LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Siv (engineer)     15 October 2012

Supreme court citations required on crpc-125 maintenanance

Dear All,

 

Wife is qualified (MSc in Nursing) and has working experinece of 3 years and was earning more than Rs.27,000/- per month and recently she resigned to harass husband family by claiming maintenance ....

 

Please let me know the citation from Supreme court that says that Wife Qualified and is capable of earning hence no maintenance....



Learning

 6 Replies

Rahul Dixit (owner)     15 October 2012

Hello Dear,

 

I am not specifically citing SUpreme COurt , instead citing anything and everything that could be of any help to you. 

 

1. Smt. Mamta Jaiswal vs Rajesh Jaiswal  - High COurt of Madhya Pradesh 

"According to me, Section 24 has been enacted for the purpose of providing a monetary assistance to such spouse who is incapable of supporting himself Or herself inspite of sincere efforts made by him or herself. A spouse who is well qualified to get the service immediately with less efforts is not expected to remain idle to squeeze out, to milk out the other spouse by relieving him of his or her own purse by a cut in the nature of pendente lite alimony. The law does not expect the increasing number of such idle persons who by remaining in the arena of legal battles, try to squeeze out the adversory by implementing the provisions of law suitable to their purpose.In the present case Mamta Jaiswal is a well qualified woman possessing qualification like M.Sc. M.C. M.Ed. Till 1994 she was serving in Gulamnabi Azad Education College. It impliedly means that she was possessing sufficient experience. How such a lady can remain without service ? It really puts a bug question which is to be answered by Mamta Jaiswal with sufficient congent and believable evidence by proving that in spite of sufficient efforts made by her, she was not able to get service and, therefore, she is unable to support herself. A lady who is fighting matrimonial petition filed for divorce, cannot be permitted to sit idle and to put her burden on the husband for demanding pendente lite alimony from him during pendency of such matrimonial petition. Section 24 is not meant for creating an army of such idle persons who would be sitting idle waiting for a 'dole' to be awarded by her husband who has got a grievance against her and who has gone to the Court for seeking a relief against her. The case may be vice verssa also. If a husband well qualified, sufficient enough to earn, site idle and puts his burden on the wife and waits for a 'dole' to be awarded by remaining entangled in litigation. That is also not permissible. The law does not help indolents as well idles so also does not want an army of self made lazy idles. Everyone has to earn for the purpose of maintenance of himself or herself, atleast, has to make sincere efforts in that direction. If this criteria is not applied, if this attitude is not adopted, there would be a tendency growing amongst such litigants to prolong such litigation and to milk out the adversory who happens to be a spouse, once dear but far away after an emerging of litigation. If such army is permitted to remain in existence, there would be no sincere efforts of amicable settlements because the lazy spouse would be very happy to fight and frustrate the efforts of amicable settlement because he would be reaping the money in the nature of pendente lite alimony, and would prefer to be happy in remaining idle and not bothering himself or herself for any activity to support and maintain himself or herself That cannot be treated to be aim, goal of Section 24. It is indirectly against healthyness of the society. It has enacted for needy persons who in spite of sincere efforts and sufficient effort are unable to support and maintain themselves and are required to fight out the litigation jeopardising their hard earned income by toiling working hours." 

 

2.  DALIP SINGH Appellant (s)

VERSUS

STATE OF U.P. & ORS. Respondent(s) - SUPREME COUR OF INDIA 

Bhawani Mahapatra (Law Officer)     15 October 2012

Nicely elaborated by Rahul.

stanley (Freedom)     15 October 2012

 

No interim maintenance to previously working wife

Context: Interim Maintenance denied in DV case when wife was working earlier
Complainant: Daman Reet Kaur
Respondent: Indermeet Singh
Judge: Pooja Talwar, MM, Mahila Court
Court: Saket District Court

IN THE COURT OF MS. POOJA TALWAR METROPOLITAN MAGISTRATE
(MAHILA COURT – SOUTH EAST DISTRICT)
SAKET COURTS COMPLEX. NEW DELHI

CCINOI 352/3
In the matter of: -
DAMAN REET KAUR….. .. . …. .. …… COMPLAI NANT
VS.
INDERMEET SINGH JUNEJA…….. ……. … RESPONDENT

DATE OF ORDER – 18.11.2010

ORDER ON INTERIM MAINTENANCE U/S 23 OF D. V. ACT
1. I shall dispose of an application filed for interim maintenance under Section 23 Protection of Women under Domestic Violence Act, (henceforth referred to as the D. V. Act).

