Karnataka High Court: While passing the order in a writ petition filed under Articles 226 and 227 of the Constitution, a Single Judge Bench comprising of Aravind Kumar, J. held that the contention of the respondent that the present application for maintenance was not maintainable on account of the petitioner having already filed an application under S. 125 CrPC could not be accepted.
The marriage was solemnized between the petitioner wife and the respondent husband in 2001. The petitioner filed a petition under S. 13(1 (ia) and (ib) of the Hindu Marriage Act, 1955 for dissolution of marriage. During the pendency of proceedings, the petitioner filed an interlocutory application under S. 24 of the Act claiming interim maintenance. The respondent contended that he was already paying Rs. 10,000 p.m. to the petitioner as maintenance under S. 125 CrPC.
The Court held that there cannot be any bar for claiming maintenance under S. 24 HMA, even in the event of application under S. 125 CrPC having been filed. The Court further held that a reading of S. 24 HMA, would disclose that while awarding maintenance, court has to take into consideration the income of parties before deciding the quantum of maintenance. During the pendency of divorce proceedings, at any point of time, if wife establishes that she has no sufficient independent income for her support, it would always be open for her to claim maintenance pendent lite. In case respondent-husband attempts to stove off the claim for maintenance sought for by the wife, it is trite law that husband will have to satisfy the court that either due to physical or mental disability, he is handicapped to earn and thereby, he is unable to pay maintenance to his wife and offspring.
The Court allowed the petition in part and affirmed the order of the lower court awarding maintenance at Rs. 20,000 p.m. to the petitioner.
[X v. Y, W.P. No. 15406/2017 C/with W.P. No. 20884/2017 (GM-FC), order dated July 27, 2017]