Whether wife can be denied maintenance on the ground that she is earning some income?

   The learned  counsel  for  the  respondent  submitted  that  the
appellant-wife is well qualified, having post graduate degree  in  Geography
and working as a teacher in Jabalpur and also working in Health  Department.
Therefore, she has income of her own and needs  no  financial  support  from
respondent. In our considered view, merely because the appellant-wife  is  a
qualified post graduate, it would not be sufficient to hold that she  is  in
a position to maintain herself.   Insofar as her employment as a teacher  in
Jabalpur, nothing was placed on record before the Family  Court  or  in  the
High Court to prove her employment and her earnings. In  any  event,  merely
because the wife was earning something, it would not be a ground  to  reject
her claim for maintenance.  The Family Court had in extenso referred to  the
respondent’s salary and his economic condition.  The  respondent  is  stated
to be an Engineer in PHE, Kota.  He is in Government service  and  according
to the pay certificate  then  produced  before  the  Family  Court,  he  was
getting salary of Rs.20,268/- per month.  In  her  evidence,  appellant-wife
has also stated that the respondent owns a very big  house  of  his  own  in
which he is said to have opened a hostel for boys and girls and  is  earning
a substantial income.  She has also stated that the respondent owns  another
house at Talmandi Sabji Kota, Rajasthan and is receiving  rental  income  of
Rs.4,500/- per month. Having regard to the salary and economic condition  of
the respondent, the Family Court has awarded maintenance  of  Rs.3,000/-  to
the wife and Rs.2,500/- to each of the daughters, in  total  Rs.8,000/-  per
month.  It is stated that the maintenance amount awarded  to  the  daughters
has been subsequently enhanced to Rs.10,000/-  per  month.  The  maintenance
amount of Rs.3,000/- per month awarded to the wife  appears  to  be  minimal
and in our view, the High Court ought not to have set  aside  the  award  of
maintenance.
   NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 2310 OF 2014
                  (Arising out of SLP (Crl.) No. 2659/2012)



