Ram Kumar Gupta vs Smt. Asha Gupta and another

This criminal revision is directed against orders dated 18.06.2016 and 22.06.2016 passed by learned I Additional Principal Judge, Family Court, Jabalpur in M.J.C. No.126/2014; whereby the application for interim maintenance, filed on behalf of respondents wife Asha Gupta and son Hridyansh Gupta under section 125 of the Code of Criminal Procedure, was partly allowed and petitioner husband Ram Kumar Gupta was directed to pay Rs.5000/- per month for respondent Asha Gupta and Rs.3000/- per month for respondent Hridyansh Gupta.

The grounds on which the order awarding interim maintenance has been challenged are that: (1) Respondent Asha Gupta is a postgraduate in Psychology and is a teacher in a private school. She also takes tuition and earns about Rs.15000/- per month. As such, she is capable of maintaining herself.

(2) Petitioner Ram Kumar Gupta is totally unemployed and he works as a labourer, whenever he gets the opportunity. He is sick and is; therefore, unable to earn enough to pay interim maintenance.

First of all we shall consider whether respondent wife is capable of maintaining herself and her minor son. Even if it is assumed for the sake of arguments that she is a postgraduate in Psychology, it may be noted that the petitioner husband has failed to point out as to in which school she is working as a teacher. No document has been filed in support of her alleged salaary. Moreover, it is highly unlikely that children would take tuitions in a subject like Psychology. Thus, merely on the basis of bald statement of the petitioner husband, it cannot be held that respondent wife is working as a teacher and taking tuitions. As such, the petitioner husband has failed to establish that respondent wife is capable of maintaining herself and her son.

Now, the question that remains for consideration is whether the petitioner husband is refusing or neglecting to maintain respondent wife and respondent son in spite of having sufficient financial means. It has to be noted that unless barred by law, the right of a wife to receive maintenance is absolute. The husband cannot avoid paying maintenance by simply taking a plea that he is unemployed and is unable to maintain his wife (Please see: Shamima Farooqui vs. Shahid Khan, AIR 2015 SC 2025).

The petitioner husband has taken a plea that he is sick and is; therefore, unable to earn enough. He has filed certain documents which indicate that he has suffered in the past from viral fever and diarrhea. It may be noted in this regard that there is hardly anyone who has never suffered from such diseases in his life. He is also said to be suffering from depression; however, even that disease would not incapacitate someone from earning his livelihood.

Learned counsel for the petitioner has contended that the petitioner husband works as a labourer; however, it is highly unlikely that a woman who is postgraduate in Psychology would have married a casual labourer. In these circumstances, it is obvious that the petitioner has not come before the Court with clean hands and is making blatant attempt to conceal vocation and his income. Moreover, the respondent wife has filed a detailed affidavit with regard to financial means of the petitioner. She has stated that petitioner husband jointly owns a shop named Shriram Hosiery with his brother Shiv and father. The shop is located at No.14, Sidhnath Ji Market, Nandan Mahal Road, Lucknow. She has also provided details of the mobile number, Tin number, issued in favour of petitioner by Commercial Taxes Department of Utter Pradesh, the bank account number in HDFC bank Aminabad, Lucknow and the name of the institutions wherein the petitioner regularly invests. Initially the petitioner husband failed to file any affidavit to rebut aforesaid facts specifically; however, after the learned Family Court Judge passed order of interim maintenance, he filed a detailed affidavit and moved an application for review of the order. The trial Court dismissed the application for review. However, even if the affidavit filed later is taken into account, it simply denies the aforesaid facts. At this stage, the respondent wife cannot be expected to come up with all necessary documents but it is absolutely clear that the petitioner husband is a man of financial means and is certainly capable of paying Rs.5000/- per month to his wife and Rs.3000/- per month to his son by way of interim maintenance. It may be noted here that wife and son cannot be awarded pittance by way of interim maintenance. Even interim maintenance has to be fixed, keeping in view the standard of living the wife and son would be enjoying had they continued to live with the husband. Such rate of maintenance has to be modestly consistent with the earnings of the husband.

On the basis of foregoing discussion, this Court is of the view that the trial Court committed no illegality, irregularity or impropriety in awarding interim maintenance to the respondent wife at the rate of Rs.5000/- per month and to respondent son at the rate of Rs.3000/- per month. Thus, no interference in the impugned order is warranted.

Consequently, this criminal revision deserves to be and is accordingly dismissed.