• Alimony and maintenance eligibility of working wife

I have 3 questions about alimony and maintenance:

1. Does the court consider duration of co-habitation, duration of marriage before separation, cost of living, whether or not there are offspring born in the marriage, and sources of incomes of the spouses in determining the amounts of alimony and maintenance? If so, is there is "generally accepted formula" (I understand that there is no precision here nor an actual "formula", but is there any rough guide many judges OFTEN use)?

2. Husband and wife are living in different cities. Husband earns h and wife earns w.
h > w 
but
h/2 < w
Can it be argued that the "standard of living the wife was used to when living with husband" was supported by h/2 (she wasn't working at the time...so husband's income supported 2 people...husband and wife...so half of husband's income went to supporting wife's standard of living). And since she earns more than h/2, she is already capable of meeting that standard of living?

3. For this particular question, I am NOT seeking opinions, just CITATIONS
I have seen several media reports, e.g.
Maintenance
https://timesofindia.indiatimes.com/city/mumbai/wife-with-income-not-entitled-to-maintenance/articleshow/61600712.cms and https://www.hindustantimes.com/mumbai-news/working-woman-doesn-t-need-maintenance-from-estranged-spouse-bombay-hc/story-LbRuqUWdl9VgezPkl8Q8YN.html 
http://epaperbeta.timesofindia.com/Article.aspx?eid=31804&articlexml=Law-does-not-aid-lazy-wives-waiting-for-[deleted]
Alimony 
https://www.indiatoday.in/india/story/woman-quitting-job-voluntarily-not-entitled-alimony-[deleted]
https://www.hindustantimes.com/india/get-a-job-don-t-rely-on-maintenance-court-tells-woman-seeking-alimony/story-IiQmAwxSEDuxPp6wvPr5lK.html
etc, but have not seen actual HIGH COURT/SUPREME COURT decision citations. Would greatly appreciate if any of the seniors would share such citations.
Asked 1 year ago in Family Law from Hungary
Religion: Hindu

Court does consider income of parties , whether there are any children , duration of marriage , number of dependents etc while awarding maintenance

2) you can argue that wife is highly qualified and working she should not be awarded maintenance

Ajay Sethi
Advocate, Mumbai
66996 Answers
4045 Consultations

5.0 on 5.0

THE COURT OF MS. MADHU JAIN

ADDL. DISTRICT JUDGE

ROHINI COURT : DELHI

M No. 28/07

Sh. Neeraj Aggarwal – Petitioner

Vs.

Mrs. Veeka Aggarwal – Respondent

ORDER

1.. This is an order on application under Section 24 of Hindu Marriage Act filed by the applicant/ wife, respondent in the main case (hereinafter referred to as the applicant) against the non-applicant/ husband, petitioner in the main case (hereinafter referred to as the non-applicant) for grant of maintenance pendentelite and for litigation expenses.

2.. In the application it is stated that the applicant/ wife has no independent source of income and she is not given any kind of maintenance by the non-applicant/ husband to live her life properly and therefore she is facing much hardship in the life. The non-applicant/ husband has flatly refused to maintain her. The non-applicant/ husband is working in a private sector as a Senior Software Engineer HPC in STM Microelectronics Pvt. Ltd., Plot No.1 A, Knowledge Park-2 (near LG Gol Chakkar), Greater Noida and is earning about Rs. 80,000/-pm. He has no other liability and he is not discharging his responsibilities towards the applicant/ wife with ulterior motives to harass and humiliate the applicant/ wife. The applicant/ wife is the legally wedded wife of the non-applicant/ husband and, thus, being a husband, he is bound to maintain the applicant/ wife. The applicant/ wife is fully dependent on the mercy of her parents, who are having other liabilities also and she has no independent source of income to maintain herself. It is, therefore, prayed that the non-applicant/ husband be directed to pay a sum of Rs. 30,000/-pm as maintenance allowance pendentelite to the applicant/ wife and expenses of proceedings.

