In Rousseau Mitra Vs. Shrimati Chandana Mitra MANU/WB/0221/2003 : AIR 2004 Calcutta 61, the learned Single Judge of Calcutta High Court has held that when the husband voluntarily having incapacitated himself from earning, he cannot avoid his liability to maintain his wife and child. The learned Single Judge has held as under:
There is no fixed principle for determining the amount of maintenance pendente lite or expenses of the proceedings. The Court has to consider the status of the parties, their needs and the capacity of the husband to pay having regard to the reasonable expenses for the maintenance of the wife and the child, which he is obliged to meet under the law. The amount of maintenance pendente lite should be fixed for the wife and the child taking into consideration the cost of living index so that she does not feel handicapped. The husband was an employee of a private firm and he used to earn by undertaking private typing jobs. It is alleged by the husband that he has left his service voluntarily with effect from November 2001 and presently he is unemployed and has no income at all to pay the maintenance pendente lite or expenses of the proceedings. The husband is an able-bodied person capable of earning. The husband voluntarily incapacitated himself from earning, but he cannot avoid his liability to maintain his wife and the child.
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CMPMO No. 99/2014
Decided on: 9.5.2014
Sanjiv Dayal Mathur Vs Vandana Mathur
Coram:
Hon’ble Mr. Justice Rajiv Sharma, Judge.
This petition is instituted against the order dated
18.1.2014, rendered by learned Additional District Judge (II),
Mandi, in CMP No. 1 of 2014.
2.
Pertinent facts necessary for the adjudication of
this petition are that the petitioner/husband (hereinafter
referred to as the “petitioner” for the sake of convenience) filed
a petition under Section 13 of the Hindu Marriage Act, 1955
seeking
divorce
against
the
respondent/wife
(hereinafter
referred to as the “respondent” for the sake of convenience).
3.
The
respondent
moved
an
application
under
Section 24 of the Hindu Marriage Act for maintenance
pendente lite and expenses of proceedings.
According to the
respondent, she has no independent source of income to
maintain herself and her son. Petitioner has failed to provide
maintenance to them. She is living with her aged parents in
Delhi. Her son is studying in 7th Standard in Max Fort School,
Dwarka, New Delhi. The petitioner is an Army Officer. His
salary is around Rs.1,20,000/- per month. He is also having
rental income about Rs.50,000/- per month. He has movable
other places.
and immovable property at Greater Noida, U.P., Dehradun and
She has prayed for Rs.80,000/- per month as
charges.
The
petitioner
4.
pendente lite maintenance and Rs.50,000/- as litigation
filed
reply
to
the
application.
According to the averments contained in the reply, respondent
is getting pension of his previous husband. She is having
sufficient property. She has received cash deposits from her
previous husband. She is capable to earn her livelihood. The
petitioner has son from his first marriage, who is dependent
upon him.
5.
Learned Additional District Judge allowed the
application on 18.1.2014. He awarded a sum of Rs.10,000/-
per month as pendente lite maintenance and Rs.10,000/- as
litigation expenses. Hence, this petition.
6.
Mr. Rajiv Jiwan, learned Advocate, has vehemently
argued that the learned Additional District Judge has not taken
into consideration the well settled law the manner in which
pendente lite maintenance and litigation expenses have to be
awarded under Section 24 of the Hindu Marriage Act.
7.
The petitioner is an Army Officer of the rank of
Colonel. According to the affidavit at page 22 of the paper book,
monthly salary of the petitioner is Rs.1,27,000/-, though his
carry home salary is Rs.42,992/-. His rental income is
Rs.8,000/- per month. It is also averred in the affidavit that the
respondent is MBA (HR) and was working in a Multi National
per
month.
However,
the
Company. She is drawing salary of Rs.30,000/- to Rs.40,000/-
present
employment
of
the
application
filed
by
rt
respondent is not known to the petitioner. It has come in the
the
respondent
that
she
has
no
independent source of income. She is living with her aged
parents in Delhi. She has to maintain herself and her minor
son Varun, who is studying in 7th Standard in Max Fort School,
Dwarka. The petitioner has purchased a Honda City Car in the
month of October 2010. The petitioner has to pay maintenance
pendente lite and expenses of proceedings to the respondent.