Sunita Kachwaha & Ors.                                     ..Appellants


                                   Versus

Anil Kachwaha                                               ..Respondent



Dated;October 28, 2014

R. BANUMATHI, J.




Delay in filing and refiling SLP condoned and leave granted.
2.          This appeal is preferred  against  the  Order  dated  26.06.2008
passed by the High Court of Madhya Pradesh at Jabalpur in Criminal  Revision
No.2303/2007, in and by which, the High Court has set  aside  the  order  of
maintenance of Rs.3,000/- awarded to the wife while affirming the  order  of
maintenance awarded to the two daughters.
3.          Marriage of the first appellant was solemnized  with  respondent
on 5.02.1996 as per Hindu  rites  and  the  spouses  are  blessed  with  two
daughters. The first daughter Ankita is aged 12 years  and  second  daughter
Akshita is 8 years old as on the  date  of  filing  of  SLP.   Case  of  the
appellant-wife is that when she was living in  the  matrimonial  house,  the
respondent and her in-laws were harassing her on the  ground  that  she  has
not brought sufficient dowry.  The appellant-wife is alleged  to  have  been
subjected to physical and mental cruelty, demanding car and dowry.   As  the
torture became intolerable, the appellant-wife had  contacted  her  brothers
in the year 2006, and her brothers came to Kota to take the appellants  back
on 24.04.2006. The matter was reported to the SHO Police  Station,  Mahaveer
Nagar, Kota about the cruel treatment meted out  to  the  appellant-wife  by
the respondent and in-laws.
4.          Because of the harassment, it is stated that the  appellant-wife
could not continue to reside in the matrimonial house,  and  the  appellant-
wife along with her children went to her  parents  house  at  Jabalpur.  The
appellants claimed maintenance by filing petition under Section 125  Cr.P.C.
before the  Second  Additional  Principal  Judge,  Family  Court,  Jabalpur.
Keeping in view the need of the appellants, the Family Court  by  its  Order
dated 29.10.2007 directed the respondent to pay  Rs.3,000/-  per  month  and
Rs.2,500/- per month to the appellant-wife and  to  each  of  the  daughters
respectively.
5.          Aggrieved by the  award  of  maintenance,  respondent  preferred
revision petition under Section 397 Cr.P.C. before the High Court of  Madhya
Pradesh, Jabalpur Bench wherein the  High  Court  has  modified  the  order,
disallowing the maintenance to the appellant-wife and  affirming  the  award
of  maintenance  to  the  daughters.   Aggrieved  by  the  said  order,  the
unsuccessful wife has preferred this appeal, praying for setting  aside  the
order of High Court and for appropriate maintenance.
6.          We have heard the learned counsel for the appearing  parties  at
length and perused the materials on record.
7.          The High Court has set aside the award  of  maintenance  to  the
wife on the ground that the separate stay of the wife due to  alleged  dowry
torture is not justified  and  that  she  has  left  the  matrimonial  house
without any justifiable ground.  As referred to by the Family Court, in  her
evidence, the appellant-wife has clearly stated that the respondent and  his
mother were physically and mentally harassing her on  the  ground  that  she
has brought insufficient dowry.  The Family Court referred to  the  evidence
of the appellant at length and held that she has justifiable ground to  stay
away from the matrimonial  house  and  the  High  Court  was  not  right  in
interfering with such factual findings and upsetting the maintenance order.
8.          The proceeding under Section 125 Cr.P.C. is summary  in  nature.
In a proceeding under Section 125 Cr.P.C.,  it  is  not  necessary  for  the
court to ascertain as to who was in wrong and  the  minute  details  of  the
matrimonial dispute between the husband and wife  need  not  be  gone  into.
While so, the High Court was not right in  going  into  the  intricacies  of
dispute between the appellant-wife and the  respondent  and  observing  that
the appellant-wife on her own left the matrimonial house and  therefore  she
was not entitled  to  maintenance.   Such  observation  by  the  High  Court
overlooks the evidence  of  appellant-wife  and  the  factual  findings,  as
recorded by the Family Court.
9.          Inability to maintain herself is the pre-condition for grant  of
maintenance to the wife.  The wife must positively aver and prove  that  she
is unable to maintain herself, in addition to the fact that her husband  has
sufficient means to maintain her and that he has neglected to maintain  her.
 In her evidence, the appellant-wife has stated that only  due  to  help  of
her retired parents and brothers, she is able to maintain  herself  and  her
daughters.   Where  the  wife  states  that  she  has  great  hardships   in
maintaining  herself  and  the  daughters,  while  her  husband’s   economic
condition is quite good, the wife would be entitled to maintenance.
10.         The learned  counsel  for  the  respondent  submitted  that  the
appellant-wife is well qualified, having post graduate degree  in  Geography
and working as a teacher in Jabalpur and also working in Health  Department.
Therefore, she has income of her own and needs  no  financial  support  from
respondent. In our considered view, merely because the appellant-wife  is  a
qualified post graduate, it would not be sufficient to hold that she  is  in
a position to maintain herself.   Insofar as her employment as a teacher  in
Jabalpur, nothing was placed on record before the Family  Court  or  in  the
High Court to prove her employment and her earnings. In  any  event,  merely
because the wife was earning something, it would not be a ground  to  reject
her claim for maintenance.  The Family Court had in extenso referred to  the
respondent’s salary and his economic condition.  The  respondent  is  stated
to be an Engineer in PHE, Kota.  He is in Government service  and  according
to the pay certificate  then  produced  before  the  Family  Court,  he  was
getting salary of Rs.20,268/- per month.  In  her  evidence,  appellant-wife
has also stated that the respondent owns a very big  house  of  his  own  in
which he is said to have opened a hostel for boys and girls and  is  earning
a substantial income.  She has also stated that the respondent owns  another
house at Talmandi Sabji Kota, Rajasthan and is receiving  rental  income  of
Rs.4,500/- per month. Having regard to the salary and economic condition  of
the respondent, the Family Court has awarded maintenance  of  Rs.3,000/-  to
the wife and Rs.2,500/- to each of the daughters, in  total  Rs.8,000/-  per
month.  It is stated that the maintenance amount awarded  to  the  daughters
has been subsequently enhanced to Rs.10,000/-  per  month.  The  maintenance
amount of Rs.3,000/- per month awarded to the wife  appears  to  be  minimal
and in our view, the High Court ought not to have set  aside  the  award  of
maintenance.  The learned counsel for the appellants prayed for  enhancement
of the quantum of maintenance to the appellant-wife.  We  are  not  inclined
to go into the said submission, but liberty is reserved  to  the  appellant-
wife to seek remedy before the appropriate court.
11.         The impugned order of the High Court dated 26.06.2008 passed  in
Criminal Revision No. 2303/2007 is set aside and  this  appeal  is  allowed.
The respondent is directed to pay the maintenance of  Rs.3,000/-  per  month
to the appellant-wife as ordered by  the  Family  Court  and  also  pay  the
arrears of maintenance payable to the appellant-wife within  the  period  of
eight weeks.

                                                               ………………………..J.
                                                               (T.S. Thakur)


                                                               ………………………..J.
                                                              (R. Banumathi)
New Delhi;
October 28, 2014
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