Legal Reference Library

The Supreme Court, in Kalyan Dey Chowdhury vs Rita Dey Chowdhury, has upheld a Calcutta High Court observation, which by relying on a judgment of the apex court, had held that 25 per cent of the husband’s net salary would be just and proper to be awarded as maintenance to the wife. The high court, in the instant case, observing that the net salary of the husband was Rs. 95,000 per month, enhanced the maintenance amount to Rs. 23,000 per month. A bench comprising Justice R Banumathi and Justice Mohan M Shantanagoudar observed that the amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance and it is always dependent on the factual situation of the case and the court would be justified in moulding the claim for maintenance passed on various factors. The court also upheld the observation made by the high court, referring to Dr Kulbhushan Kumar vs Raj Kumari and Anr, wherein it held that 25 per...

Merely because the wife is ‘capable of earning’, it is not a reason to reduce the maintenance awarded to her, the Supreme Court has held in a recent pronouncement in Shailja vs. Khobbanna. A bench comprising Justice Madan B Lokur and Justice Prafulla C Pant said whether the wife is capable of earning or whether she is actually earning are two different requirements and the high court went wrong in reducing the compensation awarded to her by the family court on the sole basis that she was ‘capable of earning’. Interestingly, the high court had rejected the contention of the husband that his wife was working as a lecturer and is earning. But observing that she is ‘capable of earning’, the high court reduced the maintenance amount of Rs.12,000. The court also observed that the income of the husband, is more than Rs.80,000 per month and he is a senior lecturer in a college, and also the owner of 26 acres of irrigated land. Article referred: http://www.livelaw.in/wifes-capability-earn-no-...

The Rajasthan High Court in Geeta Singh vs. State of Rajasthan and Anr dismissed the DV application of Geeta Singh, filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 claiming interim monetary relief to her daughter Geetanjali. One of the reliefs sought is that respondent may be directed to pay 700 pounds per month as living expenditure as she was pursuing higher studies at Cardiff University, England. Geetanjali’s father contended he had borne all the school and college education expenses for his daughter and even took care of educational and all other expenses for her higher studies at Nottingham, England. The question involved was whether the unmarried daughter, who has already completed her post graduation from a reputed university in India like Delhi University and who also pursued her further studies at Nottingham, England, in 2009, is an aggrieved person within the meaning of the Act, and if yes, whether she can claim interim monetary relief as he...

The Kerala High Court in Mavila Sathi vs. State of Kerala and Ors has held that the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (the ‘Act’), cannot be allowed to be used as a tool in property disputes. Petitioner Mavila Sathi had filed the writ petition against the direction issued by the Maintenance Tribunal, according to which she had to reconvey 10 cents of property given to her by her mother Devaki Amma after having assigned 23 cents previously, along with the direction of paying a monthly maintenance of Rs 500 per month. However, Mavila’s brother Govindan took away their mother to stay with him, as she had allegedly ousted her from her house and had refused to look after her. Mavila was assigned 23 cents of property retaining Devaki’s right to take the benefits and right of residence in the tharawad building situated in the property, according to her brother’s contentions. Govindan alleged that though the petitioner was assigned 41 cents of property on conditi...

 A professionally qualified woman should be able to take care of herself, the Delhi high court has said, denying maintenance demanded by a chartered accountant from her estranged husband. "The appellant/wife, who is a qualified chartered accountant and has been in the profession since 2003, need not be granted interim maintenance under Section 24 of the Hindu Marriage Act," a bench of Justices Pradeep Nandrajog and Pratibha Rani observed while rejecting her plea. The wife had appealed against a trial court order that awarded her Rs 22,900 a month towards maintenance of her two children but declined to award an interim maintenance to her, pointing out that she was a chartered accountant with sufficient means to maintain herself. According to the woman's petition, the duo had got married in 2005 in Delhi. The estranged husband, an electrical engineer, runs his own business. He filed for divorce owing to "differences". The wife had sought an interim maintenance...

Observing that the ‘Protection of Women from Domestic Violence (PWDV) Act does not override personal laws completely’, a Delhi court has reduced the interim relief granted to a Muslim widow from Rs.30,000 to 15,000 per month. Additional Sessions Judge Sanjay Bansal reduced the relief amount saying payment of the previous amount would amount to payment of maintenance, which is not permissible under the law. The widow had sought interim monetary relief from her father-in-law and brother-in-law ( jeth ) alleging that they tortured her and her three children physically and mentally, besides taking over her husband’s shop after his death. A Metropolitan Magistrate had earlier asked her in-laws to pay Rs. 30,000 per month to her as expenses for her children and herself. The in-laws, however, challenged the order before the Sessions Judge. “It is well settled that under Muslim Law there is no obligation upon the father-in-law to maintain the widow and children of his deceased son. The p...

In a significant ruling, the Madras High Court Bench here has held that fathers are liable to pay maintenance to children who had attained majority even if the latter were not suffering from any mental or physical abnormalities and yet do not have sufficient financial capacity to maintain themselves. “No doubt, Section 125 of the Code of Criminal Procedure is not happily worded since it has prescribed certain riders for a daughter or son who has attained majority to claim maintenance from their father. The children must establish that they are under physical disability or they are suffering out of mental injury. “However, there may be cases where a daughter or a son, even after having attained majority, may not have sufficient financial capacity to maintain themselves and they continue to need the support of their father... These are real-life situations. In such cases, courts cannot simply blame those who had drafted the law. “A court must interpret the law. It s...

