Tag Archives: Maintenance of Child

‘Capable of Earning’ and ‘Actual Earning’ – Difference Between

In Arun Vats v. Pallavi Sharma, reported as 2019 SCC OnLine Del 11817 and Niharika Yadav v. Manish Kumar Yadav in Crl. Rev. Petition 755/201, decided on 18.12.2019 where, while relying upon the decision rendered in the case of Shalija v. Khobbana reported as (2018) 12 SCC 199, it was held that ‘capable of earning’ and ‘actual earning’ are entirely two different things. Merely because the wife is ‘capable of earning’ is not a sufficient reason to deny her the maintenance. It was also stated that the petitioner has qualified CTET test and is now more qualified to earn. In Swapan Kumar Banerjee v. The State of West Bengal, reported as 2019 SCC OnLine SC 1263, the Hon’ble Supreme Court observed as follows:“The next issue raised was that the wife being a qualified architect from a reputed university i.e. Jadavpur University, Calcutta would be presumed to have sufficient income. It is pertinent to mention that as far as the husband is concerned, his income through taxable returns has been brought on record which shows that he was earning a substantial amount of Rs. 13,16,585/- per year and on that basis Rs. 10,000/- per month has been awarded as monthly maintenance to the wife. No evidence has been led to show what is the income of the wife or where the wife is working. It was for the husband to lead such evidence. In the absence of any such evidence no presumption can be raised that the wife is earning sufficient amount to support herself.”  Anita v. Amit, Crl. Rev. P. 515/2018, decided on 24.02.2020

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Section 125 CrPC – Is a Measure of Social Justice

It is pertinent to mention that Section 125 CrPC is a measure of social justice and it is intended to protect the wife and her children who has no means to maintain herself. It has been held in Bhagwandutt v. Kamla Devi, AIR 1975 SC 83, that while assessing the amount of maintenance under Section 125 CrPC, the Magistrate is required to consider the standard of living and background of the wife alongwith the status of her family. The needs and requirements of the wife should be in consonance with her own income, if any, and the earning of the husband and his commitment as husband. It is also pertinent to mention that Section 125 CrPC is to prevent destitution in wife who may have been even divorced. The husband is under obligation to give maintenance to the divorced wife who by herself is not able to maintain herself. It is husband’s moral obligation which he owes to the society in respect of his wife and children, so that they are not left beggared and to prevent destitution as without financial support she may be driven to a life of vagrancy, immorality and crime for her subsistence. Major Ankur Gupta v. State of U.P., 2020 (138) ALR 52.

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Permanent Alimony – After Passing of Divorce Decree

In the event permanent alimony has not been granted probably for the reason that no such application was moved and pressed for, the same can be applied even after passing of the decree. Section 25 of the Hindu Marriage Act itself envisages that the wife can initiate proceedings for grant of permanent alimony even after the decree of divorce. Therefore, the court does not become functus officio with the passing of the decree and continues to have jurisdiction to award alimony thereafter. Smt. Poonam Sharma v. Vishnu Kumar, 2018 (130) ALR 490.


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