3.. The application has been contested by the non-applicant/ husband, who in his reply has stated that the applicant/wife is a well qualified graduate Engineer in the field of information Technology and just after the marriage she had joined the service of a private firm and was drawing a handsome salary as initially she was taking Rs. 5000/-pm. Now-a-days she is competent and qualified to earn thousands of rupees per month. She is a qualified trained engineer and she is self stand financially in all respects. The non-applicant/ husband has never neglected or refused to maintain her in any manner and she was duly maintained during her stay in her matrimonial home. The non-applicant/ husband is still ready and willing to provide financial assistance or maintenance if required or needed by her for any purpose in any manner. It is not denied that the non-applicant/ husband is also a qualified engineer and is employed in Greater Noida, U.P. but the actual amount of monthly salary being drawn by him is Rs. 45,000/-pm. It is stated that he has to maintain his retired father and ailing, diabetic mother and old grandmother and also to treat his two married sisters and to look-after his younger unmarried under-education sister of marriageable age as his younger sister is doing B.Ed. from a regular college. He is also paying loan premiums and other household expenses. The applicant/ wife has herself deserted her matrimonial home without any threats or atrocities caused to her by her in-laws and she is not returning to her matrimonial home despite the petition for restitution of conjugal rights filed by the non-applicant/ husband. It is stated that the non-applicant/ husband is publicly and openly as well as warmly welcoming the applicant/ wife to her matrimonial home but she has started demanding maintenance sitting in her parental home to feed her greedy parents and selfish relatives instead of returning to her matrimonial home and to assist the non-applicant/ husband and her other in-laws in her matrimonial home at the time of need. It is stated that the conduct, attitude and nature of the applicant/ wife is of such type that she is not entitled for any maintenance. Further more, she has also filed a separate petition U/s 125Cr. P.C. for maintenance only with a view to get the non-applicant/ husband harassed in a criminal court. It is stated that the applicant/ wife is not a helpless or poor lady and she is not incapable to maintain herself as she is a well qualified engineer and is already an earning hand. She is handing over all her income to her parents. She does not require any monastery assistance from the non-applicant/ husband as she is already having a good bank balance in State Bank of Bikaner & Jaipur at Rohini, Sector-5,Delhi , bearing A/c No. [deleted] and several other bank accounts also. She also has some immovable properties in her name. It is denied that she requires Rs. 30,000/- as maintenance and other charges as prayed. It is, therefore, prayed that the application be dismissed with heavy cost.

4.. I have heard the Ld. Counsel for both the parties and have carefully perused the record.

5.. During the course of arguments it has not been denied by the Counsel for the applicant/ wife that the applicant/ wife herself is an engineer graduate in the field of Information Technology. Ld. Counsel for the applicant/ wife submitted that the applicant/ wife submitted that the applicant/ wife joined the job for some time after the marriage but thereafter due to the marital disputes she is not in a position to pursue her job and has left the same. In her entire application the applicant/ wife has no where stated that she is also an engineer graduate in the field of Information Technology and that she also joined the job after her marriage. Those seeking justice and equity from the Court must come to the court with clean hands. It seems that for obvious reasons and to extract money the applicant/ wife has not disclosed her true qualifications in the Court. The applicant/ wife is an engineer graduate and, therefore, can very well maintain herself and there is no need for her to depend upon the mercy of her parents or on the non-applicant/ husband. The purpose of Section 24 of H.M. Act is not to extract money from the other party and the court should not be a forum to extract the money or to blackmail the other party. In II (2000) DMC 170 titled as Mamta Jaiswal Vs. Rajesh Jaiswal, the Hon’ble Madhya Pradesh High Court has observed as under:-

“Section 24 – Pendente Lite Alimony : Purpose of Enactment : Not meant for supporting idle (Qualified) spouses waiting for ‘Dole’ to be Awarded by her husband – Section 24 has been enacted for purpose of providing monetary assistance to such spouse who is incapable of supporting himself/ herself in spite of sincere efforts – Spouse well qualified to get service immediately with less efforts is not expected to remain idle to squeeze out his/her purse by cut in nature of pendent elite alimony – Wife well qualified woman possessing qualification like M.Sc., M.C. M.Ed – How can such a lady remain without service – lady who is fighting matrimonial petition filed for divorce, cannot be permitted to sit idle and put her burden on husband for demanding – pendente lite alimony from him during pendency of matrimonial petition.”