The amount has to be determined towards maintenance
pendente lite on the basis of social status of husband and wife.
The respondent is presently not working, though she is duly
qualified. Merely that the respondent can earn her livelihood is
no ground to deny maintenance pendente lite to her. The
petitioner has sufficient means, as per the pleadings. Only a
sum of Rs.10,000/- per month has been ordered to be paid to
the respondent towards maintenance pendente lite by the
learned Additional District Judge. This amount cannot be said
to be exorbitant.
The amount awarded is reasonable.
The
respondent has to maintain herself and her minor son. Merely
that the petitioner has to look after his son from previous
marriage is no ground to deny maintenance to the respondent
and her minor son. It has also come in the pleadings that the
petitioner has movable and immovable property at Greater
Noida, U.P., Dehradun and other places. The proceedings
under Section 24 of the Hindu Marriage Act are to be decided
independently. It has come on record that the proceedings
initiated by the respondent under Section 125 Cr.P.C. have
been dismissed.
In Raghavan Vs. Saroja, 1988 (1) H.L.R. 554,
8.
the learned Single Judge of Kerala High Court has held that
Section 24 of the Act is to secure the indigent spouse some
financial assistance to prosecute the case and also for the
purpose that indigent spouse should not suffer during the
pendency of the proceedings because of his or her indigency.
The learned Single Judge has held as under:
“13.
The object and purpose of enacting Section 24 of the
Act is to secure the indigent spouse some financial
assistance to prosecute the case and also for the purpose
that the indigent spouse should not suffer during the
pendency of the proceedings because of his or her
indigency. The counsel emphatically submits before me
that
it
should
be
the
prime
duty
and
concern
of
matrimonial courts to give an expeditious decision on
applications for ancillary reliefs, like grant of interim
alimony so that the indigent spouse is not handicapped
because of paucity of funds. In the background of this
purpose, a liberal interpretation has to be given enabling
the court to pass an order on the interlocutory application
under Section 24 of the Act, even if the main petition is
dismissed.”
The learned Single Judge in Pradeep Kumar
9.
Kapoor Vs. Ms. Shailja Kapoor, AIR 1989 Delhi 10 has
defined the term maintenance and support. The learned Single
Judge has culled out the following principles which are relevant
to determine the maintenance under Section 24 of the Hindu
Marriage Act:
“10. Sometimes an application under Section 24 is filed
read with S. 26 of the Act which deals with custody of
the children and the court is authorized to pass interim
orders with respect
to custody, maintenance and
education of minor children. That, however, is not the
case
here.
While
fixing
permanent
alimony
and
maintenance under Section 25 of the Act, the court is
expected to make detailed inquiry and has to take into
account not only the income but other properties of the
parties, their conduct and other circumstances of the
case that the court might consider relevant. But that
would not be so for the decision of the apaplication
under S. 24 of the Act as in its very nature, the inquiry
under Section 24 has necessarily to be summary. The
Court cannot be bogged down to intricacies of a
protracted trial for fixing maintenance pendent lite and
expenses of the proceedings. Otherwise, the very object
of the section would be frustrated which is that a party
is not handicapped in prosecuting his or her case. But,
then in deciding the application under Section 24 of the
Act, the Court has to act in accordance with sound
judicial principles and cannot act in an arbitrary
fashion to the prejudice of either of the parties. The
following principles would appear to be relevant for the
purpose:
(1) Position and status of the parties;
(2) Reasonable wants of the claimant (towards food,
clothing, shelter, medical attendance and treatment,
education and the like);
(3) Income of the claimant;
(4) Income of the opposite party;
(5) Number of persons opposite party is obliged to
maintain.
