High Court of Delhi

Niharika Yadav Vs. Manish Kumar Yadav

MANU/DE/4334/2019

18.12.2019

Family

Merely because the wife is capable of earning is not a sufficient reason to deny her the maintenance

The present revision petition assails the order passed by Family Court in Complaint Case. Vide the aforesaid order passed in the petition filed under Section 125 of Code of Criminal Procedure, 1973 (CrPC) on behalf of the Petitioner/wife for grant of interim maintenance, the Family Court dismissed the same on account of the fact that, the Petitioner was capable of maintaining herself. It was also held that, Petitioner was getting maintenance of Rs. 10,000 per month in an application under Section 24 of Hindu Marriage Act, 1955 (HMA) which was offered voluntarily by the Respondent and that the petitioner cannot get maintenance in two different proceedings simultaneously for the same period.

The issue whether the Petitioner/wife is to be denied the maintenance only on account of the fact that she was capable of earning came before present Court in Arun Vats vs. Pallavi Sharma, wherein while relying on decision rendered in the case of Shalija v. Khobbana, it was held that 'capable of earning' and 'actual earning' are two different requirements. Merely because the wife is capable of earning is not a sufficient reason to deny her the maintenance.

As per Section 20(d) of the Domestic Violence Act, 2005 (DV Act), the maintenance provided under the Act shall be in addition to an order of maintenance under Section 125 of the CrPC or any other law for the time being in force. Similarly, Section 26 of the DV Act provides that, any relief available under Sections 18 to 22 can also be sought in any proceeding before Civil Court or Family Court or a Criminal Court. A conjoint reading of the above sections shows that, grant of maintenance pendente lite under Section 24 of HMA does not bar the award of maintenance under any other proceedings subject to the condition that the grant of maintenance in one shall be kept in mind while awarding the maintenance in the other.

Accordingly, impugned order passed by the Family Court is set aside and the matter is remanded back for fresh consideration in the light of the fact that, the amount of interim maintenance awarded under Section 24 of HMA was voluntarily and not judicially determined. The Family Court shall be at liberty to grant adjustment of the maintenance awarded under Section 24 of HMA while considering the application under Section 125 of CrPC. Consequently, the present criminal revision petition is allowed.

Relevant

Shailja and Ors. vs. Khobbanna MANU/SC/0537/2017

Tags : Interim maintenance Award Entitlement

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