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Ch 11. Judgments about wife’s eligibility for maintenance and how much amount awarded

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Ch 11. Judgments about wife's eligibility for maintenance and how much amount awarded

How decided if wife unable to maintain herself?

Wife unable to maintain herself decided based on material placed on record

Use this judgment when several facts in your case are similar to following\

  1. Wife has filed CrPC 125 case and demands maintenance

  2. You want to know how court will assess whether she is eligible for maintenance under CrPC 125

  3. How court will determine her required standard of living for which maintenance asked for

Note: Amount of maintenance has to be consistent with the standard of living wife was used to at the place of her husband. This means having a living standard of luxury with wife can go against husbands should she later decide to file maintenance and demand same standard of living.

Chaturbhuj vs Sita Bai - SC 2007

Important parts of judgment\

8. In an illustrative case where wife was surviving by begging, would not amount to her ability to maintain herself. It can also be not said that the wife has been capable of earning but she was not making an effort to earn. 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. In Bhagwan v. Kamla Devi (AIR 1975 SC 83) it was observed that the wife should be in a position to maintain standard of living which is neither luxurious nor penurious but what is consistent with status of a family. The expression "unable 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.

How maintenance amount is to be determined?

Income of woman from property must be taken into account - SC judgment

Use this judgment when several facts in your case are similar to following\

  1. Wife is residing in husband's house

  2. Wife is receiving income from any asset which belongs to husband

  3. Wife has any land/plot/residential/commercial property in her name whether own or inherited

SHAIL KUMARI DEVI vs KRISHAN BHAGWAN PATHAK - SC 2008

Important parts of judgment\

49. But even on merits, the Family court was not right in fixing the amount
of maintenance. The learned counsel for the respondent took us to the
evidence adduced by the parties. From the material on record, it is clear
that the appellant No.1-wife is residing in the house belonging to the
respondent-husband and such finding has been recorded even by the Family
Court. It is also in evidence that she was receiving income from the land in
her possession which belonged to her husband-respondent herein. It is true
that the respondent could not state as to the actual amount received by the
wife from the cultivation of the land. But it is also one of the
considerations which is relevant and material while fixing the amount of
maintenance. Moreover, appellant No.1 has inherited some land from her
father.

Delhi HC judgment in CrPC 125 maintenance, rejects one-third rule, both have income

Use this judgment when several facts in your case are similar to following\

  1. Both husband and wife have income

  2. Child(ren) also there

LALIT BHOLA vs NIDHI BHOLA & ANR - Delhi HC 2013

Important parts of judgment\

11. Some documents were filed to prove that certain FDs were left by mother of the husband, but it cannot be the exclusive property of the husband. Admittedly, the mother was survived by her husband, one son and four daughters. Thus, the income of the husband at the most could be a few thousand from interest on FDs(pertaining to his share) in addition to the salary of 24,384/- per month. The rental income of the father cannot be taken into consideration for award of maintenance to the wife. Father has got other responsibilities, including four daughters who are given customary gifts even after their marriage. The maintenance of 12,500/- (9,500/- for the wife and 3,000/- for the child) is approximately 50% of the husband's income from the salary which seems to be just and reasonable as it is only an interim maintenance. The exact income of the husband from the FDs shall be the subject matter of the trial.

12. The interim maintenance awarded can neither be said to be excessive nor on the lower side. Broadly, it appears to be just and reasonable.

Husband's gross salary 20K, net 12K, wife's maintenance enhanced from 2.5K to 4K, zero amount to 2 major daughters

Use this judgment when several facts in your case are similar to following\

  1. You want to know how much amount typically may be awarded for maintenance for middle class income levels of husband

  2. Daughter(s) above the age of 18 has filed maintenance

Amod Kumar Srivastava vs State Of U.P. And Ors - Allahabad HC 2008

Important parts of judgment\

6. The Act, therefore, makes it clear that any child who has attained majority is not automatically entitled to claim maintenance even if he is unable to maintain himself as was the case under the old Code. The inability to maintain himself should arise out of physical or mental abnormality or injury.

13. Keeping in view the law laid down in above mentioned cases, the impugned judgement granting maintenance allowance to Km. Bhavya and Km. Divya even after their attaining majority cannot be sustained, because as stated earlier also, both these daughters had attained majority much prior to the date of passing the impugned order and since their inability to maintain themselves cannot be attributed to any physical or mental abnormality or injury within the meaning of Section 125(1) (c) Cr.P.C., hence, they had become dis-entitled to get maintenance allowance from their father after attaining majority under the provisions of Section 125 Cr.P.C. If they want to claim maintenance allowance from their father even after attaining majority, then they can approach Civil Court for this purpose.

...