2. The complainant has alleged that she has been subjected to various forms of domestic violence by her husband, the respondent. It has been argued that the respondent is working with Pitney Bose Software Company in Sector — 63, Noida and drawing an annual salary of Rs. 20 lacs per annum. Besides this, it is also argued that he is running a profitable business of computer software in a partnership along with his friend. Ld counsel for the complainant has prayed that the complainant is facing extreme hardship as the parties are habitual of enjoying a lavish life style, and therefore, suitable maintenance may be granted for food, clothing, residence apart from other basic necessities in accordance with the standard of living of the parties such as decent education of the child, clothes and toiletries of the child, her vaccination, maid servant and her expenses, car petrol and maintenance charges, mobile bills, electricity, water expenses and suitable Life Insurance Policies etc.

3. To support their averments both the parties have placed their salary slips on record. The complainant has also placed his ITRs for the last two years where his income is depicted to be approximately Rs. 14 lacs per annum.

4. In reply, Id counsel for the respondent has vehemently denied that any form of Domestic Violence has been ever committed upon the complainant. As regards the income, it has been denied that he is earning Rs. 20 lacs per annum and admitted that his monthly income is Rs. 85,000/- per month and also submitted that the complainant is presently working with Metlife and getting more than Rs. 50,000/- per month income and therefore, she is not entitled to get any maintenance as she is earning sufficiently to sustain herself.

5. The present application has been filed under Section 23 of the Domestic Violence Act for grant of maintenance. It would be essential to mention here that earlier application under Section 23 was filed along with main petition in which monetary relief was not claimed where as in the present application which is again filed under the same Section in which the monetary relief has been claimed. It has been objected to by the respondent in the reply to the application that the same does not lie and the application should have been filed under Section 25 (2) of D. V. Act. Without going into the technicalities, the application may be read as an application under the relevant provisions of the D. V. Act.

6. I have heard the submission advanced by counsels for both the parties. It has been stated by the counsel for the complainant that
the complainant has all along been very fair and honest in her complaint by submitting that she was working and had means to sustain
herself. She has not filed application for grant of interim maintenance for herself as she was earning sufficiently to maintain
herself and take care of her daily needs but today the situation has changed and she is jobless and totally dependent on the mercy of her
old and ailing parents.

7. The present application has been strongly opposed by the counsel for the respondent with a catena of judgements showing that having a
capacity to work and choosing not to work is no ground for grant of maintenance, as, admittedly the complainant is well educated lady who has been earning approximately Rs. 50,000/- per month from her last job. If she has chosen not to work out of her own sweet will she cannot be permitted to take advantage of her own deed. In one of the judgments filed by the respondent it is well-established maxim of Anglo Saxon jurisprudence that ‘no person can be allowed to incapacitate himself”. The gist of all the judgments filed by the respondent is that when the complainant is an able bodied person having capacity to earn and has actually been earning in the past is not entitled to receive any maintenance. When she could sustain herself by earning handsome salary in the past she would be able to get a job if she earnestly tries to search one.

8. As regards the maintenance of the child, the respondent has conceded that he is ready and willing to bear the expenditure of the child by accepting the fact that he is equally liable to maintain his child as her mother is.

9. Pursuant to what has been stated by both the counsels for the parties, I am of the view that although the complainant has been working in the past but the situation today is that she is not earning and that she has no money to sustain herself but then it cannot be denied that she is in a capacity to work and with earnest effort she shall be able to search a suitable job for herself.

