Judgment · High Court

Heard.

Rule. Rule made returnable forthwith. Heard finallyby the consent of learned Counsel appearing for the respectiveparties. 2 938.CRI.WP.147-2025.JUDGMENT.odt3.By this Writ Petition, the Petitioner has challengedthe order dated 27.04.2021 passed below Interim ApplicationNo. 160/2019 in Petition No. E-105/19 by the Family CourtNo.4, Nagpur granting maintenance to the present Respondentat the rate of Rs. 3,000/- per month from the date of applicationtill decision of main petition.

The brief facts of the present Petition are as follows:-4(i).The Petitioner and the Respondent are the husbandand wife. Their marriage was performed on 25.04.2006 at the Sub Registrar’s Office, Nagpur. As per the contention of the Respondent she was physically and mentally abused by thepresent Petitioner and she was also abused in a filthy languageby demanding the illegal demand. He was also addicted by badhabits like drinking liquor and under the influence of the liquorhe used to beat her, he also suspected her character, andtherefore, she constrained to leave the matrimonial house, andtherefore, she filed the Petition No.E-105/2019 for grant ofmaintenance.4(ii).It is contended that, the present Petitioner is a driver 3 938.CRI.WP.147-2025.JUDGMENT.odtin a private firm and drawing salary approximately Rs. 15,000/-to 18,000/-. After the present Respondent was driven out of thehouse he has not made any provision for her maintenance, andtherefore, she constrained to file the application and prayed forgrant of interim maintenance till the disposal of the mainpetition. 4(iii).The said petition is strongly opposed by the presentPetitioner by filing written statement. He has admitted therelationship in the written statement, however, it was contendedthat the Respondent has performed the marriage as firstmarriage was in existence, and therefore, she is not entitled forthe maintenance. It is further contended that, the presentRespondent is also running a tea stall, and therefore, she isearning more than Rs.20,000/- per month, and therefore, she isnot entitled for any maintenance.

After hearing both the sides and on perusal of thecontents of the Application and written statement, the FamilyCourt pleased to consider the petitioner for grant ofmaintenance and granted maintenance at the rate of Rs.3,000/-per month from the date of the Application i.e. from 4 938.CRI.WP.147-2025.JUDGMENT.odt06.03.2019.

Being aggrieved and dissatisfied with the same, thepresent Petition is filed challenging the order passed by the Family Court.

Heard learned Counsel for the Petitioner, whosubmitted that the marriage of the present Respondent with the Petitioner itself is null and void as she has suppressed the factthat her first marriage is still in existence. She invited myattention towards the application filed before the Registrar andsubmitted that in the said application she has submitted that sheis unmarried. It is further contended that, the present Petitionerhas preferred the divorce Petition before the FamilyCourt, which is still pending. It is further submitted that, asthe Respondent is earning by running a tea stall, andtherefore, she is not entitled for any amount towardsmaintenance and with this submission it was prayed that theorder passed by the Family Court deserves to be quashed andset aside.

Per contra, the learned Counsel for the Respondent 5 938.CRI.WP.147-2025.JUDGMENT.odtinvited my attention towards the written statement andsubmitted that the marriage itself is admitted as well as therelationship between the present Petitioner and the Respondentis admitted by the present Petitioner while filing the replybefore the Family Court. She also invited my attention towardsthe fact that even during the cross-examination of the presentRespondent it was brought on record that though she wasearlier married with one Chhatrapati Dhoke in the year 1991but she took her divorce from her first husband. In thecross-examination, a question was put to the presentRespondent as to her earlier marriage, which was admitted butshe has also contended that her marriage is already dissolvedand thereafter she performed the marriage with the presentPetitioner, therefore the marriage between the present Petitionerand the Respondent is a legal marriage. Moreover, the presentPetitioner is working as a driver and drawing amount ofRs. 15,000/- to 18,000/- approximately, therefore he is havingsufficient means to pay the maintenance and no reason is thereto interfere with the order passed by the Family Court.

In support of her contention she placed reliance on 6 938.CRI.WP.147-2025.JUDGMENT.odtShamima Farooqui Vs. Shahid Khan, reported in (2015) 5 SCC705, whereas the learned Counsel for the Petitioner placedreliance on Swapnanjali Sandeep Patil Vs. Sandeep AnandaPatil, decided on 06.03.2019.

On perusal of the Petition it reveals that the orderof interim maintenance was challenged by the Petitioner. Thecontention of the Respondent in the application was that she isa legally wedded wife of the present Petitioner and as thepresent Petitioner has subjected her for ill-treatment and notmade a provision for her maintenance as she was driven fromthe house and she has no source of income, and therefore, she isentitled for grant of maintenance.

Per contra, it is the contention of the presentPetitioner that the marriage itself is not a legal marriage, andtherefore, she is not entitled for maintenance. On perusal of thereply filed on the interim application shows that the presentPetitioner has admitted in a written statement that therelationship is admitted and they are husband and wife, as faras the contention that the marriage itself is null and void is notcontended in the said reply. The certified copy of the evidence of 7 938.CRI.WP.147-2025.JUDGMENT.odtthe present Respondent which is placed on record by thelearned Counsel for the Petitioner shows that she wascross-examined on this aspect and it came in the evidence thatshe has already obtained divorce from the previous husbandand thereafter she performed marriage with the presentPetitioner. Thus, as far as the contention of the presentPetitioner that there was no relationship as husband and wifeand the marriage itself is null and void, is not substantiated byany material. As far as the grant of interim maintenance isconcerned, admittedly the Family Court on the basis of theguess work granted the amount of maintenance.

