the Hyderabad and or she was intending to reside in Mumbai. On the contrary the chronology of the events do suggest, that the Applicant engineered the cause of action with an intention to file case and confer jurisdiction
How to file defamation case on wife when she makes false allegations….
The case of defamation case must be filed after the case is over and you get a favorable order.
Any example of success of such cases?
Many clients do ask me to share case study related to successful defamation cases.
I would like to share one case of Karanataka High Court
where the wife was convicted for defamation
Facts of the Case
The husband has file RCR case against the wife and wife in her statement of objections alleges as under
“complainant does not know the name of his daughter. The said fact clearly proves as to what was the extent of relationship the complainant had with the first respondent and the girl child. It shows clearly that he has another relationship.”
“….the complainant being an addict of liquor was torturing the first respondent in the night asking her to dance naked since there would be no other person in the room and when she was not doing so, he was torturing her physically and mentally”. “The complainant developing the attitude of behaving at his own whims and fancies, was binging some persons who were unknown to her and insisting her to have physical relationship with them and to make money.” “since the first respondent refused to establish the illicit relationship with third persons and sell her character to third parties and earn money, the complainant assaulted her on several occasions and also attempted to kill their daughter by throttling her neck.
The court found out that definately such allegations are defamatory in nature.
But there are 9 exceptions to Section 499. One of the exception is that a statement which is made in good faith is exempted from being called as defamatory.
Section 52 IPC defines good faith.
The demand of section 52 is that the statement should be made with due care and caution.
Conclusion
The court has held
Admittedly, except making those statements in her statement of objections at Ex.P-4 and reiterating it in Ex.P-1, she has not even attempted to show that they were the imputation of truth or that they were made in good faith. Therefore it can be safely held that the complainant has proved beyond reasonable doubt that the accused has committed an offence of defamation.
In the recent case of Divorce. The High court granted divorce on the ground of the wife filing various frivolous petitions/complaint against the Husband.
The Wife has filed multiple complaints with different authorities and due to false complaints, Mental cruelty was inflicted on the husband by wife…
The Husband presented various evidences against wife, like complaint copy kalandara etc. Husband also presented various abusive messages from the wife side.
The above-discussed facts and circumstances unequivocally speak volumes of the fact that the respondent has incessantly been filing the complaints against the petitioner as well as his family members and the petitioner even had to go behind the bars in connection with one of those complaints, resulting in harm/damage to his image and reputation in the eyes of their relatives and the society at large. It has recently been observed by a three Judges’ Bench of the Apex Court in Joydeep Majumdar Versus Bharti Jaiswal Majumdar 2021 (2) R.C.R. (Civil) 289 that:- “12. When the appellant has suffered adverse consequences in his life and career on account of the allegations made by the respondent, the legal consequences must follow and those cannot be prevented only because, no Court has determined that the allegations were false. The High Court however felt that without any definite finding on the credibility of the wife’s allegation, the wronged spouse would be disentitled to relief. This is not found to be the correct way to deal with the issue.
Proceeding with the above understanding, the question which requires to be answered here is whether the conduct of the respondent would fall within the realm of mental cruelty. Here the allegations are levelled by a highly educated spouse and they do have the propensity to irreparably damage the character and reputation of the appellant. When the reputation of the spouse is sullied amongst his colleagues, his superiors and the society at large, it would be difficult to expect condonation of such
In a recent Judgement of Delhi High Court In Sarita Bakshi Vs. State the Hon’ble High Court first evaluated the salary slip of the Husband which looked like as mentioned below..
The Husband has deliberately shown a GPF loan deduction of Rs. 5150 which is deducted from salary but court held in this Judgement as under
In the present case, the total of income of the respondent has been shown as Rs. 49,407/- and the deductions have been shown as Rs. 19,452/-. After deductions the net carry on salary will come to Rs. 29,955/-. The learned Trial Court has rightly held that the deduction of Rs. 5,000/- towards recently taken personal loan cannot be considered as deduction as it is for his personal benefit and not mandatory statutory deduction; the total carry on home salary will thus come to about Rs. 35,000/- per month.