Two corollaries may be added here: (1) In arriving at
the income of a party only involuntary deduction like
income-tax, provident fund contribution, etc., are to be
excluded; and (2) though under the law opposite party
may not be obliged to maintain brother or sister but if
that brother or sister having no income is living with
the opposite party as member of his family and where
either there are no parents or are unable to maintain
themselves, the Court may in a given circumstance
consider
the
expenses
to
be
incurred
on
the
maintenance or brother or sister by the opposite party.
After
all,
court
cannot
be
expected
to
adopt
a
mechanical approach while interpreting the provisions
of law incorporating principles of social justice like S.
10.
24 of the Act.”
A similar view has been taken by Punjab and
Haryana High Court in Jagatjit Singh Vs. Sushma, 1994 (2)
HLR 561.
11.
The Apex Court in Smt. Jasbir Kaur Sehgal Vs.
District Judge, Dehradun and others, AIR 1997 Supreme
Court 3397 has held that section 24 of the Act no doubt talks of
maintenance of wife during the pendency of the proceedings, but
this Section cannot be read in isolation and cannot be given
restricted meaning to hold that it is the maintenance of the wife
alone and no one else. Their Lordships have further held that if
the husband tries to conceal his true income, adverse inference
is to be drawn against him. Their Lordships have held as under:
“6. Wife says that the husband has not given true
account of his assets and income and has rather
suppressed the same. Though the wife has not been able
to give any specific evidence to support her contention
but circumstances show that the husband has not given
true state of affairs of his income. He has pleaded that
both his wife and his eldest daughter are earning Rs.
10,000/- per month but there is no basis for such an
allegation. The fact remains that the wife has no source
of income and she is also maintaining her eldest
unmarried daughter. Under the Hindu Adoptions &
Maintenance Act, 1956 it is the obligation of a person to
maintain his unmarried daughter if she is unable to
maintain herself. In this case since the wife has no
income of her own, it is the obligation of the husband to
maintain her and her two unmarried daughters one of
whom is living with wife and one with him. Section 24 of
the Act no doubt talks of maintenance of wife during the
pendency of the proceedings but this section, in our
view, cannot be read in isolation and cannot be given
restricted meaning to hold that it is the maintenance of
the wife alone and no one else. Since wife is maintaining
the eldest unmarried daughter, her right to claim
maintenance would include her own maintenance and
that of her daughter. This fact has to be kept in view
while fixing the maintenance pendente lite for the wife.
We are aware of the provisions of Section 26 of the Act
providing
for
custody
of
minor
children,
their
maintenance and education but that section operates in
its own field.
7. Husband has filed his counter affidavit in the
appeal before us and on our direction both the parties
have filed additional affidavits. On one date when this
appeal came up for hearing we were told that the
husband had left that morning itself for Canada for
further treatment after his bypass surgery in India and
that his expenses visiting Canada and as well as the
expenses for treatment there were being met by his
friend. In his affidavit husband has stated that his friend
Santokh Singh who is resident of Canada paid his fare.
He is, however, silent about the expenses if any met by
Santokh Singh for his treatment in Canada. A copy of the
statutory declaration of Santokh Singh which is dated
March 21, 1997 has also been filed. In this Santokh
Singh does say that he has undertaken to bear the cost of
passage and maintenance of respondent during his stay
in Canada and North America. It is a matter of common
knowledge that medical treatment in Canada is high and
an ordinary person cannot afford the expenses which are
met by taking medical insurance. As to what expenses
husband incurred for his bypass surgery in India has not
been disclosed. On our query as to how much foreign
exchange husband obtained while going to Canada, it was
stated that Dollar U. S. 1,350 were obtained at a cost of
about Rs. 50,000/-. From where all these monies came
from we are left in dark. Husband has not filed any
certificate of his salary from his present employer though
the wife has contended that both the firms Mukul
Overseas Pvt. Ltd. and Mukul International Pvt. Ltd. are
owned by the husband himself which fact husband has
denied. Though we are not concerned with the income of
his son which is stated to be Rs. 7,500/- per month, it
would have been better if the husband had given
complete details as to the perquisites enjoyed by his son,
the rent he is paying for his rented accommodation at
Safdarjung Enclave and the like. Claim of the husband
that though his house in NOIDA fell vacant in January,
1996, it has neither been further let nor the husband
himself living there because of certain repairs and on
that account he is residing with his son does not appeal
to us. It does appear to us from the affidavit of the
husband that it conceals more than what it tells of his
income and other assets. Attempt has been made to
conceal his true income and that leads us to draw an
adverse inference against the husband about his income
that it is much more than what is being disclosed to us.
