The Bombay High Court in a momentous judgement in Sanjay Damodar Kale vs. Kalyani Sanjay Kale Case reiterated the legal stance that an ex-wife having an independent source of income does not dis-entitle her from seeking maintenance from her husband. The fact that the wife was earning some money cannot be a reasonable ground for dismissing her claim for maintenance. In this case, it was held that an ex-wife is entitled to maintenance even if she runs a business and has her own source of income. However, the High Court rightly observed that the Family Court overlooked the fact that the claimant’s wife did have a source of income. Thus, the revision application was granted and the monthly maintenance amount was reduced from Rs.15,000 to Rs.12,000 per month.
EQUIVALENT CITATIONS: Criminal Revision Application No.164 Of 2019
DATE OF JUDGEMENT: May 26th, 2020
COURT: The Bombay High Court
BENCH: Justice N. J. Jamadar
FACTS OF SANJAY KALE vs. KALYANI KALE CASE:
- On November 12, 1997, the couple married according to Hindu religious rites and ceremonies. According to the respondent, the appellant had abused her since the beginning of their marriage.
- In 1999, the respondent was dropped off at her parents’ house in Satara. Despite repeated promises, the appellant failed to come to take his wife back to her marital residence. After police intervention, the respondent was eventually allowed back into her matrimonial home in Mahatma Society, Pune.
- In April 2007, the appellant showed his intention to divorce the respondent. Despite the respondent being reluctant in the beginning, claims to the contrary, she signed the papers for a divorce petition by mutual consent after the respondent told her that despite a paper declaration of divorce, he will continue to maintain their marital relationship. Thus, on October 25th, 2007, a mutual consent divorce decree was obtained.
- Despite the divorce order, the appellant saw the respondent at her apartment and had marital relations with her. However, he stopped visiting the respondent’s home in September 2012. The respondent claimed that the appellant, despite having sufficient means, made no provision for her maintenance and livelihood. Hence, she applied for maintenance under Section 125 of the Code of Criminal Procedure in the Family Court and demanded Rs.50,000 per month as maintenance.
- The Family Court, Pune allowed the application and held that the appellant had failed or refused to maintain the respondent, who cannot support herself, despite having sufficient means to do so. The Court passed an order for payment of Rs. 15,000/- to the respondent from the date of the application, as well as Rs. 7000/- in litigation costs, under Section 125 of the CrPC. The appellant challenged the judgement and order of the Family Court, Pune before the Bombay High Court.
- The respondent claimed that despite having sufficient means and resources; the appellant failed to make adequate provisions for her maintenance and subsistence. She did not have a source of income and she could only survive on the financial assistance of her father.
- The appellant claimed that the accusations of cruelty and ill-treatment were false and that the respondent had a psychiatric condition that prevented the marriage from being consummated. Hence, had filed a petition under Sections 12(1)(a) and 13(1)(ia) of the Hindu Marriage Act, 1955.
- The appellant also stated that the respondent had become financially self-sufficient after opening a beauty parlour under the name ‘Kalyani Beauty Parlour’. As part of the mutual agreement before the decree of divorce was issued, the respondent had agreed to forego the maintenance that she is entitled to under Section 125 of the CrPC, the appellant pleaded.
- Whether the wife (respondent) entitled to maintenance under Section 125 of the CrPC?
- Whether the respondent’s income from the independent sources sufficient to sustain herself and lead a good lifestyle?
Justice N.J. Jamadar: An agreement wherein the wife waives or relinquishes her right to maintenance at any point in the future is opposed to public policy, and hence is unenforceable, even if entered willingly.
The respondent was carrying on the said business of Kalyani Beauty Parlour and Training Institute to sustain her livelihood.
The mere ability to earn or the actual earning does not disallow a claim for maintenance. The respondent’s income from the beauty parlour, which is seasonal, might not be sufficient to sustain her livelihood and enable her to maintain the same standard of living as she had before the decree of divorce.
The Court relied on the Supreme Court’s judgement of Sunita Kachwa v. Anil Kachwa (2014) wherein it was held that merely because the wife was earning money; it was not a justified reason to deny her claim for maintenance.
The Bombay High Court held that the wife (respondent) was entitled to maintenance from the husband (appellant), under Section 125 of the CrPC and the revision application was partially allowed, whereby the Court decided that Rs.12,000 per month would be a reasonable amount to support the applicant wife instead of Rs.15,000 as the respondent’s source of income was not adequately considered by the Family Court.
The Court upheld the Family Court’s reliance on the Supreme Court’s decision in Sunita Kachwa v. Anil Kachwa (2014).
The Bombay High Court’s decision, in this case, follows a sequence of decisions in which courts have declined to overturn orders granting maintenance to wives where the wife was qualified, competent, and earning a living from an independent source of income.
Courts have used the test for sufficiency of income rather than the existence of income test, which is consistent with the Supreme Court’s theory that the term “unable to sustain herself” should not be construed as sufficient income for bare survival.
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