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Sameer12345 (SSE)     16 November 2012

Maintenance amount - please predict

Wife's CRPC 125 is ongoing.

1) Wife has mentioned she has no income. She is a D O C T O R (BHMS)

2) Minor Child

3) Wife has again mensioned that I am also liable to maintain my widow mother.

4) Current Salary of Husband - 50,000K

Now How much amount as maintenance will be awarded to Wife?

 

Wife asking 20 K for herself and 5 K for minor Child.



Learning

 9 Replies

Adv. Nikhil Seth (legal consultant (9867264707))     16 November 2012

if wife is doctor and qualified than why is he asking maintainance for herself for child is ok but not for wife ask your lawyer to press that qualified woman are not eligible for maintainaceand if she is practising than no question of her maintainance.

 

Adv. NIKHIL SETH

Mumbai.

1 Like

stanley (Freedom)     16 November 2012

I agree with the above and a no of judgments where working or qualified wife is denied maintanence . Even for the child it would be co- extensive .

1 Like

rahul (director)     16 November 2012

 

  

   IN THE HIGH COURT OF DELHI AT NEW DELHI
  
  CM(M) 1153/2008
  
  KAVITA PRASAD .....
  Petitioner
  
  
  Through: Mr. S.D. Singh, Adv.
  
  
versus
  
  RAM ASHRAY PRASAD ..... Respondent
  Through:
  
  CORAM:
   HON'BLE MR. JUSTICE SHIV NARAYAN DHINGRA
  
   O R D E R
   01.10.2008
  
  The petitioner who is an MBBS qualified Doctor and admittedly had
  been in practice before, claims that she was sitting at home despite being a
  qualified Doctor and does not work. The petitioner claimed maintenance against
  her husband who is in service. The Trial Court granted maintenance of
  Rs.4,000/- per month. This petition is made against observation of the Trial
  Court that she was working somewhere and earning around Rs.8,000 to 10,000/- PM
  and that the maintenance granted by the Trial Court was made subject to
  adjustment of the maintenance being received by her under Section 125.
  Since counsel for the petitioner states that petitioner is not
  working anywhere, despite being a qualified Doctor, I consider that as she is
  receiving maintenance from husband, the Court should not allow her experience
  and qualification to go waste. I consider that she should be directed to work as
  a honorary Doctor in some public welfare institute or school free of charges
  where she can take care of health of the poor people.
  Let her come to Court and give an undertaking that she was
  prepared to work without charging anything in any institution named by this
  Court around her house minimum 5 hours a day and 6 days a week, so long she
  receives maintenance from her husband on the plea of being unemployed.
  List on 23rd October, 2008.
  
  
  SHIV NARAYAN DHINGRA,J
  OCTOBER 01, 2008
  ak
  i.35
  

 
1 Like

rahul (director)     16 November 2012

 

Karnataka High Court
Dr. E. Shanthi vs Dr. H.K. Vasudev on 22 August, 2005
Equivalent citations: AIR 2005 Kant 417, ILR 2005 KAR 4981
Author: Manjunath
Bench: K Manjunath

ORDER

Manjunath, J.

1. Petitioner is the wife of the respondent. Both of them are Doctors by qualification. The respondent is working as a Medical officer in a Government Hospital. The respondent has filed a divorce petition in MC. No. 57/2001 on the file of the Family Court at Mysore. In the said proceedings, the petitioner filed an application under Section 24 of the Hindu Marriage Act claiming an interim maintenance of Rs. 5,000/ per month and litigation expenses of Rs. 50,000/-. The said application is dismissed by the Trial Court on the ground that the petitioner is also attending as a Doctor in "Hariharan Clinic", which according to the respondent is a very famous clinic in Chennai. This order is called in question in this writ petition.

2. According to the learned Counsel for the petitioner, the name of the petitioner appears on the board of Hariharan Clinic as one of the consulting Doctors and the said name appears along with her brother prior to marriage and even though she is not practicing as a Doctor, her name on the board continuous and therefore, petitioner is entitled for a separate maintenance.