The claim of the husband that from an income of Rs.
4,750/-
per
month
which
is
getting
from
Mukul
International Pvt. Ltd. he has to maintain himself, his
two sons and daughter is absurd particularly when the
eldest son is earning more than the husband and it is the
husband who is living with him. Husband has also not
disclosed retiral benefits if any from the ONGC and the
amount of provident fund he obtained from there.
Husband has interest income from Unit Trust of India
and also from the fixed deposit receipts but again he has
not disclosed the number of units he is holding and the
amount of the fixed deposits in his name. From all these
have
to
hold
that
the
annual
income
of
the
we
respondent-husband is even on modest estimate to be Rs.
2,40,000/- annually which would come to Rs. 20,000/-
per month. Considering the diverse claims made by the
one
inflating
the
income
and
the
parties
other
suppressing an element of conjecture and guess work
does enter for arriving at the income of the husband. It
cannot be done by any mathematical precision.
9. The question then arises as to from which date
the wife would be entitled to claim the enhanced amount
of maintenance pendente lite. If wife has no source of
income it is the obligation of the husband to maintain
her and also children of the marriage on the basis of the
provisions
contained
in
the
Hindu
Adoptions
and
Maintenance Act, 1956. Her right to claim maintenance
fructifies on the date of the filing of the petition for
divorce under the Act. Having thus fixed the date as the
filing of the petition for divorce it is not always that the
court has to grant the maintenance from that date. The
Court has discretion in the matter as to from which date
maintenance under S. 24 of the Act should be granted.
The discretion of the court would depend upon multiple
circumstances which are to be kept in view. These could
be the time taken to serve the respondent in the
petition; the date of filing of the application under S. 24
of the Act; conduct of the parties in the proceedings;
averments made in the application and the reply thereto;
the tendency of the wife to inflate the income out of all
proportion and that of the husband to suppress the same;
and the like. There has to be honesty of purpose for both
the parties which unfortunately we find lacking in this
case. We are therefore of the opinion that ends of justice
would be met if we direct that maintenance pendente lite
as fixed by this judgment to be payable from the date of
impugned order of the High Court which is October 16,
1996. We order accordingly. The impugned judgment of
the High Court shall stand modified to that extent. All
arrears of maintenance shall be paid within a period of
two months from today and then regularly every month.”
Their Lordships of the Hon’ble Supreme Court in
Sudeep
Chaudhary
Vs.
Radha
12.
Chaudhary,
AIR
1999
Supreme Court 536 have held that the amount awarded under
Section 125, Criminal Procedure Code is adjustable against
amount awarded in matrimonial proceedings under Section 24 of
Hindu Marriage Act as alimony to wife. Their Lordships have held
rt
as under:
“5. Since the husband failed to pay the amount of
as
aforesaid,
the
wife
started
recovery
maintenance
proceedings. The husband contended that the maintenance
amounts should be adjusted against the interim alimony
and the Magistrate before whom the recovery proceedings
were pending upheld the contention. The High Court, in
order which is under appeal, held that the Magistrate was
in error in directing adjustment of the maintenance
amount awarded under Section 125 of the Cr. P.C. against
the amount awarded under Section 24 of the Hindu
Marriage Act.
6. We are of the view that the High Court was in error. The
amount awarded under Section 125 of the Cr. P.C. for
maintenance was adjustable against the amount awarded in
the matrimonial proceedings and was not to be given over
and above the same. In the absence of the wife, we are,
however, not inclined to go into any detailed discussion of
the law.