The Punjab and Haryana High Court has made it clear that an estranged wife capable of earning is also entitled to maintenance. The ruling came in a case where the husband claimed the wife was not entitled to maintenance as she was capable of earning. Justice Daya Chaudhary ruled that it was neither stated in the reply nor argued on the husband’s behalf that the respondent wife was earning. It was simply stated that the respondent wife possessed professional qualifications and could earn her livelihood. As such, directions by a Chief Judicial Magistrate to the husband for paying interim maintenance could not be faulted with. The petitioner husband had earlier moved the court against the grant of maintenance to the respondent wife primarily on the ground that it was on the higher side and the respondent wife being professionally qualified was in a position to earn her livelihood. Justice Chaudhary referred to Section 125 of the CrPC on maintenance of wives, children and parents, which...

The Supreme Court in Prakash Nagardas Dubal Shaha vs. Sou Meena Prakash Dubal Shahhas has held that unsuccessful divorce proceedings cannot adversely affect the maintainability of application filed under the Domestic Violence Act. Division Bench comprising of Justices Dipak Misra and Shiva Kirti Singh made this observation in an appeal filed by the Husband against the order of High Court which had held that his wife was entitled to seek maintenance from him. By way of maintenance the Magistrate had fixed Rs. 5,000/- per month for the wife, same amount for the daughter and Rs. 4,000/- for the minor son, which was later upheld by the High Court. The order of Sessions Court reversing the findings of the Magistrate on the ground that the wife had initiated divorce proceedings at an earlier point of time, the Protection of Women from Domestic Violence Act which came into force only later in 2005 was wrongly invoked by the wife, was also set aside by the High Court. Supreme Court said that i...

Bombay High Court: While deciding the appeal preferred against the judgement of the Sessions Court, which denied the maintenance granted by the Judicial Magistrate First Class, Karad,  M.S. Sonak J. modified the order of the Judicial Magistrate First Class and directed the respondent to pay  maintenance on monthly basis to the applicant with effect from 1 January 2015 thereby setting aside the order of the Sessions Court. In the present case Mr. Sawant, learned counsel for the petitioner contended that the evidence on record does establish that the applicant was harassed and therefore compelled to live away from the respondent and the Additional Sessions Judge exceeded the bounds of revisional jurisdiction in interfering with the well reasoned decision of the Judicial Magistrate First Class. On the contrary counsel for the respondent Ms. Bhosale submitted that the Additional Sessions Judge, upon proper appreciation of the material on record has rightly held that the Applicant...

Bombay High Court: While deciding the appeal preferred against the judgement of the Sessions Court, which denied the maintenance granted by the Judicial Magistrate First Class, Karad,  M.S. Sonak J. modified the order of the Judicial Magistrate First Class and directed the respondent to pay  maintenance on monthly basis to the applicant with effect from 1 January 2015 thereby setting aside the order of the Sessions Court. In the present case Mr. Sawant, learned counsel for the petitioner contended that the evidence on record does establish that the applicant was harassed and therefore compelled to live away from the respondent and the Additional Sessions Judge exceeded the bounds of revisional jurisdiction in interfering with the well reasoned decision of the Judicial Magistrate First Class. On the contrary counsel for the respondent Ms. Bhosale submitted that the Additional Sessions Judge, upon proper appreciation of the material on record has rightly held that the Applicant...

The Bombay High Court, while quashing the order of the sessions court refusing maintenance to a second wife by the husband, held that it was not required for the woman to prove her marriage through documentary evidence, if the couple lived together. The woman had challenged a 2005 order of the Kolhapur sessions court, which had, while allowing the maintenance of Rs500 to the daughter, turned down that of the woman on the grounds that the husband was already married and his spouse was alive. The husband argued before the High Court that maintenance under section 125 of the CrPC can only be granted to the legally married wife. This ground was strongly opposed by the woman, saying that it was a summary remedy and the same was not intended to affect the civic rights of the party. After going through several Supreme and High Court judgments, the court held, "In matters of this nature, it is sufficient if the claimant prima facie satisfies the court that the claimant and responden...

The right to maintenance of a Hindu widow is not a "mere formality" but a spiritual and moral right that can be judicially enforced upon by claiming "absolute right" on the property given to her for sustaining herself, the Supreme Court has ruled. A bench, headed by Justice M Y Eqbal, while upholding a Andhra Pradesh high court verdict in favour of a widow who had transferred the property willed to her by her husband for her lifetime to a relative, said it was the woman's "absolute right" and she was free to bequeath the property. "It is well settled that under the Hindu Law, the husband has got a personal obligation to maintain his wife and if he is possessed of properties, then his wife is entitled to a right to be maintained out of such properties. "It is equally well settled that the claim of Hindu widow to be maintained is not a mere formality which is to be exercised as a matter of concession, grace or gratis but is a valuable,...

Looking at the burden on the husband to provide maintenance to his wife even in cases where the wife is well educated and capable enough to earn for her living, a bench of S.A. Morey J gave a landmark judgment in favour of husband to curb the misuse of the provision of maintenance, and held that a wife who is well qualified and is capable to earn cannot sit idle and claim maintenance from her husband. In the instant case, petitioner-wife moved an application before this Court for grant of maintenance from the respondent-husband during the pendency of petition under Section 125 CrPC. The petitioner alleged that she was forced to live separately as the respondent and his family members ill-treated and harassed her for bringing less dowry. The petitioner contended that the respondent is a successful businessman and is doing business not only in India but also in Dubai and other countries, and that his total income per month is more than Rs. 15 lakhs, and therefore considering the status ...