A Single Judge Bench of Justice N. J. Jamadar of the High Court of Judicature at Bombay has in the matter of Mr. Sanjay Damodar Kale v. Ms. Kalyani Sanjay Kale and Ors. observed that, even if a divorced woman is running a business and earning out of it, she will be entitled to get maintenance under S. 125 of the Code of Criminal Procedure, 1973. Judgment to this effect was given on May 26, 2020.
Background of the case:
The appellant-husband had challenged the judgment and order passed by Judge, Family Court, Pune, whereby the Judge was persuaded to order payment of an amount of Rs.15,000/- per month to the Respondent-wife from the date of application and an amount of Rs.7,000/- as cost of litigation under section 125 of the Code of Criminal Procedure, 1973 (CrPC).
The marriage of the Couple was solemnized in 1997 in accordance with Hindu religious rites and ceremonies. Wife had claimed before the Family Court that, since the inception of marital life husband had treated her with extreme cruelty. The husband had dropped her at her parental home at Satara in 1999. Despite repeated assurances, the husband had not gone fetch back her to her marital home. Ultimately with the intervention of police wife was allowed to enter her matrimonial home at Pune. Thereafter the Couple had moved out of the matrimonial home and started to reside separately from the in-laws of the wife. In April 2007, the husband had expressed his desire to obtain a divorce from his wife. A decree of divorce by mutual consent was obtained on October 25, 2007. Despite, the decree of the dissolution of marriage, the husband continued to visit his wife and had marital relations as well. From September 2012, the husband had stopped the visits. husband had not made any provision for the maintenance and livelihood of the wife. As wife had no source of income. She was constrained to prefer the application for an award of maintenance at the rate of Rs.50,000/- per month, under section 125 of CrPC.
In his written statement, the husband had claimed that his wife was suffering from psychological illness and thus the marriage could not be consummated. As the marriage could not be consummated on account of the psychological problems, the husband had filed a petition under section 12(1)(a) and section 13(1) (ia) of the Hindu Marriage Act, 1955. He also claimed that his wife was desirous of perusing her carrier and had opened a beauty parlor. Thus, she had become financially independent as she was successfully running the beauty parlor business.
The Judgment of the Court:
The Family Judge was of the view that the fact that wife had given up her claim for maintenance when the decree for divorce by mutual consent was passed, does not detract materially from her claim as such an agreement not to claim maintenance or waive the right of maintenance as opposed to public policy. This was also accepted by the High Court.
In her application, the wife had endeavored to demonstrate that the mutual decree of divorce was obtained by fraud. The husband had given her assurance that the marital bond would continue despite the decree of divorce and it would remain a paper decree. The learned Judge, Family Court was not persuaded to accede to this case of the wife as there was the inaction on the part of wife for almost 9 years to agitate the said grievance of the decree having been obtained by fraud. Relying on Sunita Kachwa vs. Anil Kachwa, reported in III 2014 (DMC) 878 S.C., whereby the Supreme Court had held that, in any event, merely because the wife was earning something, it would not be a ground to reject her claim for maintenance.
Family Court Judge had after considering the situation in the life of husband and the income tax returns filed for the assessment years 2016-2017, 2017-2018 and 2018-2019 as well as the standard of life to which husband was accustomed to, drew a legitimate inference that husband was a man of sufficient means. The husband was also dealing in the business of computer hardware and was maintaining a four-wheeler and a two-wheeler. These findings of the Family Court were approved by the High Court.
Observing that “In this era of inflationary economy, where the prices of commodities and services are increasing day by day, the income from the business of beauty parlor, which has an element of seasonality, may not be sufficient to support the livelihood of the Applicant, and afford her to maintain the same standard of living to which she was accustomed to when she was residing with the Respondent before the marital tie was disrupted by the decree of divorce by mutual consent”, the Court held that wife was entitled to maintenance from husband even if the Applicant still carries on the business of Beauty Parlor and Training Centre and earns some income out of business.
The Court proceeded to award a sum of Rs. 12,000/- per month as financial support to augment the income of the wife.