WHETHER EDUCATED WIFE IS ENTITLED FOR MAINTENANCE ?

In the matrimonial litigations between the husband and wife, an important case is maintenance case which estranged wife is mainly filing against the husband. The maintenance petition can be filed u/s 125 Cr.P.C, under Domestic violence (D.V.) act and under section 24 of HMA if any proceeding under HMA such as ( Divorce Case, Restitution Petition or Petition for Judicial separation etc.) is pending in any court between the same party. Now days the wives are almost well educated and in some cases they are working/employed and earning equally as husbands are. But when matrimonial disputes arises between the party and maintenance litigation comes in the court, the basic question is being asked from the lawyers as to how she can file the petition for maintenance because she is well qualified and there is a capacity of earning and in view of the definition of Cr.P.C.125,she is not entitled for any maintenance. For better understanding we may refer the definition of section 125 Cr.P.C. which is as follow:-

Section 125 in The Code Of Criminal Procedure, 1973:-

125. Order for maintenance of wives, children and parents.

(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate  as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. Explanation.- For the purposes of this Chapter,-

a)" minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority;

b) " wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

c) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.

d) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month' s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such

Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife' s refusal to live with him.

4. No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

5. On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

So as per definition of 125 Cr.P.C vide Sec.125 (1) (a) the wife who is unable to maintain herself is not entitled for maintenance. But the question here is the wife who is healthy and well educated, comes under the terms of unable to maintain herself?

In this regard we may refer few judgments of the court to understand the term of “unable to maintain herself” and entitlement for maintenance:-

1.  Mamta Jaiswal Vs. Rajesh Jaiswal, Madhya Pradesh High Court Civil Revision No.1290 of 1999 decided on 24.03.2000.

In this case the Hon'ble High Court of Madhya Pradesh has held that well qualified spouses desirous of remaining idle, not making efforts for purpose of finding out a source of livelihood, have to be discouraged. It is further held that a lady, who is fighting matrimonial litigation 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 mean for creating an army of idle person 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 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 wait for a "dole" to be awarded by remaining entangled in litigation. That is also not permissible .The law does not help indolent 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 for 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 settlements because he would be reaping the in nature of pendente lite alimony, and to 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 are unable to support and maintain themselves and are required to fight out the litigation jeopardizing their hard earned money by toiling working hours.

2.  Damanreet Kaur Vs. Indermet Juneja & Anr. 2012 [4]          JCC 237.

In this case it was held that if the wife was working in past and resigned from the employment, she is not entitled for maintenance under Domestic Violence act. The question whether the wife was forced to resign or she has resigned herself is a question to be considered by the court during trial and also the question whether the reason given by her for resigning were satisfactory or not. These are the question to be gone in to during evidence by the ld. Trial Court.

3.  Vijay Kumar Vs. Harsh Lata Aggarwal decided on 10.09.2008 in CM (M) ENo.539/2008 by Hon’ble High Court of Delhi.

In this case the Hon'ble High Court of Delhi has held that when Income of both husband and wife are almost similar and both almost equally qualified, there is no justification to grant interim maintenance to the wife.

4.  Bhushan Kumar Meen Vs. Mansi Meen SLP (Crl) 7924 of 2008 Supreme Court .

In this case while reducing the maintenance amount from Rs.10000/- to Rs.5000/- granted by the lower court to the wife, the Supreme Court observed that " we cannot also shut our eyes to the fact that at present the respondent wife is not employed or at least there is nothing on record to indicate that she is employed in any gainful work. However having regard to the qualifications that she possesses, there is no reason why she ought not to be in a position to also maintain herself in the future.

5.  Omar Abdullah Vs. Payal Abdullah & Ors. 2018 (1) JCC 632.

In this case the Delhi High Court has directed the trial court to decide first the maintainability of the petition filed by the wife under section 125 Cr.P.C. The Court held that Maintainability of the petition under section 125 Cr.P.C and question of award of interim maintenance are inseparable. In Order to award interim maintenance ,the court concerned shall first arrive at a finding that whether the husband neglected or refused to give maintenance to his wife and whether the wife was unable to maintain herself ,then proceed with the case further.

6.  Suman Bhasin Vs.Neeraj Bhasin CC No.316/3/2007 Dated 27.05.2015 MM , Saket District Court”

In this case the Court came heavily and imposed cost of Rs. One lac for filing false Domestic Violence case against the Husband and in-laws. Court in its judgment has observed that Domestic Violence law has been misused.

7. Manushree Vs. Sachin case no.26/2016,decided on 15.01.2019, ADJ Saket District Court N.Delhi

In this case it was observed that Court should not be allowed to be used to extort money, junks woman’s maintenance plea and imposed a cost of Rs. One lac on the woman, saying the proceeding u/s 125 Cr.P.C has filed only to blackmail the Husband.

So in view of the above judgments, it is clear that the wife who is capable to earn and well qualified, is not entitled for maintenance.