The Bombay High Court has held Wife is entitled to maintenance from Husband even if she carries on the business and earn some income out of the said business while disposing of the application challenging the quantum of maintenance granted by the family judge.
The High Court said, “in this era of inflationary economy, where the prices of commodities and services are increasing day by day, the income from the divorcee-wife business of beauty parlour, which has an element of seasonality, may not be sufficient to support the her livelihood and afford her to maintain the same standard of living to which she was accustomed to when she was resigning with her husband before the marital tie was situated by the decree of divorce by mutual consent”.
A single-judge bench of Justice N.J. Jamadar, passed the order on the revision application filed by husband against the judgment of the Family Court wherein the learned judge had granted payment of Rs 15,000/- per month as maintenance to wife from the date of application and amount of Rs 7,000/- as cost of litigation under section 125 of the Code of Criminal Procedure 1973 (“the Code”).
“For the sake of convenience and clarity, the parties are hereinafter referred to in the capacity in which they were arraigned before the learned Judge, Family Court,” said the High Court.
Brief facts are that the marriage of the Applicant/wife was solemnized with the Respondent/ husband on 12th November, 1997 in accordance with Hindu religious rites and ceremonies. The Applicant claimed, since inception of marital life the Respondent treated the Applicant with extreme cruelty. The Applicant was subjected to harassment to coerce her to meet unlawful demands.
In order to avoid harassment at the hands of the Respondent the Applicant signed the documents for presenting a Petition for obtaining divorce by mutual consent as the Respondent had assured the Applicant that he would continue to maintain the marital relationship with her despite a paper decree of divorce.
Accordingly, a decree of divorce by mutual consent was obtained on 25th October, 2007. Despite, the decree of dissolution of marriage, the Respondent continued to visit the Applicant at her apartment at Singhgad road and had marital relations as well. Despite having sumptuous income the Respondent refused and neglected to provide for the necessities of life of the Applicant. Hence, the Applicant was constrained to prefer the application for award of maintenance at the rate of Rs.50,000/- per month, under section 125 of the Code.
Later, the Applicant had become financially independent as she was successfully running the beauty parlor business. The Applicant, thus, agreed not to claim any maintenance including Streedhan. The decree of divorce was passed on the strength of the free volition of the parties.
The learned family Judge was of the view that the fact that the Applicant had given up her claim for maintenance, when the decree for divorce by mutual consent was passed, does not detract materially from her claim as such an agreement not to claim maintenance or waive the right of maintenance was opposed to public policy. The Applicant being a wife, despite being a divorcee, within the meaning of Explanation (b) to section 125(1) of the Code, the agreement to reside separately from the Respondent does not disentitle her from claiming maintenance, held the learned family Judge.
Being aggrieved by and dissatisfied with, the aforesaid reasons and findings the Respondent-husband has invoked the revisional jurisdiction of the High Court.
The High Court said that “there is no material on record to indicate at any point of time till the filing of the instant Petition for award of maintenance the Applicant had ever raised any grievance about the decree of divorce having been obtained by fraud. Even if the case of the Applicant is taken at par and it is assumed that the Respondent continued to visit her upto September, 2012, the inaction on the part of the Applicant from the year 2012 to the year 2016, in which the Petition for maintenance came to be filed, is rather inexplicable”.
The learned counsel for the Respondent-husband in the aforesaid setting of the matter urged that the learned Judge, Family Court committed a manifest error in arriving at a finding that the Respondent had refused or neglected to maintain the Applicant and that the Applicant was unable to maintain herself. Amplifying the submission, the learned counsel would urge that the Applicant having voluntarily relinquished her right of maintenance when the decree of divorce by mutual consent was passed on 25th October, 2007, was not legally entitled to turn around and seek maintenance from the Respondent.
“The fact that the Applicant resides separately from the Respondent in pursuance of the decree of divorce, even if taken at par, thus does not disentitle the Applicant, being a divorced wife, from claiming maintenance, urged the learned counsel for the Applicant. The agreement not to claim maintenance which is in teeth of the statutory provision, the object of which is to prevent vagrancy and destitution, does not operate as a bar to claim maintenance. Such an agreement, being opposed to the public policy, does not override the statutory ameliorative provisions”, urged the learned counsel for the Applicant.
Therefore, the High Court observed that application is conspicuously silent about the fact that the Applicant used to run the business of Kalyani Beauty Parlour. Assertions are made in the application that the Applicant is jobless, she has no independent source of income and the father of the Applicant has been supporting her financially.
“In the totality of the circumstances and upon consideration of the relevant factors including the income of the Respondent, the number of dependents upon the Respondent, the reasonable wants of the Applicant, in my considered view a sum of Rs. 12,000/- per month would be a reasonable financial support to augment the income of the Applicant”, said Justice N.J. Jamadar.
-India Legal Bureau