The Apex Court in the matter of Kulbhushan Kumar vs. Raj Kumari and Others MANU/SC/0349/1970 : (1970) 3 SCC 129 while adjudicating the deductions that can be made from the income of the husband before awarding maintenance, observed as below:
“…19. It was further argued before us that the High Court went wrong in allowing maintenance at 25% of the income of the appellant as found by the Income-tax Department assessment proceedings under the Income-tax Act. It was contended that not only should a deduction be made of income-tax but also of house rent, electricity charges, the expenses for maintaining a car and the contribution out of salary to the provident fund of the appellant. In our view some of these deductions are not allowable for the purpose of assessment of “free income” as envisaged by the Judicial Committee. Income-tax would certainly be deductible and so would contributions to the provident fund which have to be made compulsorily. No deduction is permissible for payment of house rent or electricity charges. The expenses for maintaining the car for the purpose of appellant’s practice as a physician would be deductible only so far as allowed by the income-tax authorities i.e. in case the authorities found that it was necessary for the appellant to maintain a car…”
A similar view was taken in the case of Nitin Sharma and Others vs. Sunita Sharma & Others (MANU/DE/0279/2021 : 2021 III AD (Delhi) 210), wherein a bench of this Hon’ble Court was pleased to hold as under:
“24. In the opinion of this Court, while calculating the quantum of maintenance, the income has to be ascertained keeping in mind that the deductions only towards income tax and compulsory contributions like GPF, EPF etc. are permitted and no deductions towards house rent, electric charges, repayment of loan, LIC payments etc. are permitted. On this aspect, the pertinent observations of Hon’ble Supreme Court in Dr. Kulbhushan Kunwar v. Raj Kumari MANU/SC/0349/1970 : (1970) 3 SCC 129, which have been followed by a Bench of Punjab & Haryana High Court in Seema & Anr. Vs. Gourav Juneja, are as under:-
“12. Section 125 Cr.P.C. stipulates that if any person having sufficient means neglects or refuses to maintain his wife, his legitimate or illegitimate minor child, who are otherwise unable to maintain themselves, shall be obligated to do so. A moral duty and a statutory obligation is cast upon the husband to maintain his wife, minor children, parents who otherwise are not capable of maintaining themselves. A person cannot be permitted to wriggle out of his statutory liability by way of availing huge loans and reducing a substantial amount of his salary for repayment of the same every month. Deductions that are made from the gross salary towards long term savings, which a person would get back at the end of his service and such as deductions towards Provident Fund, General Group Insurance Scheme, L.I.C. Premium, State Life Insurance can be deemed to be an asset that he is creating for himself. In arriving at the income of a party only involuntary deductions like income tax, provident fund contribution etc. are to be excluded. Therefore, such deductions cannot be deducted or excluded from his salary while computing his “means” to pay maintenance. In the case of Dr. Kulbhushan Kunwar v. Raj Kumari MANU/SC/0349/1970 : (1970) 3 SCC 129: 1971 AIR (SC) 234 while deciding the question of quantum of maintenance to be paid, the argument raised that deduction not only of income-tax but also of house rent, electricity charges, the expenses for maintaining a car and the contribution out of salary to the provident fund of the appellant was not allowed. Only deductions towards income-tax and contributions to provident fund which had to be made compulsorily were allowed. The relevant portion of Dr. Kulbhushan Kunwar’s case (supra) reads as under:–
“19. It was further argued before us that the High Court went wrong in allowing maintenance at 25% of the income of the appellant as found by the Income Tax Department in assessment proceedings under the Income Tax Act. It was contended that not only should a deduction be made of income-tax but also of house rent, electricity 20-11-2021 (Page 5 of 8) www.manupatra.com Ishaan Sharma charges, the expenses for maintaining a car and the contribution out of salary to the provident fund of the appellant. In our view some of these deductions are not allowed for the purpose of assessment of “free income” as envisaged by the Judicial Committee. Income Tax would certainly be deductible and so would contributions to the provident fund which have to be made compulsorily. No deduction is permissible for payment of house rent or electricity charges. The expenses for maintaining the car for the purpose of appellant’s practice as a physician would be deductible only so far as allowed by the income-tax authorities i.e. in case the authorities found that it was necessary for the appellant to maintain a car…”
In a nutshell, a husband cannot be allowed to shirk his responsibility of paying maintenance to his wife, minor child, and parents by availing loans and paying EMIs thereon, which would lead to a reduction of his carry home salary”
Sarita Bakshi vs. State and Ors. (03.06.2022 – DELHC) : MANU/DE/2076/2022
However the court allowed that the father of the husband who is 79 Years old and dependent on Son as legitimate and considered his share to be deducted.
Also the share of divorce sister were also considered as a deduction.
The father of the respondent may not be present before the Court to ask for maintenance, there is no argument or proof of his being independent or having financial resources to maintain himself. This Court still has to appreciate that even though he has not appeared before this Court it cannot be denied that he has to depend on his son at the age of 79. The father may not have considered filing case for maintenance before a Court of law. At times, parents may feel sad and inferior even at the thought of being maintained by their child and asking for maintenance. Their love and affection for their child is so overpowering that they may decide to live uncomfortably but not ask for maintenance. Parents want to feel independent as they don’t live with their children, their children live with them. With these thoughts in mind, I hold that the needs of the father are not many as he is staying with the respondent but a certain amount of expenditure must be apportioned for his needs.
In the present case, the learned counsel for the petitioner contends that a divorced sister cannot be held to be dependent on the petitioner. In my opinion, this stand is meritless to the extent that in India, the bond between siblings and their dependence on each other may not always be financial but it is expected that a brother or sister will not abandon or neglect his or her sibling in time of need. I completely agree with the learned counsel for the respondent that the petitioner’s divorced sister for claim for her maintenance and dependence can file a case against her husband. However, it has not been made clear in the present case as to whether the divorced sister of the respondent is receiving any maintenance or is being maintained by her husband or not. It is also not clear as to whether she is able to maintain herself as no argument has been put forth before this Court and it also does not find any mention in the judgment of the learned Trial Court. Therefore, I am of the view that though the divorced sister can legally and morally claim maintenance from her husband, the respondent, at the same time, must be spending and is expected to spend some amount for his sister on special occasions and in case of any emergent need. Therefore, though while apportioning the income of the respondent, one portion of income of the respondent cannot be apportioned to the sister, some amount as expenditure on yearly basis has to be kept aside for the divorced sister as moral obligation of the respondent. The plea of the petitioner that no amount should be considered to be spent on the divorced sister is meritless especially in the Indian context and the peculiar circumstances of the present case.
Sarita Bakshi vs. State and Ors. (03.06.2022 – DELHC) : MANU/DE/2076/2022