10. As far as the maintenance of the child is concerned, since she is not the petitioner in the present complaint I would not be able to pass any orders as regards the maintenance for the daughter of the parties. Since the respondent has conceded to the fact that he is ready to maintain the child, he can do so voluntarily of his own accord.

11. As far as the maintenance of the complainant is concerned I am not inclined to pass any orders for maintenance.

12. Accordingly, the present application is disposed of.

Announced in the open Court on 18.11.2010

Tajobsindia (Senior Partner )     15 October 2012

Re-affirmed by D HC under revision [with ref.: Mamta Jaiswal (supra)]

IN THE
HIG
H COURT OF DELHI AT NEW DELHI
CRL.REV.P. 344/2011

 


DAMANREET KAUR
..... Petitioner
Through: Mr.Sugam Puri, Advocate

 

Versus

 

INDERMEET JUNEJA & ANR ..... Respondents
Through: Mr.Shyam Moorjani with

Mr.Taru Goomber, Mr.Pankaj Mendiratta

and Mr. Gaurav Goswami, Advocates.

 

RESERVED ON: 19.04.2012
PRONOUNCED ON: 14.05.2012

 

CORAM:

HON'BLE MS. JUSTICE PRATIBHA RANI

 

 

1. The petitioner has preferred this revision petition impugning the order dated 01.06.2011 passed by the learned Addl. Sessions Judge, Delhi. The petitioner is wife of respondent Indermeet Juneja. She filed a complaint case bearing No.352/3 under Section 12 of Protection of Women from Domestic Violence Act, 2005 along with an application for monetary relief under Section 23 of the Act. Her prayer for interim monetary relief was declined vide order dated 18.11.2010 by the learned M.M.

 

2. Feeling aggrieved, she preferred an appeal against the said order passed by the learned M.M. declining monetary relief to her. In appeal, the learned ASJ vide the impugned order dated 01.06.2011 though declined the prayer of interim monetary relief to the petitioner, partly allowed the appeal and directed the respondent to pay a sum of Rs.10,000/- per month from the date of filing of the petition towards contribution of the respondent to maintain the child born out of the wedlock of the parties.

 

3. The grievance of the petitioner is that the learned ASJ committed an error in declining the relief to her on the ground that she was well qualified, capable to maintain herself and had the capacity to work and that she had also been actually earning in the past and was thus not entitled to get any maintenance from the respondent. The petitioner has submitted that earlier she was working with Met Life Insurance Company since the birth of her child. The company due to its relocation process had asked the petitioner to shift to Bangalore. She could not accept this offer as it would not be appropriate for the child to be uprooted from the place where she has been residing and due to the fact that there were visitation orders passed by the learned Sessions Court and had the petitioner along with the child shifted to Bangalore, the said orders could not have been complied with. As such the petitioner turned down the offer of the company. The company refused to change its policy and the petitioner was forced to resign from her job.

 

4. The relieving letter placed on record by the petitioner is dated 17.08.2010. As per this relieving letter the date of joining of the petitioner with Met Life was 07.01.2008 and her designation at the time of leaving the company was Assistant Manager (Service Delivery). She has been relieved pursuant to her resignation letter dated 17.06.2010. This letter is not accompanied by the resignation letter of the petitioner giving the reasons for her resignation or the policy of the company to shift her to Bangalore. It is relevant to mention here that while the date of joining of petitioner with Met Life Insurance is 07.01.2008, the petitioner has given birth to a female child on 18.09.2008 i.e. in the same year and despite having infant child to take care, she has served the company till she was relieved on 17.08.2010.

 

5. The contention of petitioner is that in order to comply with the order of the Court to allow the respondent to have visitation right she could not shift to Bangalore. There is nothing on record to indicate that at any point of time despite continuous litigation going on between the parties she had approached the Court for modification of the order regarding visitation right. If the petitioner of her own prefers to resign, she cannot take shelter under the Court order regarding visitation right. With the passage of time the child has grown up and is of school going age. Thus, it is more convenient for a working mother to be in the job then to sit at home.