6.. In I (2001) DMC 19 titled Sangitaben Rasiklal Jaiswal Vs. Sanjay Kumar Ratilal Jaiswal, Mehsana, the Hon’ble Gujarat High Court has held that the wife is entitled for Free Legal Aid and therefore, the Court should keep in mind that wife is entitled for free legal services also.

7.. In the present case the applicant/ wife is a well qualified engineer and, therefore, there is no need for her to sit idle at home waiting for the maintenance from the non-applicant/ husband. In the peculiar facts and circumstances of the case since the applicant/ wife is well qualified and, therefore, can earn handsome amount by working and there is no need for her to be financially dependent upon her parents or on the non-applicant/ husband, she is not entitled for any maintenance. While hearing arguments on the application it was ordered that the maintenance shall be granted to the wife till the disposal of the petition. This sentence in order sheet dated 27.08.2007 only means that the wife is entitled for the maintenance from the date of filing of the application till the disposal of the main petition and not thereafter. It no where reflects that the wife shall be entitled to maintenance I every case come what may.

8.. Therefore, in view of the above said discussion, the application U/s 24 Hindu Marriage Act of the applicant/ wife is dismissed. There shall be no orders as to cost. File be consigned to Record Room.

Announced in Open Court

Dated : 19.09.2007

Ajay Sethi
Advocate, Mumbai
66996 Answers
4045 Consultations

5.0 on 5.0

Smt.Mamta Jaiswal vs. Rajesh Jaiswal 2000(3) MPLJ 100, the High Court of Madhya Pradesh while dealing with identical situation observed that well qualified spouses desirous of remaining idle, not making efforts for the purpose of finding out a source of livelihood, have to be discouraged, if the society wants to progress. For better appreciation, relevant paragraphs of the said decision are reproduced hereunder:-

"In view of this, the question arises, as to in what way Section 24 of the Act has to be interpreted. Whether a spouse who has capacity of earning but chooses to remain idle, should be permitted to saddle other spouse with his or her expenditure? Whether such spouse should be permitted to get pendent lite alimony at higher rate from other spouse in such condition? According to me, Section 24 has been enacted for the purpose of providing a monetary assistance to such spouse who is incapable of supporting himself or herself inspite of sincere efforts made by him or herself. A spouse who is well qualified to get the service immediately with less efforts is not expected to remain idle to squeeze out, to milk out the other spouse by relieving him of his or her own purse by a cut in the nature of pendent lite alimony. The law does not expect the increasing number of such idle persons who by remaining in the arena of legal battles, try to squeeze out the adversary by implementing the provisions of law suitable to their purpose. In the present case Mamta Jaiswal is a well qualified woman possessing qualification like M.Sc. M.C M.Ed. Till 1994 she was serving in Gulamnabi AzadEducation College. It impliedly means that she was possessing sufficient experience. How such a lady can remain without service? It really put a big question which is to be answered by Mamta Jaiswal with sufficient cogent and believable evidence by proving that in spite of sufficient efforts made by her, she was not able to get service and, therefore, she is unable to support herself. A lady who is fighting matrimonial petition filed for divorce, cannot be permitted to sit idle and to put her burden on the husband for demanding pendente lite alimony from him during pendency of such matrimonial petition. Section 24 is not meant for creating an army of such idle persons who would be sitting idle waiting for a „dole? to be awarded by her husband who has got a grievance against her and who has gone to the Court for seeking a relief against her. The case may be vice versa also. If a husband well qualified, sufficient enough to earn, sit idle and puts his burden on the wife and waits for a ?dole? to be awarded by remaining entangled in litigation. That is also not permissible. The law does not help indolents as well idles so also does not want an army of self made lazy idles. Everyone has to earn for the purpose of maintenance of himself or herself, at least, has to make sincere efforts in that direction. If this criteria is not applied, if this attitude is not adopted, there would be a tendency growing amongst such litigants to prolong such litigation and to milk out the adversary who happens to be a spouse, once dear but far away after an emerging of litigation. If such army is permitted to remain in existence, there would be no sincere efforts of amicable settlements because the lazy spouse would be very happy to fight and frustrate the efforts of amicable settlement because he would be reaping the money in the nature of pendent lite alimony, and would prefer to be happy in remaining idle and not bothering himself or herself for any activity to support and maintain himself or herself. That cannot be treated to be aim, goal of Section 24. It is indirectly against healthiness of the society. It has enacted for needy persons who in spite of sincere efforts and sufficient effort are unable to support and maintain themselves and are required to fight out the litigation jeopardizing their hard earned income by toiling working hours

