Wife is Entitled to Maintenance even if she earns or runs a business: Bombay High Court

The Bombay High Court in June, 2020 has held that a wife is entitled to maintenance from her husband even if she carries some business and earns some money out of it. In this case the husband was asked to give his wife maintenance of Rs. 15000/- (Rupees Fifteen Thousand Only) per month and Rs. 7000/- (Rupees Seven Thousand Only) as a litigation cost under section 125 of the Code of Criminal Procedure 1973.. The order passed by the judge of the Family court was thereby challenged in the High Court. 

The High Court said that, “ 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”.

Brief Facts

The marriage of the Applicant i.e. the Wife and the Respondent i.e. the Husband was solemnized on 12th November, 1997 according to the Hindu religious rites and ceremonies. The applicant claimed that from the very beginning of her marriage the respondent used to abuse her. The applicant was subjected to harassment to coerce her to meet his unlawful demands.

Upon false promise by the respondent that he will continue the marriage and will not abuse her furter he forced her  to sign the divorce papers, and just to avoid harassment at the hands of respondent the applicant signed the said divorce papers. 

Accordingly a divorce by mutual consent was obtained by the respondent on 25th October, 2007. Even after the divorce decree the respondent continued to visit the apartment of the applicant and maintain marital relationship with the applicant. Accordingly the applicant demanded a certain amount of money for standard living per month from the respondent but he refused to pay any amount or money to the applicant despite having sumptuous income. Hence the applicant was constrained to file maintenance application under section 125 of the code and demanded Rs. 50,000/- (Rupees Fifty Thousand Only) from the respondent.

Later, the applicant became financially independent as she started running a beauty parlour business. The applicant therefore agreed not to claim any maintenance including he streedhan from the respondent. 

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The learned family Judge was of the view that the fact that the Applicant had given up her claim for conservation, when the decree for divorce by collective concurrence was passed, doesn't abstract materially from her claim as such an agreement not to claim conservation or waive the right of conservation was opposed to public policy. The Applicant being a woman, despite being a divorcee, within the meaning of Explanation (b) to section 125 (1) of the Code, the agreement to live independently from the Respondent doesn't disentitle her from claiming conservation, held the learned family Judge.

Being displeased by and displeased with, the forenamed reasons and findings the Respondent- hubby has invoked the revisional governance of the High Court.

The High Court said that “ there is no material on record to indicate at any point of time till the form of the instant Solicitation for award of conservation the Applicant had ever raised any grievance about the decree of divorce having been attained by fraud. Indeed if the case of the Applicant is taken at par and it's assumed that the Respondent continued to visit her upto September, 2012, the inactivity on the part of the Applicant from the time 2012 to the time 2016, in which the Solicitation for conservation came to be filed, is rather unexplainable”.

The learned counsel for the Respondent- hubby in the forenamed setting of the matter prompted 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 unfit to maintain herself. Amplifying the submission, the learned counsel would prompt that the Applicant having freely relinquished her right of conservation when the decree of divorce by collective concurrence was passed on 25th October, 2007, wasn't fairly entitled to turn around and seek conservation from the Respondent.

“ The fact that the Applicant resides independently from the Respondent in performance of the decree of divorce, indeed if taken at par, therefore doesn't disentitle the Applicant, being a separated woman, from claiming conservation, prompted the learned counsel for the Applicant. The agreement not to claim conservation which is in teeth of the statutory provision, the object of which is to help megrim and pauperism, doesn't operate as a bar to claim conservation. Such an agreement, being opposed to the public policy, doesn't stamp the statutory ameliorative vittles”, prompted the learned counsel for the Applicant.

Thus, the High Court observed that the operation is conspicuously silent about the fact that the Applicant used to run the business of Kalyani Beauty Parlour. Assertions are made in the operation that the Applicant is unemployed, she has no independent source of income and the father of the Applicant has been supporting her financially.

“ In the summation of the circumstances and upon consideration of the applicable 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 ofRs./-per month would be a reasonable fiscal support to compound the income of the Applicant”, said JusticeN.J. Jamadar.