Bench: Dr. Arijit Pasayat and Aftab Alam
Whether an earning spouse can claim maintenance under Section 125 of Cr.P.C?
In the present case the respondent had filed an application under Section 125 of Cr.P.C, claiming maintenance from the appellant. The appellant and respondent started living separately post 20 years of their marriage.
Respondent submitted that she was unemployed and unable to maintain herself and the Appellant had retired from the post of Assistant Director of Agriculture and was getting about Rs. 8,000/- as pension and a similar amount as house rent. Besides this, he was lending money to people on interest.
The appellant contended that the respondent was living in the house constructed by him only, purchased in the name of the applicant. Respondent let out the house on rent and was residing with one of their sons. The Respondent sold the agricultural land and the sale proceeds were still subsisting with her only.
The Hon’ble Supreme Court said that where the husband had placed material to show that the wife was earning some income it is not sufficient to rule out the application of Sec. 125 Code of Criminal Procedure. It has to be established that with the amount she earned, the wife was able to maintain herself. Where the personal income of the wife is insufficient, she can claim maintenance u/s 125 Code of Criminal Procedure. The test is whether the wife is in a position to maintain her in the way she was used to in the place of her husband. In the present case it was held that the respondent wife was unable to maintain herself, Hence she was entitled to maintenance.