7. At the same time, we feel that the claims of the husband
and the wife are to be balanced. We, therefore, direct that
the husband shall pay to the wife towards maintenance
(which now comprehends both the amount awarded under
Section 125 of the Cr. P.C. and the amount awarded in the
matrimonial proceedings) the sum of Rs.1,000/- p.m.
commencing from 3rd July, 1990. The arrears, if any, shall
be paid within 8 weeks.”
13.
In Rousseau Mitra Vs. Shrimati Chandana Mitra
AIR 2004 Calcutta 61, the learned Single Judge of Calcutta
High Court has held that when the husband voluntarily having
incapacitated himself from earning, he cannot avoid his liability
to maintain his wife and child. The learned Single Judge has held
as under:
of
“9. There is no fixed principle for determining the amount
maintenance
pendente
lite
or
expenses
of
the
proceedings. The Court has to consider the status of the
parties, their needs and the capacity of the husband to pay
regard
to
the
reasonable
rt
having
expenses
for
the
maintenance of the wife and the child, which he is obliged
to meet under the law. The amount of maintenance
pendente lite should be fixed for the wife and the child
taking into consideration the cost of living index so that
she does not feel handicapped. The husband was an
employee of a private firm and he used to earn by
undertaking private typing jobs. It is alleged by the
husband that he has left his service voluntarily with effect
from November 2001 and presently he is unemployed and
has no income at all to pay the maintenance pendente lite
or expenses of the proceedings. The husband is an able-
bodied person capable of earning. The husband voluntarily
incapacitated himself from earning, but he cannot avoid
his liability to maintain his wife and the child.
11. The family background of the husband had been
disclosed. It has been established that the parties come
from respectable families and they have a particular status
in the society. Although there was no evidence before the
Court about the actual income of the husband, the Court
can legitimately take into consideration his ability to earn
a reasonable amount.”
14.
In L. Yuvaraj Vs. Kirubaarani Devi AIR 2009
Madras 138, the learned Single Judge has held that when the
wife coming forward with categorical statement that she is not
working any where and earning, the burden of proof is on
husband to prove place in which she is working and earning. The
learned Single Judge has held as under:
“11. I am at a loss to understand as to how such a ground
could be set out before this Court. A mere reading of the
relevant
provisions
of
the
Income
Tax
Act
would
demonstrate and indicate that there is no necessity that
every citizen had to file Income Tax returns. If at all the
income of a person exceeds a particular limit, only such
person should file return irrespective of the fact whether
income tax is due and payable or not relating to an
assessment year. As such, the revision petitioner's implied
admission would evidence that he is an income tax
assessee and there is no shard or shred of reasons available
as to why he has not filed any of the copies of the returns
before the lower Court to highlight his actual income.
Section 106 of the Indian Evidence Act would warrant the
revision petitioner to produce such evidence, but he failed
to do so. Hence, in such circumstance, adverse inference
could rightly be drawn to the limited extent that the
revision petitioner did not want to disclose his real income.
Whereas, the respondent/wife would come forward with the
categorical statement that she is not working any where
and earning. In such a case, the burden of proof is on the
petitioner to prove the place in which she is working and
earning. In the absence of such evidence, I could see no
infirmity in the order passed by the lower Court.
12. The affidavit of the wife, accompanying the I.A.No.163
of 2007, would display and indicate that the petitioner is
doing business and earning. We cannot expect a hapless
and helpless wife and child to run from pillar to post to
gather particulars relating to the income of the husband.
The Family Court considering the over all circumstance
involved in the case felt that the husband i.e. the revision
petitioner is capable of paying a sum of Rs.5,000/- per
month as interim maintenance towards the respondent and
the minor child and such a conclusion cannot be labeled or
dubbed as unreasonable or illegal, warranting interference
by this Court.”
Their Lordships of the Hon’ble Supreme Court in
15.