3. 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.

4. At this stage, learned Counsel for the petitioner submits that out of the Wed-lock parties have got a minor daughter who is studying in school. When the parties are having a daughter out of their wedlock, it is the responsibility of the father to maintain the child. Admittedly, the respondent is working as a Medical Officer at Chamarajanagar, considering his salary and the fact that he has to maintain his aged parents, this Court directs the respondent herein to pay a sum of Rs. 2,500/- per month from the date of filing of this petition before this Court to maintain the child. Accordingly, the petition is disposed of.

1 Like

rahul (director)     16 November 2012

 

Rajasthan High Court
Govind Singh vs Smt. Vidya on 21 April, 1999
Equivalent citations: AIR 1999 Raj 304, II (2000) DMC 693, 1999 (3) WLC 376
Bench: A Singh

JUDGMENT

1. Heard the learned counsel for the appellant and perused the impugned order dated 30-1-1999 whereby the application filed by the appellant under Section 24 of the Hindu Marriage Act, 1955 was rejected.

2. The appellant was formerly earning his living by running an auto-rikshaw on hire. He has stopped that work. The respondent is said to be working as a nurse in hospital. The learned trial Court rejected the application filed by the appellant under Section 24 of the Hindu Marriage Act, 1955 on the ground that there was nothing to show that the appellant was incapable of earning his living.

3. I have carefully considered the reasons given by the learned trial Court for rejecting the application filed by the appellant for interim maintenance. It is true that Section 24 of the Hindu Marriage Act, 1955 entitles either party to move an application for maintenance provided such party has no means of subsistence and the other party is in a position to provide maintenance. But it does not mean that the husband who is otherwise capable of earning his living should stop earning the living and start depending on earning of his wife. In the instant case it appears that the appellant Govind Singh has incapacitated himself by stopping the running the auto-rikshaw on hire. It is a well-established maxim of Anglo Saxon jurisprudence that no person can be allowed to incapacitate himself. That maxim is applicable to the case of earning husband. A person who voluntarily incapacitates himself from earning is not entitled to claim maintenance from the other spouse.

4. I, therefore, do not find any force in this appeal. It deserves to be dismissed at the admission and is hereby dismissed.

1 Like

rahul (director)     16 November 2012

 

Madhya Pradesh High Court
Smt. Mamta Jaiswal vs Rajesh Jaiswal on 24 March, 2000
Equivalent citations: II (2000) DMC 170
Author: J Chitre
Bench: J Chitre

ORDER

J.G. Chitre, J.

1. The petitioner Mamta Jaiswal has acquired qualification as MSc. M.C. M.Ed, and was working in Gulamnabi Azad. College of Education, Pusad, Distt. Yeotmal (MHS). The husband Rajesh Jaiswal is sub-engineer serving in Pimampur factory. The order which is under challenge by itself shows that Mamta Jaiswal, the wife was earning Rs. 4,000/- as salary when she was in service in the year 1994. The husband Rajesh Jaiswal is getting salary of Rs. 5,852/-. The Matrimonial Court awarded alimony of Rs. 800/- to Mamta Jaiswal per month as pendente lite alimony, Rs. 400/- per month has been awarded to their daughter Ku, Diksha Jaiswal. Expenses necessary for litigation has been awarded to the tune of Rs. 1,500/-. The Matrimonial Court has directed Rajesh Jaiswal to pay travelling expenses to Mamta Jaiswal whenever sheattends Court for hearing of them matrimorial petition pending between them. Matrimonial petition has been filed by husband Rajesh Jaiswal for getting divorce from Mamta Jaiswal on the ground of cruelty. This revision petition arises on account of rejection of the prayer made by Mamta Jaiswal when she prayed that she be awarded the travelling expenses of one adult attendant who is to come with her for attending Matrimonial Court.

