Vimala Mary Jose vs Shaji Jacob

K. Ramakrishnan, J.—Petitioner and counter petitioner in M.C. No. 23/14 have filed the above petitions respectively challenging the interim order of maintenance passed by the Family Court, Ernakulam in M.P. No. 321/14 under Article 227 of Constitution of India.

The common case in both these petitions is that the respondent in the lower court married the petitioner in M.C. No. 23/14 as per custom and while they were living together, the petitioner in that case has become pregnant and thereafter, there was some misunderstanding between them and they have started living separately. The case of the wife is that after separation, no maintenance was paid and she requires huge amounts for meeting her medical expenses during her pregnancy and she requires huge amount to meet the delivery expenses also which she is not capable of procuring. According to the wife, the petitioner is well employed and he is getting not less than Rs. 70,000/- per month. So, according to the petitioner, she is unable to maintain herself and also look after the welfare of the child in the womb for which she requires good amount. So, she filed the petition for maintenance under Section 125 of Code of Criminal Procedure claiming maintenance @ Rs. 15,000/- per month. She also filed Crl. M.P. No. 321/2014 claiming interim maintenance @ Rs. 15,000/- as she requires expenses for delivery which she estimated as Rs. 1,00,000/- and according to the wife, it is the liability of the husband to pay. The respondent in the lower court filed counter contenting that the marriage itself was conducted suppressing the earlier marriage and so, he filed O.P. No. 2363/2013 before the same court for declaring the marriage null and void and that was pending before that court. Further, he was not getting a monthly income as mentioned, but he is getting only Rs. 15,000/- per month. Further, according to him, the petitioner is employed and she is getting income as such she is not entitled to get maintenance. So, he prayed for dismissal of that application. After considering the contention of both the parties, the learned Family Court fixed an amount of Rs. 5,000/- as interim maintenance from the date of order in favour of the wife payable by the husband. The petitioner in the lower court challenged the same on the ground that it is inadequate whereas, the respondent in the case filed petition stating that she is not entitled for any interim maintenance and also in the alternative the amount awarded is excessive.

Heard both sides.

For the convenience sake, I am referring the status of the parties as described in the lower court order.

The Counsel for the petitioner submitted that maintenance does not mean a paltry amount but it must be in consonance with the life style which the wife had enjoyed when she was in the company of the husband and even if they are living separately, she is entitled to maintain that status and the maintenance should be in commensurate with that status and not a minimal amount for the subsistence of the parties alone. He had also submitted that the advertisement itself was made stating that she is a divorcee and in response to the advertisement, the respondent approached the petitioner and thereafter, the marriage was solemnized. So, there is no suppression as claimed. Further, when they were living together, no such allegations were made. He had produced all the documents to show that the earlier marriage was dissolved through court and it is only thereafter, that the advertisement was made and after accepting the respondent''s proposal that the marriage was solemnized in accordance with law. Further, no document has been produced by the respondent to show that she is employed and getting any income. Further, the Counsel for the petitioner also submitted that though the respondent has produced a document before this court in his petition as Ext. P4, he had produced R1(e) to show that, that employment was terminated with effect from 17.04.2014. So, according to the petitioner, the amount awarded by the court below is very low.

On the other hand, the Counsel for the respondent in the lower court who is a petitioner in O.P. Crl. No. 132/14 submitted that the petitioner herself was responsible for the separation and she had misbehaved with him and his parents and further, she had suppressed the earlier marriage and solemnized the present marriage and he had already filed an application for declaring that marriage as null and void and that is pending before the Family Court and further, he had produced documents to show that the petitioner is employed and he is having only less income, not so much income as claimed by the petitioner in the lower court. Further, whether she is capable of maintainable herself etc., are matters to be considered at the time of trial and the lower court was not justified in fixing the maintenance @ Rs. 5,000/- and according to him, she is not entitled to any maintenance at all. Further, he is not liable to pay the delivery expenses in an application filed under Section 125 of Code of Criminal Procedure.

