Delhi High Court: While addressing a matter with regard to maintenance to wife, Subramonium Prasad, J., held that the fact that the wife is capable of earning is no ground to deny interim maintenance to her. Many a times wives sacrifice their career only for the family.

Instant petition was filed by an Indian Army colonel to set aside the order passed by Family Court wherein the Court passed an order under Section 125 CrPC directing the petitioner to pay monthly maintenance of Rs 33,500 to the respondent.

Revisionist Petitioner submitted that there were glaring inconsistencies that were in the order as a result of suppression of facts made by the respondent. He contended that the respondent was disqualified from being given maintenance as she was in an adulterous relationship and was living in adultery with an army senior of the petitioner.

Further, he submitted that the respondent and her paramour were having an affair behind his back and the paramour was known to the couple as a family friend from the time they had gotten married in 2002.

Adding to the above, it was submitted that Section 125(4) CrPC was attracted which stated that a person living in adultery would not be eligible for claiming maintenance from her separated spouse.

Petitioner submitted that the respondent was disqualified from receiving maintenance on the ground that she was employed as a teacher previously and was making a living. Respondent had an earning capacity and could maintain herself without the financial support of the petitioner as sanctioned by law.

Submission of the respondent’s maintenance claim was to be decided in accordance with the Army Order, the same would be decided by the Army Officials of the Armed Tribunal and the jurisdiction exercised by the Family Court was wrong and improper. Hence, the entire proceedings before the family court were null and void.

Petitioner lastly submitted that the respondent had suppressed the fact that she was capable of earning.

Analysis, Law and Decision

While analyzing the matter, High Court noted that the material on record disclosed that the children were with the petitioner from 2015 and hence the respondent was not entitled to two shares and Trial Court ought to have granted Rs 14, 615 per month as interim maintenance to the respondent.

Bench expressed that the petitioner’s contention that he was covered by the Army Order and therefore trial court fixing maintenance was contrary does not hold water.

It cannot be said that the Army Order would override the provisions of Section 125 Cr.P.C and that the Army personnel are covered only by the Army Order and that Section 125 Cr.P.C would not apply to Army Personnel.

 With regard to the contention of the wife living in adultery, she raised a very interesting counter-argument that one incident of adultery cannot lead to a conclusion that she is living in adultery.

Court referred to the decision dated 22-8-2020 regarding custody of children to the father which did not conclusively prove that the wife committed adultery or was living in adultery.

Examining the above contention further, High Court stated that it will not go into the issue of whether the wife is living in adultery or not.

The Bench added that if it was conclusively proved that the respondent was living in adultery and was not entitled to maintenance at all, the trial court could pass appropriate order for the return of the maintenance amount if it deemed it fit and keeping in mind the object of Section 125 CrPC was to prevent vagrancy and destitution of a deserted wife.

Hence, revision petition was allowed in part and the petitioner was directed to pay a sum of Rs 14, 615 as interim maintenance to the wife.

“This Court is not inclined to disturb the portion of the impugned order which has directed the petitioner herein to pay a sum of Rs 9,000/- per month to the respondent herein w.e.f. date of filing of the petition till December, 2016.”

In view of the above, a revision petition was allowed in part. [Col Ramnesh Pal Singh v. Sugandhi Aggarwal, 2021 SCC OnLine Del 5497, decided on 21-12-2021]

Advocates before the Court:

For the Petitioner: Petitioner-in-person

For the Respondent: Respondent -in-person

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