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Earning Potential of a woman no sufficient ground to deny maintenance', rules High Court

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The earning potential or actual earning of a woman is insufficient to deny a claim of maintenance, the Bombay High Court has said while upholding a family court’s order granting alimony to a woman who runs a beauty parlour.

Justice NJ Jamadar passed the order on Tuesday in response to a petition by a Pune resident, who challenged the February 7, 2019 order of the family court at Pune that ordered him to pay a monthly maintenance of Rs 15,000 to his ex-wife.

The marriage was solemnised in November 1997 and the couple had no children. The 52-year-old businessman claimed his wife suffered from psychological illness and the marriage couldn’t be consummated because of his wife’s mental condition, even after she was treated by a sexologist.

In April 2007, the couple applied for divorce by mutual consent and the family court in Pune dissolved the marriage by issuing a decree of divorce in October the same year. Four years later, the businessman remarried.

In 2016, the woman applied for maintenance, contending she had no source of livelihood and the man, though having resources, had not made any provision for her. The family court accepted her plea and ordered the man to pay her Rs 15,000 a month.

The businessman then approached the high court, challenging the family court’s order on the ground the lower court didn’t consider that his ex-wife was earning by running a beauty parlour.

Justice Jamadar accepted the husband’s contention and said that against the backdrop of material on record, the family court ought to have accepted the woman’s claim that she had no source of income “with a pinch of salt”.

The material on record suggested the woman was carrying on the business of running a beauty parlour.

  “However, the fact that the wife carries on some business and earns some money is not the end of the matter,” said the judge, adding her earning potential or actual earning is insufficient to deny her claim of maintenance.

“In this era of inflationary economy, where the prices of commodities and services are increasing day by day, the income from a beauty parlour, which has an element of seasonality, may not be sufficient to support the livelihood of the woman, and afford her to maintain the same standard of living as that of her husband,” said the court, upholding her right to maintenance.

The high court, however, reduced the alimony to Rs 12,000 a month.

It also rejected the business man’s argument that his ex-wife relinquished her right to maintenance and it formed part of the consent terms approved by the family court while dissolving their marriage.

“The object of the provisions contained in section 125 of the CrPC cannot be lost sight of. Indisputably the provision is a measure of social justice and its object is to prevent destitution and vagrancy,” said the judge.

The Court remarked:

“The statutory right of wife of maintenance cannot be permitted to be bartered away or infringed by setting up an agreement not to claim maintenance. Such a clause in the agreement would be void under section 23 of the Indian Contract Act, being opposed to public policy."

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