It is an admitted fact that petitioners in both the cases who are petitioner and respondent respectively in the lower court are man and wife and the marital relationship is even now subsisting. The case of the petitioner was that, after marriage when she became pregnant, the attitude of the husband changed and he started ill treating her and so, she was compelled to stay away from the husband. But, according to the husband, she had suppressed the fact of earlier marriage and solemnized the present marriage and a petition for declaration that the marriage is null and void as solemnized by suppressing material fact and in the alternative for dissolution of marriage. In fact, she was misbehaving with him and his parents while she was residing with them. Further, the case of the petitioner was that the respondent is well employed and he is getting a reasonable amount and he is capable of paying more amount than the amount fixed by the lower court as interim maintenance and the interim maintenance amount awarded is palpable.

The fact that they are man and wife and the marriage relationship is still subsisting is not in dispute. It is also settled law that till the marriage is dissolved, there is a liability on the husband to maintain the wife unless he was able to establish by evidence that she is capable of maintaining herself and she is residing separately without any reasonable cause. All those matters will have to be considered at the time of trial of the case. Further, even under Section 125 of Code of Criminal Procedure, even a divorcee wife is also entitled to claim maintenance after dissolution of marriage, provided, she is able to establish that she is unable to maintain herself and she has not remarried and in such circumstances, till remarriage, the former husband is liable to pay maintenance to the ex wife.

The fact that the petitioner was pregnant at the time of filing the application was not in dispute. Further, now both the sides admitted that the delivery is over and she is living with the child now. The respondent has produced a document to show that the petitioner-wife is employed and getting a monthly income of Rs. 22,500/-. The petitioner-wife has produced a document before this court stating that, that employment was terminated. However, I am not at this stage going to the question whether that is sufficient for her to maintain herself or that will absolve the liability of the husband to pay maintenance to the wife who is pregnant at the time when the application was filed.

Further, in the decision reported in Bhuwan Mohan Singh Vs. Meena, , the Honourable Supreme Court has held that maintenance amount will have to be fixed taking into account the status of the parties and also the conveniences and facilities that had been enjoyed by the wife when she was living with her husband and it must be in commensurate with the status of the parties as well. Section 125 of Code of Criminal Procedure is intended to provide maintenance to the neglected wife or a wife who is unable to maintain herself for a sustenance in life till the marriage relationship is dissolved or she is re married after dissolution of marriage. It should not be a luxury as well.

Whether she is entitled to get the delivery expenses as part of maintenance is a question to be considered at the time of trial. Further, delivery expenses need not be considered at the time when the interim maintenance application is considered. But, probably the expenses for looking after her health has also to be taken into consideration for the purpose of fixing the maintenance/interim maintenance as if proper health is not maintained by the pregnant woman, that will have an impact on the health of the child in the womb as well. That aspect has to be considered at the time of fixing the interim maintenance.

In the decision reported in Smitha Vs. Sunilkumar, , it has been observed that merely a because the parents of the wife are affluent and she was living with them is not a ground for declining maintenance to the wife from the husband as she is entitled to get maintenance from her husband and merely because the parents are supporting her is not a ground for denying that right to the wife or exonerate the husband to pay maintenance to his wife and child. Further, what has to be considered is whether she is having independent income of her own to maintain herself and not other aspects. So, considering the circumstances, the fact that the petitioner is entitled to maintenance at this stage is in away proved by the petitioner. Further, on going through the allegations and counter allegations and also considering the fact that no document has been produced by the petitioner to prove the actual income of the husband and he claims that he is having only Rs. 15,000/- month and as considering the fact that the petitioner-wife is pregnant at the time when the application for maintenance was filed, this court feels that the amount of Rs. 5,000/- fixed by the court below as interim maintenance appears to be reasonable and whether she is entitled to get more amount as maintenance and whether the delivery expenses met by her or to be paid by the husband etc., can be decided by the Family Court on the basis of evidence to the adduced while disposing the main maintenance case pending before that court and there is no need to interfere with the same by this court at this stage. Further, considering the fact that the maintenance case is of the year 2014 and the legislative intention was to provide summary disposal and summary relief to the deserted wife, the Family Court is directed to take all earnest attempt to dispose of the case as expeditiously as possible.

With the above direction and observation, the petitions are disposed of.

Office is directed to communicate this order to the concerned court immediately.