Neeta Rakesh Jain Vs. Rakesh Jeetmal Jain (2010) 12
Supreme Court Cases 242 have held that while awarding
interim maintenance, social status, the back ground from which
both the parties come from and economical dependency of the
petitioner has to be taken into consideration. Their Lordships
have held as under:
“9. Section 24 thus provides that in any proceeding under
the Act, the spouse who has no independent income
sufficient for her or his support may apply to the court to
direct the respondent to pay the monthly maintenance as
the court may think reasonable, regard being had to the
petitioner's own income and the income of the respondent.
The very language in which Section is couched indicates
that wide discretion has been conferred on the court in the
matter of an order for interim maintenance. Although the
discretion conferred on the court is wide, the Section
provides guideline inasmuch as while fixing the interim
maintenance the court has to give due regard to the
income of the respondent and the petitioner's own income.
10. In other words, in the matter of making an order for
interim maintenance, the discretion of the court must be
guided by the criterion provided in the Section, namely,
the means of the parties and also after taking into
account incidental and other relevant factors like social
status; the background from which both the parties come
from and the economical dependence of the petitioner.
Since an order for interim maintenance by its very
nature is temporary, a detailed and elaborate exercise by
the court may not be necessary, but, at the same time,
the court has got to take all the relevant factors into
account and arrive at a proper amount having regard to
the factors which are mentioned in the statute.”
16.
Their Lordships of the Hon’ble Supreme Court in U.
Sree Vs. U. Srinivas (2013) 2 Supreme Court Cases 114 have
held that while granting permanent alimony under Section 25,
the status of the parties, their respective social needs, financial
capacity of husband and other obligations are to be taken into
consideration. Their Lordships have further held that it is the
not
in
penury.
The
living
duty of Court to see that wife lives with dignity and comfort and
need
not
be
luxurious
but
simultaneously she should not be left to live in discomfort. Their
Lordships have held as under:-
“33. We have reproduced the aforesaid orders to highlight
that the husband had agreed to buy a flat at Hyderabad.
However, when the matter was listed thereafter, there was
disagreement with regard to the locality of the flat
arranged by the husband and, therefore, the matter was
heard on merits. We have already opined that the husband
has made out a case for divorce by proving mental cruelty.
As a decree is passed, the wife is entitled to permanent
alimony for her sustenance. Be it stated, while granting
permanent alimony, no arithmetic formula can be adopted
as there cannot be mathematical exactitude. It shall
depend upon the status of the parties, their respective
social needs, the financial capacity of the husband and
other obligations. In Vinny Parmvir Parmar v. Parmvir
Parmar[28], while dealing with the concept of permanent
alimony, this Court has observed that while granting
permanent alimony, the Court is required to take note of
the fact that the amount of maintenance fixed for the wife
should be such as she can live in reasonable comfort
considering her status and the mode of life she was used to
when she lived with her husband. At the same time, the
amount so fixed cannot be excessive or affect the living
condition of the other party.
34. Keeping in mind the aforesaid broad principles, we may
proceed to address the issue.
35. The respondent himself has asserted that he has earned
name and fame in the world of music and has been
performing concerts in various parts of India and abroad.
He had agreed to buy a flat in Hyderabad though it did not
materialise because of the demand of the wife to have a flat
in a different locality where the price of the flat is
extremely high. Be that as it may, it is the duty of the
Court to see that the wife lives with dignity and comfort
and not in penury. The living need not be luxurious but
simultaneously she should not be left to live in discomfort.
The Court has to act with pragmatic sensibility to such an
issue so that the wife does not meet any kind of man-made
misfortune. Regard being had to the status of the husband,
the social strata to which the parties belong and further
taking note of the orders of this Court on earlier occasions,
we think it appropriate to fix the permanent alimony at Rs
50 lacs which shall be deposited before the learned Family
Judge within a period of four months out of which Rs.20
lacs shall be kept in a fixed deposit in the name of the son
in a nationalized bank which would be utilised for his
benefit. The deposit shall be made in such a manner so that
the respondent wife would be in a position to draw
maximum quarterly interest. We may want to clarify that
17.
any amount deposited earlier shall stand excluded.”
