{"id":340154,"date":"2025-01-31T11:00:30","date_gmt":"2025-01-31T05:30:30","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=340154"},"modified":"2025-02-03T09:27:00","modified_gmt":"2025-02-03T03:57:00","slug":"wifes-temporary-job-will-not-disentitle-her-to-claim-maintenance-from-her-husband-kerala-hc","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2025\/01\/31\/wifes-temporary-job-will-not-disentitle-her-to-claim-maintenance-from-her-husband-kerala-hc\/","title":{"rendered":"Wife\u2019s temporary job will not disentitle her to claim maintenance from husband, if income from said job is insufficient for her maintenance: Kerala HC"},"content":{"rendered":"
\n

Kerala High Court:<\/span> In the two revision petitions filed challenging the order dated 25-10-2023, passed by the Family Court, Pathanamthitta (‘Family Court’), Kauser Edappagath, J.<\/span>, stated that wife’s temporary job, even if it provided some income, would not disentitle her to claim maintenance from her husband, if she asserted that the said income was insufficient for her maintenance.<\/p>\n

Thus, considering the overall facts and discussions, the Court set aside the finding in the impugned order that the wife was not entitled to claim maintenance from the husband. The Court stated that the wife could very well claim maintenance from her husband and accordingly, remitted the matter back to Family Court to decide the quantum of maintenance.<\/p>\n

Background<\/h3>\n

In the maintenance case before the Family Court, Petitioner 1 was the legally wedded wife (‘wife’) and the respondent was the husband. Two children were born out of their wedlock. Petitioner 2 was their elder daughter. The wife and husband had been at loggerheads for many years, and they were living separately. There were a series of litigation between them, and the elder was living with the wife, while the younger daughter was living with the husband.<\/p>\n

The wife and the elder daughter filed a maintenance case against the husband, claiming maintenance of Rs. 45,000 each per month. They alleged that they had no job or source of income and were unable to maintain themselves. They further alleged that the husband was working in the Merchant Navy and earned Rs. 9,00,000 per month.<\/p>\n

The husband filed a counterstatement contending that the wife was working as a clerk and was able to maintain herself. He further contended that the elder daughter had attained majority and hence, she was not entitled to claim maintenance invoking Section 125<\/a>1<\/sup><\/a> of the Criminal Procedure Code, 1973<\/a> (‘CrPC’).<\/p>\n

After the trial, the Family Court found that the wife was working as a Data Entry Operator and was earning a monthly salary of Rs. 21,175 and therefore, she was not entitled to maintenance. So far as the elder daughter was concerned, it was found that she was a major and thus was not entitled to maintenance under Section 125(1)(c)<\/a> of the CrPC<\/a>.<\/p>\n

Thus, in the present case, two revision petitions were filed. The first petition was filed by the husband challenging the direction in the impugned order to hand over the original certificates of life insurance policies in the wife’s name to the wife and the elder child. Further, the second petition was filed by the wife and the elder daughter challenging the impugned order, which rejected their claim for maintenance.<\/p>\n

Analysis, Law, and Decision<\/h3>\n

The Court stated that while it was true that the maintenance under Section 125<\/a> of CrPC<\/a>, was provided to the wife who was unable to maintain herself. However, ‘unable to maintain herself’ did not mean that the wife must be in a state of penury. The Court referred to Shailja v. Khobbanna<\/span>, (2018) 12 SCC 199<\/a> and Reema Salkan v. Sumer Singh Salkan<\/span>, (2019) 12 SCC 303<\/a> and stated that the law was well settled that even if a wife had the capability to earn or was earning something, it did not disentitle her from claiming maintenance from her husband. The test was whether the wife was able to maintain herself more or less in the status in which her husband had maintained her. The wife was entitled to live the same standard of life as she lived along with the husband.<\/p>\n

The Court observed that the though the wife had managed to get a temporary contract after separation, the salary she got from the said employment was not sufficient to maintain herself and the elder child. The wife was now residing in a rented house and the elder child was depended on her. The claim for maintenance by a wife who was unable to maintain herself would also include the expenses incurred by her towards the reasonable expenses of the child who was dependent on her. The Court stated that merely because the child was a major, would not prevent the wife from claiming maintenance from her spouse to meet the needs of the dependent child.<\/p>\n

The Court stated that wife’s temporary job, even if it provided some income, would not disentitle her to claim maintenance from her husband, if she asserted that the said income was insufficient for her maintenance. Further, an able-bodied husband must be presumed to be capable of earning enough to support his family unless he could prove genuine inability with concrete evidence. The Court stated that even though the wife had filed a statement showing her assets and liabilities, no such statement was filed by the husband. The husband had failed to discharge the said burden with the necessary materials to prove that he was unable to maintain his wife and child.<\/p>\n

Thus, the Court stated that the finding in the impugned order that the wife was not entitled to claim maintenance from the husband could not be sustained, and the Family Court erred in not awarding maintenance to the wife who did not have any permanent source of income.<\/p>\n

The Court noted that the maintenance claimed by the elder daughter was denied by the Family Court on the ground that she had attained majority even before the filing of the maintenance case. The Court stated that Section 20(3)<\/a> of the Hindu Adoptions and Maintenance Act, 1956<\/a> (‘HAMA’) was a recognition of the principles of Hindu law regarding the obligation of a Hindu to maintain his\/her daughter, who was unmarried and was unable to maintain herself out of her own earnings or other property. The obligation, which was cast on the father to maintain his unmarried daughter, could be enforced under Section 20<\/a> of HAMA<\/a>, against her father if she was unable to maintain herself.<\/p>\n

The Court stated that the wife or elder daughter did not take a plea at all before the Family Court that the latter was entitled to maintenance invoking Section 20(3)<\/a> of HAMA<\/a>. Even in the revision petition, such a plea was not taken. Thus, the Court stated that the finding of the Family Court that the elder daughter was not entitled to maintenance under Section 125<\/a> of CrPC<\/a>, thus, warranted no interference. However, the elder daughter was at liberty to file a separate application for maintenance invoking Section 20(3)<\/a> of the HAMA<\/a> before the Family Court.<\/p>\n

Further, regarding the Family Court’s decision to hand over the life insurance policy certificates to wife and elder daughter, the Court stated that it was not in dispute that the life insurance policy certificates stood in the name of the wife and the elder daughter. Hence, they were entitled to the said certificates.<\/p>\n

Thus, considering the overall facts and discussions, the finding in the impugned order that the wife was not entitled to claim maintenance from the husband was set aside. The Court stated that the wife could very well claim maintenance from her husband and remitted the matter back to Family Court to decide the quantum of maintenance.<\/p>\n

[A v. B., 2025 SCC OnLine Ker 494<\/a>, decided on 27-01-2025<\/span>]<\/p>\n\n

Advocates who appeared in this case :<\/p>\n

For the Petitioner:<\/span> Jayaprakash E.P, Advocate.<\/p>\n

For the Respondents:<\/span> Jacob P. Alex, Advocate; Joseph P. Alex, Advocate; Manu Sankar P., Advocate; Amal Amir Ali, Advocate.<\/p>\n

Buy Code of Criminal Procedure, 1973  HERE<\/a><\/h3>\n

\"Code<\/a><\/p>\n<\/div>\n\n

1.<\/a> Section 144<\/a> of Bharatiya Nagarik Suraksha Sanhita, 2023<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

“The test is whether the wife is able to maintain herself more or less in the status, in which her husband has maintained her. 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