The counter petitioner in M.C. No.110 of 2013 on the file of the Family Court, Irinjalakuda is the revision petitioner herein. The respondent herein who is the wife of the revision petitioner filed this application for getting maintenance under Sec.125 of the Code of Criminal Procedure (for short, ‘ The Code’). The case of the petitioner in this petition is that she married the revision petitioner on 20.05.2012 and they were living as husband and wife for a short period. Earlier, she was working in a hospital but, she does not have any job now. The respondent is working abroad and he is doing business and also working as a Karate instructor and getting an income not less than Rs.40,000/- per month. She requires Rs.10,000/- for her maintenance. She has no other means to maintain herself. In spite of the capacity to maintain her, the respondent is not providing any maintenance and she had to leave the house on account of the cruelty met by her and she filed a complaint before the Police and a crime was registered. So she prayed for allowing the application.
2. Respondent appeared and filed counter affidavit admitting the marriage but, denied the allegations in the petition that he is working abroad and getting Rs.40,000/- per month. He also denied the allegation that he is getting income by doing the job as a Karate Instructor. In fact, the respondent is a BSC nursing graduate with MBA and she is well qualified and she is the opportunity to get another job. She is working as a nurse in a hospital situated in Coimbatore. Earlier he was working in a spare parts company and after marriage, he was awaiting chances to return to gulf. But in the meantime, on account of the complaint filed by the respondent, he could not go. She is not entitled to get any maintenance. So he prayed for dismissal of the application.
3. The respondent herein was examined as PW1 and the revision petitioner was examined as RW1. After considering the evidence on record, the Court below found that the respondent is entitled to get maintenance from the revision petitioner and directed him to pay maintenance at the rate of Rs.3,500/- per month from 21.05.2013 onwards. Dissatisfied with the same, the present revision has been filed.
4. Since the respondent appeared in the delay condonation application and expressed willingness to appear in the revision also this court felt that this revision can be admitted, heard and dispose of today itself. So the revision is admitted, heard both sides and disposed of today itself.
5. Learned counsel for the revision petitioner vehemently argued that the respondent herein is not entitled to get any maintenance as she is a well qualified nurse with MBA degree and she is entitled to get employment. She had admitted in her evidence that she was working at the time of marriage and thereafter she left the job and she had also admitted that she will get a job on account of her qualification. He had also submitted that he was working abroad earlier but after marriage, he could not go abroad on account of the false complaint filed by the respondent. He is not having any income and the lower Court has not considered this aspect while considering the liability of the respondent to pay maintenance to the wife. Maintenance awarded is excessive.
6. Learned counsel for the respondent submitted that merely because she is a nursing graduate with some qualification is not a ground to deny maintenance as admittedly she is not having any job at present and the revision petitioner comes from a well to- do family and the maintenance will have to be provided in commensurate with their status at the time when they were living together and it must be reasonable as well. The Court below had considered these aspects and awarded a reasonable maintenance.
7. It is an admitted fact that the revision petitioner married the respondent on 20.05.2012 as per custom and they lived as husband and wife for some time and thereafter, due to difference of opinion, they started living separately. It is also in away admitted and seen from the order that the revision petitioner had filed an application for declaring the marriage null and void and that is pending before the Family Court. That itself shows that the respondent is not responsible for not living together and she is fully justified from living separately from her husband. Further, there is no ground taken by the revision petitioner that he is prepared to maintain the respondent if she comes and lives with him. So under the circumstances, the Court below was perfectly justified in coming to the conclusion that the respondent is perfectly justified in living separately and the revision petitioner has neglected to maintain her. Till the marriage is declared as null and void, it can only be presumed that it was subsisting. Till the marriage is dissolved or declared as null and void, the liability to pay maintenance to the wife by the husband will continue. So, merely because an application for declaring the marriage null and void is pending is not a ground to deny maintenance to the respondent herein.
8. It is true that PW1 had admitted that she is a nursing graduate with MBA degree. It is also in away admitted by her that she was working as a nurse earlier but after marriage, she did not pursue her employment and now she does not have any employment. Revision petitioner, though had a case that she is now employed and getting any income, had not produced any documents to prove this fact.
9. The decision reported in Sunitha Kachwaha and Others V. Anil Kachwaha [2014 (4) KHC (SN) 15 (SC)], the Honourable Supreme Court has held the fact that the wife is a qualified post graduate would not be sufficient to hold that she is in a position to maintain herself. Merely because the wife is earning something that also would not be a ground to reject her claim for maintenance. So merely because she is having some qualification does not mean that she is capable of maintaining herself. Qualification will not provide food or cloth to meet her necessities unless she got employment on account of the qualification and earn something which is required for meeting her requirements. However, getting some amount as salary also is not sufficient to deny maintenance if it is proved that, that amount is not sufficient to meet her requirements as well. So the submission made by the learned counsel for the revision petitioner that since she is a qualified nurse with MBA degree she is entitled to get employment and earn herself is not a ground to deny maintenance to her as rightly observed by the Court below.
10. As regards the capacity of the petitioner to pay the amount, it was admitted by him that he was working abroad for more than nine years before marriage and it was in any way admitted by him that he is a Karate brown belt holder. According to him, after marriage he could not go abroad on account of a Criminal case filed against him as his passport has been surrendered. But that does not mean that he cannot do any work and earn a reasonable amount as his income so as to provide maintenance to his wife. He had no case that he is permanently disabled from doing any work also. Being a Karate brown belt holder it cannot believe that he will be simply keeping quite without doing any work. Further, it is seen from the evidence that both the petitioner and the respondent are coming from respectable families. So maintenance will have to be provided in commensurate with their status as well.
11. Taking into account all these aspects, it cannot be said that the respondent is unable to earn anything to maintain his wife and the amount of Rs.3,500/-(Rupees three thousand five hundred only) fixed by the Court below under the circumstances cannot be said to be excessive. So there is no merit in this revision petition. The same is liable to be dismissed.
In the result, the revision fails and the same is hereby dismissed.
Sd/-
K. RAMAKRISHNAN JUDGE / True Copy / NS P.A. To Judge