In 1950 (2) The All England Law Reports 311,
Rose vs. Rose, this kind of plea raised by the husband was
rejected in three separate opinion given by Justice Somervell,
L.J., Bucknill, L.J. and Denning, L.J. as under:-
“Sommervell, L.J........The question is whether that is
wrong in law on the facts of the case. I do not propose to
consider
whether
or
in
what
circumstances
earning
capacity ought to be brought into the calculation in the
case of a wife who has not been required to earn any money
during the matrimonial life, but, in my view, where during
the matrimonial life the means of the husband were such
that the wife was not required to go out and earn money,
then, in determining the proper sum for maintenance, it
would prima facie seem to be wrong that the husband
should be able to say: “Now you must go out and work, and
the only sum I can be ordered to pay is one based on the
results of your going out to work, which you did not have
to do when you were my wife and which you would not
have had to do if I had not committed adultery and broken
up the home” as in the present case. That prima facie
approach seems to me to be plainly right in a case such as
this, where the marriage had lasted for some twenty years.
The wife is a woman of forty one years of age, who has
normal trade or calling, though, no doubt, she is capable of
doing domestic work, and there is a child of some four and
a half years of age for her to look after. Therefore, I think
the appeal succeeds, and that the order should be for a
week less tax.
Bucknill, L.J.: I agree with the judgment which has just
been delivered. It seems to me that WILLMER, J., would
not have disturbed the figure fixed by the register if it were
merely a question of amount. I feel that he must have
amended it because he felt that the registrar had not taken
into consideration the earning capacity of the wife, and
counsel for the husband has said that during the discussion
before WILLMER, J.,
capacity
of
the
wife
he
submitted
could
be
put
that
at
the
£2
earning
a
week.
Unfortunately, we have not got any record of the judgment,
but I am satisfied that that was why WILLMER, J., altered
the figure. The question whether the earning capacity of
the wife should be taken into account, in my opinion, must
always depend on the particular facts of the case. I would
be sorry to lay down any general rule about it, but it seems
to me that in a case such as this, where the facts are as
stated in the judgment of SOMERVELL, L.J., it would be
wrong to reduce the liability of the husband to maintain his
wife by reckoning that the wife could, if she saw fit, go out
with her child and earn some money by doing domestic
work. The wife in this case is not trained to do any special
work, and I do not know that she could do anything else.
What she did for a short time was to work in the kitchen
for a friend. I agree that the appeal should be allowed.
DENNING, L.J.: I also agree. A very important matter in
awarding maintenance is the conduct of the parties.
In this case it has been established that the husband broke up the
marriage after twenty one years of married life, leaving the
wife with two children, one of them very young. It was a
particularly bad case because the husband committed
adultery with a Swiss student help who came to the house.
After the divorce the wife claimed maintenance, and the
question is whether she ought to go out to work. I agree
that no general rule can be laid down on the matter, but
this wife is certainly under no legal duty to go out to work
in order to reduce the maintenance that her husband
should pay. It would be quite unreasonable to expect her to
do so when she has to look after a young child. If a wife
does earn, then her earnings must be taken into account;
or if she is a young woman with no children, and obviously
ought to go out to work in her own interest, but does not,
then her potential earning capacity ought to be taken into
account; or if she has worked regularly during the married
life and might reasonably expected to work after the
divorce, her potential earnings ought to be taken into
account. Except in cases such as those, however, it does
not as a rule lie in the mouth of a wrongdoing husband to
say that the wife ought to go out to work simply in order to
Accordingly, in view of the observations and
18.
relieve him from paying maintenance.”
analysis, made hereinabove, there is no merit in the petition
and the same is dismissed. The pending application(s), if any,
also stands dismissed. No order as to costs.
9. 5. 2014
(Rajiv Sharma),
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