2. Mr. S.K. Nigam, pointed out that the petition is mixed natured because if at all it is touching provisions of Section 26 of Hindu Marriage Act, 1955 (hereinafter referred to as Act for convenience) then that has to be filed within a month. Mr. Mev clarified that it is a revision petition mainly meant for challenging pendente lite alimony payable by the husband in view of Section 24 of the Act. He pointed out the calculations of days in obtaining the certified copies of the impugned order. In view of that, it is hereby declared that this revision petition is within limitation, entertainable, keeping in view the spirit of the Act and Section 24 of it.

3. A wife is entitled to get pendente lite alimony from the husband in view of provisions of Section 24 of the Act if she happens to be a person who has no independent income sufficient for her to support and to make necessary expenses of the proceedings. The present petitioner, the wife, Mamta Jaiswal has made a . prayer that she should be paid travelling expenses of one adult member of her family who would be coming to Matrimonial Court at Indore as her attendant. Therefore, the question arises firstly, whether a woman having such qualifications and once upon a time sufficient income is entitled to claim pendente lite alimony from her husband in a matrimonial petition which has been filed against her for divorce on the ground of cruelty. Secondly, whether such a woman is entitled to get the expenses reimbursed from her husband if she brings one adult attendant alongwith her for attending the Matrimonial Court from the place where she resides or a distant place.

4. In the present case there has been debate between the spouses about their respective income. The husband Rajesh has averred that Mamta is still serving and earning a salary which is sufficient enough to allow her to support herself. Wife Mamta is contending that she is not in service presently. Wife Mamta is contending that Rajesh, the husband is having salary of Rs. 5,852/- per month. Husband Rajesh is contending that Rs. 2,067/- out his salary, are deducted towards instalment of repayment of house loan. He has contended that Rs. 1,000/- are spent in his to and fro transport from Indore to Pithampur. He has also detailed by contending that Rs. 200/- are being spent for the medicines for his ailing father. And, lastly, he has contended that by taking into consideration these deductions as meagre amount remains available for his expenditure.

5. It has been submitted that Mamta Jaiswal was getting Rs. 2,000/- as salary in the year 1994 and she has been removed from the job of lecturer. No further details are available at this stage. Thus, the point is in a arena of counter allegations of these fighting spouses who are eager to peck each other.

6. 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 pendente 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 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.

7. In the present case, wife Mamta Jaiswal, has been awarded Rs. 800/- per month as pendente lite alimony and has been awarded the relief of being reimbursed from husband whenever she makes a trip to Indore from Pusad, Distt. Yeotmal for attending Matrimonial Court for date of hearing. She is well qualified woman once upon time abviously 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 Master's degree in Science, Masters Degree in Education,. would not feel herself alone in travelling from Pusad to Indore, when atleast a bus service is available as mode of transport. The sumbission made on behalf of Mamta, the wife, is not palatable and digestable. This smells of oblique intention of putting extra financial burden on the husband. Such attempts are to be discouraged.

8. In fact, 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. The spouses who are quarelling and coming to the Court in respect of matrimonial disputes, have to be guided for the purpose of amicable settlement as early as possible and, therefore, grant of luxurious, excessive facilities by way of pendente lite alimony and extra expenditure has to be discouraged. Even then, if the spouses do not think of amicable settlement, the Matrimonial Courts should dispose of the matrimonial petitiorisas early as possible. The Matrimonial Courts have to keep it in mind that the quarells between the spouses create dangerous impact on minds of their offsprings of such wedlocks. The offsprings do not understand as to where they should see ? towards father or towards mother ? By seeing them both fighting, making allegations against each other, they get bewildered. Such bewilderedness and loss of affection of parents is likely to create a trauma on their minds and brains. This frustration amongst children of tender ages is likely to create complications which would ruin their future. They cannot be exposed to such danger on account of such fighting parents.