 

6. The learned ASJ has rightly declined the interim monetary relief to the petitioner by holding that she was well educated lady earning Rs.50,000/- per month and had chosen not to work of her own will though had the capacity to work and find a suitable job for herself.

 

7. The learned ASJ in the impugned order has also corrected the error appearing in the order of learned M.M declining the monetary relief to the child for the reason that she was not the petitioner before the Court. In para-10 of the impugned order, the learned ASJ, after considering the facts and relevant case law has concluded as under:-

 

"10. On perusal of record and after hearing the submissions made at bar, I do not find any infirmity in the impugned order as regards maintenance to the appellant/wife is concerned. The question, whether appellant/wife was forced to resign or she had resigned herself is a question to be considered by the court during trial and also the question whether the reasons given by her for resigning were satisfactory or not. These are the question to be gone into during evidence by the Learned Trial Court. But, the observation of the Learned Trial Court in para-10 i.e. "As far as the maintenance of the child is concerned, since she is not the petitioner in the present complaint, I would not be able to pass any orders as regards the maintenance for the daughter of the parties", is erroneous and cannot be sustained. Admittedly on the date, when application u/s. 12 of the “act was filed by the appellant/wife, child was in the custody of the husband. Secondly, if the scheme of the act is seen as a whole, it is obvious that it is not necessary that the child should be impleaded as a party. Relief can be granted to the child or for the benefit of the child without child being impleaded as a party. The relief can be granted not only to the aggrieved person, but also to the „child. On reading of Section 20 and 21 of the „Act it is clear that not only aggrieved person, but any child or children may be granted relief. The court has to keep in mind the interest and the welfare of the child, even if child is not a party. Therefore, orders as regard custody or the maintenance or the welfare of the „children can be passed even if child is not a party in the application filed under the “Act before Learned Metropolitan Magistrate. There is manifest error in the impugned order as regards the observations in para-10 of the impugned order, which is set aside. In view of this, it is directed that Learned Trial Court shall decide the quantum of maintenance for the minor daughter of the parties after making a realistic assessment of the needs of child, keeping in view the status of parties, on the basis of material placed on record by the parties. Respondent/husband submitted that he was ready and willing to bear 50% of expenditure of the child. He can show his bonafide by providing some assistance to the child so that the child is brought up in an appropriate atmosphere and so that she is provided with minimum comfort, which the child requires.”

 

11. In the circumstances, till further orders are passed by the Learned Trial Court, I deem it expedient in the interest of justice to direct the respondent/husband to pay sum of Rs.10,000/- per month towards his contribution from the date of filing of the petition to maintain the child. The amount ordered to be paid by respondent / husband shall not tantamount to be an expression on merits of the case. Appeal stands disposed of accordingly. TCR be sent back along with copy of this order. File be consigned to Record Room."

 

8. In Smt.Mamta Jaiswal vs. Rajesh Jaiswal 2000(3) MPLJ 100, the High Court of Madhya Pradesh while dealing with identical situation observed that well qualified spouses desirous of remaining idle, not making efforts for the purpose of finding out a source of livelihood, have to be discouraged, if the society wants to progress. For better appreciation, relevant paragraphs of the said decision are reproduced hereunder:-

 