Ajay Sethi
Advocate, Mumbai
66996 Answers
4045 Consultations

5.0 on 5.0

Dear Sir,

There are lot of Judgments on this issue.

Media reports will not work in the Court of Law.

One such Judgment is Vijay Kumar vs Harsh Lata Aggarwal of Delhi High Court where court denied maintenance to a wife who is earning at par with the Husband.

Regards

Rahul Kapoor
Advocate, Lucknow
24 Answers

Not rated

hello

sir as far the answer to your 1st question is concerned, you have answered the question yourself. besides what you have mentioned, the courts also see to it that no party takes advantage of its own wrong. the party who is in an adulterous relationship has cheated, abused the other often, was cruel, indifferent etc. cannot take advantage of the other. no cut and dried formula can be stated here and it all depends upon the facts and circumstances of the case, your lawyers' competence, the judges' mind.

2. Husband and wife are living in different cities. Husband earns h and wife earns w.h > w. this is sufficient to prove that she will NOT get maintenance because it is immaterial whether she earns more than the husband or not, the relevant question is, whether she can maintain a standard of living which she was used to before marriage, and she can support herself and live with dignity. if the answer is yes, no maintenance. will provide you with decisions.

regards

Rahul Mishra
Advocate, Lucknow
4340 Answers
11 Consultations

5.0 on 5.0

1. While granting of maintenance only the respective income and standard of living of husband is taken into account. The duration of marriage is no consideration.

2. Now if the husband is living in abroad then his higher expenses in overseas is also considered taking into account the rule of Purchase Power Parity.

Devajyoti Barman
Advocate, Kolkata
17816 Answers
253 Consultations

5.0 on 5.0

1. There is no yardstick to measure the quantum of alimony or maintenance amount.

The duration of marriage is also not a criteria for granting maintenance.

If the petitioner/wife is employed and earning a handsome income as salary then the court may reject her claim for maintenance by dismissing her petition, but this has to be proved before court substantially.

If she is unemployed and the fact of marriage between them has been established and also if she proves his salary details with evidence, then the court may pass an order granting at least 25% of the take home salary.

2. If there is a parity in their income and has been proved before court i.e., if the wife proves before court about the status of the husband and claims equality in the status then on the basis of the evidences produced before court to its satisfaction, the court at its discretion may grant maintenance to the working women/wife in order to maintain th equal status.

T Kalaiselvan
Advocate, Vellore
56740 Answers
705 Consultations

5.0 on 5.0

1. While deciding maintenance under section 125 of the Cr.P.C. the court usually gives 1/4th salary to the wife who is unable to maintain herself.

2. You may make this argument, but since the section 125 favors women courts are never inclined to deny the maintenance. However, the defense as stated by you is a decent defense to take.

3. Yes that is true that the courts are denying maintenance to those wife who are not able to maintain herself.

You may please consult a lawyer with the documents in detail to get a more concrete advise.

Regards

Anilesh Tewari
Advocate, New Delhi
16920 Answers
259 Consultations

5.0 on 5.0

1. Ordinarily the Court will award an amount which is in between 1/3rd to 1/4th of the Husband's net monthly earnings which excludes statutory expenses, chronic medical expenses for self and dependents and includes income from interest from FDs or income from House Properties etc.

2. If the gross income of the wife is less than 1/3rd or 1/4th of Husband's net monthly earnings, the difference between the said 1/3rd or 1/4th of Husband's net monthly earnings less the gross monthly earning of the wife will be considered as the amount of alimony to be warded to the wife for maintaining her life style according to the standard of her Husband.

Krishna Kishore Ganguly
Advocate, Kolkata
22519 Answers
595 Consultations

5.0 on 5.0

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