9. In the present case the husband has not challenged the order. Therefore, no variation or modification in it is necessary though this revision petition stands dismissed. The Matrimonial Court is hereby directed to decide the matrimonial petition which is pending amongst these two spouses as early as possible. The Matrimonial Court is directed to submit monthwise report about the progress of the said matrimonial petition to this Court so as to secure a continuous, unobstructed progress of matrimonial petition. No order as to costs. The amount of pendente lite alimony payable to Mamta Jaiswal by husband Rajesh Jaiswal should be deposited by him within a month by counting the date from the date of order. The failure on this aspect would result in dismissal of his matrimonial petition. He should continue payment of Rs. 400/- per month to his daughter Ku. Diksha Jaiswal right from the date of presentation of application of her maintenance i.e. 14.5.1998. That has to be also deposited within a month. He may take out sufficient money for that from his savings or take a loan from some good concern or loan granting agencies. Failure in this aspect also would result in dismissal of his petition. C.C.

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com))     16 November 2012

 

When the maintenance proceedings are on – then in that case you can always emphasise strongly on the fact that these provisions were meant to protect genuinely harassed and incapable women from starvation and destitution, and not a vehicle of oppression allowing women to live as parasites. ‘Incapacity to earn is the most vital consideration’ Hence if a wife is otherwise able bodied and educated and fails to work solely because of sheer lethargy and desire to break down husband financially in that situation she is not entitled to any maintenance. 

 

THESE JUDGMENTS MAY BE IMMENSELY HELPFUL FOR THOSE FACING MAINTENANCE PROCEEDINGS !

1. Madhya Pradesh High Court – Smt. Mamta Jaiswal vs Rajesh Jaiswal on 24 March, 2000 – Equivalent citations: 2000 (4) MPHT 457

“6. 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 pendente life 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 in spite 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 life 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 big 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, can not 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, sits 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 can not he treated to he 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 efforts arc unable to support and maintain themselves and arc required to fight out the litigation jeopardising their hard earned income by toiling working hours”

 

2. ) Kumaresan Vs. Aswathi  reported in (2002) 2 MLJ 760

wherein it has been held as under :- “8…….A plain reading of the above provision would show that the only condition required for grant of maintenance pendente lite is the party should not have sufficient independent income for her/his support. If it is found that the applicant has sufficient income for his/her support, no amount can be allowed as maintenance pendente lite as per section 24 of the Act. But of course, if it is found that the applicant has no sufficient independent income for his/her support, such application can be considered and suitable maintenance amount can be awarded pendente lite.”

 

3. Manokaran @ Ramamoorthy Vs. M. Devaki reported in AIR 2003 Mad 212, wherein it has been held as under :-

“5…..The above averment shows that the petitioner herein/husband is working in Senthil Auto Garage, Annai Sathya Nagar, Chennai-102 and drawing a salary of Rs.2000/- per month. Likewise, it is also seen that the respondent herein/wife is working in Raj T.V and drawing

a salary of Rs.4,500/-. Though the said aspect has not been substantiated, I have already referred to the admission of the respondent herein in her counter statement filed in the main O.P.1310/2000 wherein she admitted that she secured a private job and is getting salary and staying with her brother. On the other hand, it is established particularly from Ex. R-1, the petitioner herein is getting only Rs.70/- per day or Rs.2000/- per month by working in Senthil Auto Garage. I have already referred to the language used in Section 24 which makes it clear that for grant of maintenance pendente lite the party should not have sufficient independent income for her support. In the light of the materials available, particularly the admitted case of the respondent/wife, she is employed in a private Satelite T.V. and earning for her livelihood staying with her brother, it cannot be construed that she is not having sufficient independent income. The Family Court lost its sight to consider the above material aspect.”

 

If these judgments coupled with strong oral arguments, can really help rule out any adverse maintenance orders.

 

Good Luck !


Bharat Chugh

Advocate

Stay Connected : www.facebook.com/advocatebharatchughonthelawsofindia

 

2 Like

ANAMIKA VICHARE (LAWYER)     25 November 2012

Qualified wives are not supposed to sit idle expecting to receive dole from hubbies

2 Like

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