"In view of this, the question arises, as to in what way Section 24 of the Act has to be interpreted. Whether a spouse who has capacity of earning but chooses to remain idle, should be permitted to saddle other spouse with his or her expenditure? Whether such spouse should be permitted to get pendent lite alimony at higher rate from other spouse in such condition? According to me, Section 24 has been enacted for the purpose of providing a monetary assistance to such spouse who is incapable of supporting himself or herself inspite of sincere efforts made by him or herself. A spouse who is well qualified to get the service immediately with less efforts is not expected to remain idle to squeeze out, to milk out the other spouse by relieving him of his or her own purse by a cut in the nature of pendent lite alimony. The law does not expect the increasing number of such idle persons who by remaining in the arena of legal battles, try to squeeze out the adversary by implementing the provisions of law suitable to their purpose. In the present case Mamta Jaiswal is a well qualified woman possessing qualification like M.Sc. M.C M.Ed. Till 1994 she was serving in Gulamnabi Azad Education College. It impliedly means that she was possessing sufficient experience. How such a lady can remain without service? It really put a big question which is to be answered by Mamta Jaiswal with sufficient cogent and believable evidence by proving that in spite of sufficient efforts made by her, she was not able to get service and, therefore, she is unable to support herself. A lady who is fighting matrimonial petition filed for divorce, cannot be permitted to sit idle and to put her burden on the husband for demanding pendente lite alimony from him during pendency of such matrimonial petition. Section 24 is not meant for creating an army of such idle persons who would be sitting idle waiting for a „dole to be awarded by her husband who has got a grievance against her and who has gone to the Court for seeking a relief against her. The case may be vice versa also. If a husband well qualified, sufficient enough to earn, sit idle and puts his burden on the wife and waits for a dole to be awarded by remaining entangled in litigation. That is also not permissible. The law does not help indolents as well idles so also does not want an army of self made lazy idles. Everyone has to earn for the purpose of maintenance of himself or herself, at least, has to make sincere efforts in that direction. If this criteria is not applied, if this attitude is not adopted, there would be a tendency growing amongst such litigants to prolong such litigation and to milk out the adversary who happens to be a spouse, once dear but far away after an emerging of litigation. If such army is permitted to remain in existence, there would be no sincere efforts of amicable settlements because the lazy spouse would be very happy to fight and frustrate the efforts of amicable settlement because he would be reaping the money in the nature of pendent lite alimony, and would prefer to be happy in remaining idle and not bothering himself or herself for any activity to support and maintain himself or herself. That cannot be treated to be aim, goal of Section 24. It is indirectly against healthiness of the society. It has enacted for needy persons who in spite of sincere efforts and sufficient effort are unable to support and maintain themselves and are required to fight out the litigation jeopardizing their hard earned income by toiling working hours.

 

In the present case, wife Mamta Jaiswal, has been awarded Rs.800/- per month as pendent lite alimony and has been awarded the relief of being reimbursed from husband whenever she makes up a trip to Indore from Pusad, Distt. Yeotmal for attending Matrimonial Court for date of hearing. She is well qualified woman once upon time obviously serving as lecturer in Education College. How she can be equated with a gullible woman of village? Needless to point out that a woman who is educated herself with Masters degree in Science, Masters Degree in Education, would not feel herself alone in travelling from Pusad to Indore, when at least a bus service is available as mode of transport. The submission made on behalf of Mamta, the wife, is not palatable and digestible. This smells of oblique intention of putting extra financial burden on the husband. Such attempts are to be discouraged."

 


9. Section 20 (1) (d) of PWDV Act, 2005 specifies that upon appropriate proof, the court may order the respondent to pay maintenance to the aggrieved person and to her children and further permits the Court to pass an order of maintenance under the PWDVA in addition to maintenance already granted under section 125 Cr.P.C.

 

10. In State of Maharashtra vs. Sujay Mangesh Poyarekar (2008) 9 SCC 475 it was held that powers of the revisional courts are very limited and the revisional court should not interfere unless there is a jurisdictional error or an error of law is noticed.

 

11. The learned ASJ in the impugned order has rightly observed that the question whether the petitioner-wife was forced to resign or had resigned herself is a question to be considered during trial and also the question whether the reasons given by her for resigning from her job were satisfactory or not.

 

12. It is worth mentioning here that the child for which maintenance of Rs.10,000/- per month from the date of filing of the petition has been ordered by Learned Addl. Sessions Judge is just and fair and sufficient to meet the requirements of a child which is aged about 3 ½ years.

 

13. There is no jurisdictional error or error in law in the impugned order. The petition being devoid of merit is hereby dismissed with no order as to costs.

 

(PRATIBHA RANI)

JUDGE

MAY 14, 2012/
# dc

Siv (engineer)     15 October 2012

Thanks a lot for the valuable information.

Bal Mukund Shah(9826310378) (Advocate)     02 February 2013

Very good judgment

Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  



Post a Suggestion for LCI Team
Post a Legal Query