Allahabad High Court
Piyush Kharya vs Aakansha Goswami on 4 July, 2022
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 39 Case :- FIRST APPEAL No. - 411 of 2022 Appellant :- Piyush Kharya Respondent :- Aakansha Goswami Counsel for Appellant :- Rama Goel Bansal,Shalini Goel Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Mrs. Sadhna Rani (Thakur),J.
Heard learned counsel for the appellant and perused the record.
The appellant herein is working as a Pilot in Indigo Airlines and is earning at least Rs. 1 Lakh per month whereas the respondent-wife is a Cleanliness and Food Inspector in the Nagar Nigam, Lucknow and her monthly salary is Rs. 50,000/- per month. The details of salary from November, 2020 till April, 2021 has been given in the affidavit filed by the respondent-wife.
The contention of the learned counsel for the appellant is that since the respondent-wife is earning, she is not entitled for maintenance.
We may record that the interim maintenance under Section 24 of the Hindu Marriage Act is granted to the respondent-wife during the pendency of the proceeding under the Hindu Marriage Act, so that she may live up to the status of her husband and be not left out because of an unsuccessful marriage. On comparison of income of both, only Rs. 10,000/- per month has been awarded to the respondent-wife with effect from the date of the application, i.e. 2.12.2021. Apart from the interim maintenance, Rs. 5000/- in lump sum is awarded towards cost of the proceeding and Rs. 1000/- towards travelling allowances etc. on each date fixed. The proceedings in which, the interim maintenance has been awarded to the respondent-wife has been drawn by the appellant husband under Section 13 of the Hindu Marriage Act.
The question for consideration is whether the earning wife can claim maintenance from her husband. The issue is no longer res integra. The Courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband. In a proceeding for maintenance under the Code of Criminal Procedure, this issue came up for consideration before the Apex Court in the year 1975 in Shri Bhagwan Dutt vs Smt. Kamla Devi And Another reported in 1975 (2) SCC 386. It was observed that the object of the provisions of maintenance is to prevent vagrancy and destitution. What is required that the wife should be in a position to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The expression "capable to maintain herself" does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 Cr.P.C. Similar question was answered by the Apex Court in Chaturbhuj vs Sita Bai reported in 2008 (2) SCC 316 wherein it was held that whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on record. Where the personal income of the wife is insufficient she can claim maintenance under Section 125 Cr.P.C. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband.
On the issue of criteria for determining quantum of maintenance, the Apex Court in the case of Rajnish Vs Neha and another reported in 2021 (2) SCC 324 has observed that the object of granting interim alimony is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded. One of the factors which would weigh with the Court amongst other as narrated in paragraph No.78 of the said decision is whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home. It was held that merely because the wife is capable of earning or is actually employed could not be a ground to reject the claim for maintenance. The Court has to determine whether the income of the wife is sufficient to enable her to maintain herself, in accordance with the lifestyle of her husband in the matrimonial home. Sustenance does not mean, and cannot be allowed to mean mere survival.
The language in Section 24 of the Hindu Marriage Act also explains the said aspect where it says that the wife or the husband (any of the spouses) who has no independent income sufficient for her or his support, can be awarded maintenance and while fixing the monthly sum during the proceeding, the Court will have record to the income of both the parties to arrive at a reasonable amount to award as maintenance.
In light of the above legal position, the contention of the learned counsel for the appellant that since the respondent wife has her own earning, her claim for maintenance was liable to be rejected out rightly, is unsustainable.
From a perusal of the judgement of the family court, it is evident that the family court after due consideration to the income of the applicant wife and the income of the respondent husband came to the conclusion that in order to maintain the same standard of living by the applicant wife, whose income is much less than her husband, she is entitled to maintenance of Rs.10,000/- per month so that she may have sufficient independent income for her support. The amount of Rs.10,000/- fixed by the family court on consideration of the respective income of both the spouses, cannot be said to be unreasonable.
As regards the expenses of the proceeding, since the divorce proceedings has been instituted by the husband at Jhansi, the respondent wife who is posted at Lucknow, has to travel on each date fixed from Lucknow to Jhansi, Rs.1000/- as traveling expenditure granted to her for each date of her appearance before the family court cannot be said to be excessive or illegal. Rs.5000/- in lump sum paid towards the cost of the proceeding is clearly justified in the present scenario where the wife has to incur expenditure in the proceedings drawn by the husband.
For the aforesaid, we do not find any error in the decision of the family court.
The appeal is dismissed, accordingly.
Order Date :- 4.7.2022 Brijesh/Himanshu