From the evidence adduced in Family Court Varanasi in the proceeding under Section 125 Cr.P.C., this fact is borne out that gross salary of Sri Amod Kumar Srivastava is more than Rs. 20,000/- per month and he is getting Rs. 12,000/- per month as net salary after deductions in G.P. Fund etc. The salary of Sri Amod Kumar Srivastava will be increasing from time to time. He is living alone and has no liability to maintain any other person. The prices of all the essential commodities are increasing day by day. Sri Amod Kumar Srivastava is a grade-I officer in New India Assurance Co. Ltd. He is income tax payee. Therefore, having regard to the social status of the parties and monthly income of Sri Amod Kumar Srivastava, his wife Smt. Neelam Srivastava also is entitled to live with dignity and comfort according to the status of her husband. Rs. 2000/- per month was granted as maintenance to both the daughters vide impugned judgment and that amount also was being paid to their mother Smt. Neelam Srivastava with their consent. In view of the findings recorded herein-above, this amount will not be paid now to the daughters. Therefore, keeping all these facts in view, the maintenance allowance granted to Smt. Neelam Srivastava vide impugned judgment should be enhanced and it would be just and proper, if Rs. 4000/- per month are granted to her as maintenance allowance.

Judgments if adultery of wife alleged

Affidavit by another man that wife stays with him not enough to prove wife's adultery and denial of maintenance

Use this judgment when several facts in your case are similar to following\

  1. If you given allegations in your objections about wife's affair or adultery, and want to deny maintenance on that ground as per CrPC 125(4)

  2. You want to know whether such allegations are helpful in denying maintenance, and what standard of evidence required to prove adultery

Note: The import of this judgment is that courts may not take mere allegation of adultery very seriously to deny maintenance under CrPC 125, given by the fact that court raised the question if wife staying with another man could automatically mean that she having adulterous relation with that man. Also it is worrying why the court had to make an comment about woman living in adultery could be result of husband's adultery, when such facts were not present in this case.

Arun Kumar vs Meenu Kumar - Delhi HC 2007

Important parts of judgment\

13. Another aspect which has to be seen is that the contents of the affidavit are untested; though the deponent mentioned that the complainant stayed with him, the next assumption that such a residence amounted to adultery, would be drastic. In any form of proceeding, to conclude adultery, where civil consequences spelt out under Section 125(4) are to be inferred, the party likely to be affected has to be given reasonable and fair opportunity to meet and rebut the charge. Though Section 125 Cr.P.C. is in the nature of a welfare measure, and perhaps falls within the description of "special provision" under Article 15(3) of the Constitution, the exception under Section 125(4), loaded as it is in gender unequal terms, against the woman, has to be made recourse to with care and circumspection. The enacting part of Section 125, which entitles a woman to maintenance, makes makes no distinction whether the cause for her approaching the Court is adultery or infidelity of the husband; yet, the possible effect, viz estrangement and the situation of her living in adultery, is sought to ground a denial of that welfare measure. Without entering into the logic of this enforcement of morality through the legal process - which has to receive a wider debate, what can be said is that the Court should loath to rush into conclusions or a priori assumptions, since Section 125(4) enacts an exception. It should be satisfied about the soundness of such a charge, and cannot be content to elevate allegations into findings.

Judgments on maintenance for children and wife to share too

Wife has income but she wants you to bear all expenses of children through her maintenance applications

Use this judgment when several facts in your case are similar to following\

  1. Wife has filed application for maintenance of herself/children/both

  2. Wife is working and some proof of her income is on record

  3. You want to reduce maintenance expenses by letting wife share some expenses of children

Note: the judgment may be based on Hindu personal laws, but the concept of sharing expenses of children by both earning parents does not go away if maintenance application filed under any other act

Padmja Sharma vs Ratan Lal Sharma - SC 2000

Important parts of judgment\

In the present case both the parents are employed. If we refer to the first application filed under Section 26 of the Act by the wife she mentions that she is getting a salary of Rs. 3,100 per month and husband is getting a salary of Rs. 5,850 per month. She is, therefore, also obliged to contribute in the maintenance of the children. Salaries of both the parents have since increased with the course of time. We believe that in the same proportion, may be perhaps in the case of an employee of Reserve Bank of India at somewhat higher rate. If we take approximate salary of husband is twice as much as that of the wife, they are bound to contribute for maintenance of their children in that proportion. Family Court has already fixed a sum of Rs.. 250 per month for each of the child under Section 125 of the Code. That amount we need not touch.

Considering the overall picture in the present case we are of the view that a sum of Rs. 3,000 per month for each of the child would be sufficient to maintain him, which shall be borne by both the parents in the proportion of 2:1. We, therefore, direct that respondent shall pay a sum of Rs. 2,000 per month for each of the two children aforementioned from October 4, 1997, the date of the order of the Family Court.

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