By application (Exh-14), the petitioner submitted that she was
unable to maintain herself since the couple has separated in the year 2016. She has been residing with her parents. She is unable to work because of the psychological pressure and harassment meted out to her by the respondent.
As against this, the respondent is a Medical Officer earning around Rs.60,000/- to Rs.65,000/- salary. No-one is dependent on him and therefore, she claimed interim maintenance at the rate of Rs.15,000/- per month and also claimed Rs.200/- for rickshaw fare for attending the Court for each date and Rs.25,000/- for engaging Advocate.
5. The respondent-husband opposed the application by his say
(Exh-19). He contended that the petitioner is also a doctor by profession and is also a Dermatologist. She was also earning Rs.50,000/- to Rs.60,000/- per month. She has continued her profession in a flat owned by her father. He denied that she was suffering from any psychological pressure and was unable to pursue her profession. He denied that he earns Rs.60,000/- to
Rs.65,000/- per month and prayed to reject the application.
6. After hearing both the sides, the learned Judge of the Family
Court rejected the application (Exh-14). Hence this petition.
7. Mr. Warma, learned Advocate, by referring to the recent
judgment of the Supreme Court in the case of Rajnesh Vs. Neha and Anr.;
Criminal Appeal No.730 of 2020, decided on 04.11.2020, submitted that the
Supreme Court has now laid down several guidelines and directions in the
matters of grant of maintenance/alimony, including interim maintenance,
awardable under different Statutes. He would point out that assuming that
that the petitioner is a duly qualified medical practitioner, still she is entitled
to claim interim alimony as has been laid down in this decision of the
Supreme Court. Her capacity to earn her livelihood cannot come in her way
to claim alimony. As against this, the respondent is also a Medical Officer
regularly earning sumptuous salary. The learned Judge of the Family Court
has grossly erred in appreciating the law and the facts and has illegally
refused interim alimony, which order may be reversed.
8. Mr. A.M. Gholap, learned Advocate for the respondent strongly
opposed the petition. He submitted that the petitioner has not come with
clean hands and has hidden that she is pursuing medical profession. The
record was produced before the Family Court to that effect and no error is committed by the learned Judge in refusing interim alimony to her.
9. As far as right of a wife, who is capable of earning, to claim
alimony is concerned, the Supreme Court in the case of Rajnesh (supra) has
considered it in clause (c) of Part-III under the head of `Criteria for
determining quantum of maintenance’, which reads thus :-
“(c) Where wife is earning some income
The Courts have held that if the wife is earning, it
cannot operate as a bar from being awarded maintenance by the
husband. The Courts have provided guidance on this issue in the
following judgments.
In Shailaja & Anr. V Khobbanna, this Court held that
merely because the wife is capable of earning, it would not be a
sufficient ground to reduce the maintenance awarded by the
Family Court. 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.
In Sunita Kachwaha & Ors. V Anil Kachwaha, the
wife had a postgraduate degree, and was employed as a teacher
in Jabalpur. The husband raised a contention that since the wife
had sufficient income, she would not require financial assistance
from the husband. The Supreme Court repelled this contention,
and held that merely because the wife was earning some income,
it could not be a ground to reject her claim for maintenance.
The Bombay High Court in Sanjay Damodar Kale v
Kalyani Sanjay Kale while relying upon the judgment in Sunita
Kachwaha (supra), held that neither the mere potential to earn,
nor the actual earning of the wife, howsoever meagre, is
sufficient to deny the claim of maintenance.
An able-bodied husband must be presumed to be
capable of earning sufficient money to maintain his wife and
children, and cannot contend that he is not in a position to earn
sufficiently to maintain his family, as held by the Delhi High
Court in Chander Prakash Bodhraj v Shila Rani Chander
Prakaash. The onus is on the husband to establish with
necessary material that there are sufficient grounds to show that
he is unable to maintain the family, and discharge his legal
obligations for reasons beyond his control. If the husband does
not disclose the exact amount of his income, an adverse
inference may be drawn by the Court.
This Court in Shamima Farooqui v Shahid Khan
cited the judgment in Chander Prakash (supra) with approval,
and held that the obligation of the husband to provide
maintenance stands on a higher pedestal than the wife.”
10. Suffice for the purpose, therefore, to conclude that even if the
petitioner in the matter in hand is a medical practitioner and is earning something for her livelihood, it cannot be a ground to refuse alimony to her under Section 24 of the Hindu Marriage Act.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.4014 OF 2019
Arpana Vijay Manore Vs Dr. Vijay Tukaram Manore,
CORAM : MANGESH S. PATIL, J.
JUDGMENT PRONOUNCED ON : 09.12.2020
Citation: 2020 SCC OnLineBom 3925,
Read full Judgment here: Click here
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