Madhya Pradesh High Court
Smt. Aneeta Joshi, W/O Subhash Joshi, ... vs Subhash Joshi, S/O Purushottam Joshi on 13 April, 2006
Author: Manjusha Namjoshi
Bench: Manjusha Namjoshi
ORDER Manjusha Namjoshi, J.
1. This revision is under Section 397 read with Section 401 Cr.P.C
2. Applicant and non applicants are wife and husband. By an order dated 15.2.1999 in MJC No. 187/1997 under Section 125 Cr.P.C the Judicial Magistrate First Class, Bhopal had passed an order in favour of applicant granting maintenance of Rs. 1000/- per month to be paid by the non applicant. Thereafter, the husband moved an application under Section 127 Cr.P.C for cancelling the order of maintainance before the Family Court which was registered as MJC No. 1178/2002. The Family Court by its order dated 10.5.2005 ordered that the wife Aneeta has sufficient means to maintain, hence the order of Judicial Magistrate was set at not.
3. Against this the applicant Aneeta Joshi has come before this Court.
4. On perusal of the record, it appears that Aneeta had registered herself as an Advocate and had started practice in Bhopal Court since 1998. In 1999 on 15.2.1999 the Judicial Magistrate First Class, Bhopal passed an order of maintainance in her favour. When the husband Subhash moved an application under Section 127 Cr.P.C the Family Court held that Aneeta is a practicing Advocate and she must be earning sufficient money to maintain herself therefore, the order of maintainance passed by the Judicial Magistrate First Class, Bhopal was set aside.
5. There is nothing on record of the Family Court in MJC No. 1178/2002 that she is earning sufficient money to maintain herself. The husband Subhash does not know how much money she earns. He says that he leart from few Advocates that her monthly income is about 5 to 6 thousand. This is just hearsay evidence. No one has been examined in support of this contention. Aneeta does not admit this fact and says that she yet practices as a junior to some Advocate and has no separate establishment. She further says that the distance between her house and his senior is quite long and she is not able to attend his senior's office regularly. She further says that in city like Bhopal she has not her own independant vehicle and hence as a routine she is dependant on her sister who drops her on her vehicle. The family court has also not given any specific finding on her actual income or estimated income. What the Family court says is since she has started practice it means that now she has sufficient means to maintain herself. The court below has referred to one case of Durga Singh Lodhi v. Prembai and Ors. 1990 JLJ 307. In para 4 of the judgment it is said at page 309 as under:
in our opinion, mere absence of visible means or real estate will not entitle such a person to escape the liability to pay maintenance awarded under Section 125(1), as even at the stage of enforcement of the order under Section, 125(1), an able bodied healthy person capable of earning, must be subjected to pay maintenance allowance. If, with this visible capacity to earn, he avoids payment, it has to be held that he has so done for no sufficient cause.
6. Applying the anology of this citation in Family Court in para 10 of the order says that though she may not have visible means or real estate but she is not entitled to maintenance allowance as she has started practicing as an Advocate and she is capable of maintaining herself by earning through profession. The reasoning is misconceived. The spirit under Section 125(1) Cr.P.C is not like this what is stated in that Section is "If any person having sufficient means neglects or refuses to maintain (a) his wife, unable to maintain herself...."
Here under this provision if the wife is unable to maintain herself she is entitle to have allowance from her husband. It is no where shown that she has sufficient means to maintain herself. There is no iota of evidence on record to substantiate this fact. Merely because she has started practice and has completed about 6 to 7 years as an Advocate, this does not inspo facto show that she is earning sufficient money to maintain herself. What it reveals that she has developed capacity to earn. But what are her earnings is a question of fact which has not been proved by the husband Subhash. The concept of able-bodied male person's ability to earn should not be applied, to determine the question 'unable to maintain'. Unable to maintain has nothing to do with the phrase 'potential earning capacity' of the applicant for maintenance. Unable to maintain herself does not mean that if the wife is able bodied and possesses an earning potentiality, she can maintain herself. If that were so, applications under Section 125(1) by the wives would be thrown out on the ground they are physically fit. Thus, once the wife has pleaded that she is unable to maintain herself, the burden is on the husband to prove that she has sufficient means to maintain herself. In the present case, when the Judicial Magistrate First Class, Bhopal passed its order dated 15.2.1999 the wife had already started practice. When the husband moved an application under Section 127 Cr.P.C before Family Court, he utterly failed to prove that she has 'sufficient means' to maintain herself.
7. In the present day circumstances, the amount of Rs. 1000/- is too meagre sum to maintain oneself. Even in present case Aneeta may be earning some money through practice but this does not mean that she is maintaining herself according to the standard of her husband. The wife cannot be put to disadvantage merely because she is practicing as an Advocate. It cannot be made imperative on her to stop working and then seek maintenance from the husband. No evidence has been led to show that whether she fetches any remuneration for the practice which she does. It should have been proved that she herself was in a position to maintain herself and her earnings should not be much below the status which she was used to at the place of her husband.
8. Thus, in the circumstances of the case the order of the Family Court dated 10.5.2005 cannot stand and hence it is set aside. The revision is accordingly allowed. Husband Subhash shall continue to pay the allowance as per the order dated 15.2.1999 of Judicial Magistrate First Class, Bhopal.
9. Looking to the circumstances of the case, the applicant shall be entitled to costs of Rs. 1000/- from the non applicant.