Learned Counsel for the Respondent rightly reliedupon the decision of Shamima Farooqui (supra), wherein it isheld as under:

Section 125 of Cr.P.C. is a measure of social justice and isspecially enacted to protect women and children and asnoted by this Court in Captain Ramesh Chander Kaushal v.Veena Kaushal falls within constitutional sweep of Article15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is toprevent vagrancy and destitution. It provides a speedyremedy for the supply of food, clothing and shelter to thedeserted wife. It gives effect to fundamental rights andnatural duties of a man to maintain his wife, children andparents when they are unable to maintain themselves. Theaforesaid position was highlighted in Savitaben SomabhaiBhatiya v. State of Gujarat. 8 938.CRI.WP.147-2025.JUDGMENT.odtThis being the position in law, it is the obligation ofthe husband to maintain his wife. He cannot be permittedto plead that he is unable to maintain the wife due tofinancial constraints as long as he is capable of earning.

Learned Counsel for the Petitioner also relies ondecision of Swapnanjali Sandeep Patil (supra). On goingthrough the facts of the cited case it reveals that, it was the intercaste marriage and the fact as to the earlier marriage and themarriage is in existence is not disclosed therein. Thus, the factsof the present case and the facts of the cited case are notidentical, and therefore, it is not applicable to the presentPetitioner.

Now, coming to the aspect of grant of maintenanceto the present Respondent. On perusal of the evidence on recordwhich is adduced in the nature of the application and the replyfiled. Admittedly, the present Petitioner has admitted therelationship by filing the reply, and therefore, the contention ofthe present Petitioner is that the marriage itself is null and voidcannot be entertained in the light of the fact that he has notcontended the same in his reply filed before the Family Court. 9 938.CRI.WP.147-2025.JUDGMENT.odt15.The aspect of grant of maintenance was consideredby the Hon’ble Apex Court in the case of Kiran Jyot Maini Vs.Anish Pramod Patel, (2024) 7 SCR 942, wherein the Hon’bleApex Court has considered the facts as follows:

The status of the parties is a significant factor, encompassing their social standing, lifestyle, and financialbackground. The reasonable needs of the wife anddependent children must be assessed, including costs forfood, clothing, shelter, education, and medical expenses. The applicant’s educational and professional qualifications, as well as their employment history, play a crucial role inevaluating their potential for self sufficiency. If theapplicant has any independent source of income or ownsproperty, this will also be taken into account to determineif it is sufficient to maintain the same standard of livingexperienced during the marriage. Additionally, the courtconsiders whether the applicant had to sacrificeemployment opportunities for family responsibilities, suchas child-rearing or caring for elderly family members, which may have impacted their career prospects.

In another judgment in the case of Rajnesh vs. Neha(2021) 2 SCC 324, wherein the Hon’ble Apex Court haselaborated the broad criteria which is mentioned as below:

i. Status of the parties, social and financialii. Reasonable needs of the wife and dependent children.iii. Qualifications and employment status of the parties. 10 938.CRI.WP.147-2025.JUDGMENT.odtiv. Independent income or assets owned by the parties. v. Maintain standard of living as in the matrimonial home.vi. Any employment sacrifices made for familyresponsibilities.vii. Reasonable litigation costs for a non-working wife.viii. Financial capacity of husband, his income, maintenance obligations, and liabilities.

In the light of the above factors narrated by the Hon’ble Apex Court, if the facts of the present case are takeninto consideration, admittedly the contention of the Petitionerthat the marriage itself is null and void and is not sustainable ashe has already admitted in his reply as to the relationshipbetween them as husband and wife. At the interim stage, prima facie case has to be looked into and the statement of thepresent Petitioner before the Court and the contention of thepresent Respondent while filing the application requires to belooked into, as the relationship itself is admitted by the presentPetitioner, now his contention cannot be considered that there isno matrimonial relationship between them.

The learned Family Court has considered that thepresent Petitioner is earning and drawing an income of 11 938.CRI.WP.147-2025.JUDGMENT.odtRs. 15,000/- to 18,000/- per month as he is working as a driverand on that basis granted maintenance at the rate of Rs. 3,000/-per month. As far as the contention of the present Petitionerthat she is also earning by running a tea stall is concerned, admittedly there is no material to support or substantiate thesaid contention. Even accepting that if the wife is earningsomething for leading her life or for a survival, that itself is notsufficient to deprive her from granting maintenance, merelybecause wife is earning for her livelihood some amount is notsufficient to deny her any further maintenance. As alreadyobserved that the Family Court has considered the income of thepresent Petitioner and thereafter granted the amount ofmaintenance. Admittedly, the prices of the essential commodityare now days touching to the sky, in the said circumstances themaintenance amount granted by the Family Court cannot besaid to be exhaustive, exorbitant and harsh one, and therefore, no interference is called for.