Case Note & Summary
The applicant, Dr. Shahid Rizwan Khan, filed a criminal application under Section 482 of the Criminal Procedure Code, 1973, challenging an order dated 26/08/2010 passed by the Family Court No. 3, Nagpur, in Petition No. E-371/2009. The impugned order granted interim maintenance to the respondents: his divorced wife (respondent no. 1) and their two minor children (respondent nos. 2 and 3) in the sums of Rs. 10,000, Rs. 3,000, and Rs. 2,000 per month respectively. The applicant and respondent no. 1 were married on 21/05/2006 according to Muslim rites, but matrimonial discord led to separation and divorce. The respondents filed an application under Section 125 CrPC claiming maintenance, and interim maintenance was granted via application Ex. 5. The applicant contended that the interim maintenance was palpably excessive, arguing that respondent no. 1 is an educated lady with a D.Pharm degree capable of maintaining herself, while the applicant is a BAMS practitioner with dependents in his family. The respondents supported the order, stating that the final hearing was pending and evidence could be led. The court analyzed the facts and held that the wife's educational qualification and earning capacity must be considered. The court noted that the wife is a D.Pharm graduate and can earn, while the husband's income as a medical practitioner is not precisely known but he has obligations. The court found the wife's maintenance of Rs. 10,000 excessive and reduced it to Rs. 5,000 per month, while maintaining the children's maintenance at Rs. 3,000 and Rs. 2,000 respectively, making a total of Rs. 10,000 per month. The court directed that the arrears be paid in installments and that the husband continue to pay the reduced maintenance. The application was partly allowed.
Headnote
A) Family Law - Maintenance - Section 125 Criminal Procedure Code, 1973 - Interim Maintenance - The court considered whether the interim maintenance of Rs. 10,000 for wife, Rs. 3,000 for elder child, and Rs. 2,000 for younger child was excessive. Held that the wife, being a D.Pharm graduate, has earning capacity and the husband's income as a BAMS practitioner must be assessed. The court reduced the wife's maintenance to Rs. 5,000 per month, while maintaining children's maintenance at Rs. 3,000 and Rs. 2,000 respectively, totaling Rs. 10,000 per month (Paras 1-6).
Issue of Consideration
Whether the interim maintenance granted by the Family Court was excessive and whether the wife's earning capacity should be considered.
Final Decision
Application partly allowed. Interim maintenance for wife reduced from Rs. 10,000 to Rs. 5,000 per month. Maintenance for children maintained at Rs. 3,000 and Rs. 2,000 per month. Total interim maintenance fixed at Rs. 10,000 per month. Arrears to be paid in installments of Rs. 2,000 per month.
Law Points
- Interim maintenance under Section 125 CrPC must be just and reasonable
- considering the income of the husband and the earning capacity of the wife
- Muslim Personal Law does not bar a divorced wife from claiming maintenance under Section 125 CrPC
- the wife's educational qualification and ability to earn are relevant factors
- the husband's obligation to maintain children is absolute.
