Capacity to earn does not affect wife’s right to seek maintenance, says Bombay high court

The Mumbai court granted her maintenance of Rs35,000 a month

mumbai Updated: Nov 05, 2017 00:52 IST
Kanchan Chaudhari
Kanchan Chaudhari
Hindustan Times
Bombay high court,Supreme Court,permanent alimony
The woman had approached the Bandra family court, seeking a divorce on various grounds, custody of her two children and monthly maintenance — for herself and the children — from her husband, who lives in Sweden.(HT)

The mere capacity of a woman to earn and support herself does not affect her right to seek maintenance from her estranged husband, held the Bombay high court, while dissolving the marriage of a city-based architect.

“Just because the woman is an architect, this does not mean she is disentitled to seek maintenance,” a division bench of justices Abhay Oka and Anuja Prabhudessai held.

The woman had approached the Bandra family court, seeking a divorce on various grounds, custody of her two children and monthly maintenance — for herself and the children — from her husband, who lives in Sweden.

She approached the high court after the family court rejected her plea for divorce and maintenance for herself, although it granted her custody of the children, who currently live with their father and are studying in Swedish institutes.

The couple told they high court they agreed to the dissolution of their marriage, which the bench carried out. The court, however, reversed the family court order handing over custody of both children to the wife. It allowed the husband to retain custody of both.

Opposing the wife’s plea for monthly maintenance, the man said she was a qualified architect and had four years of work experience before their marriage. He said she was capable of earning and supporting herself by utilising her educational qualifications and was thus not qualified to seek maintenance.

The high court, however, turned down the contention. It referred to the Apex Court’s recent judgement , which held that interim maintenance is conditional upon two requirements — the spouse seeking it does not have an independent income, while the partner has the capacity to maintain her or him.

The high court said the Supreme Court order is applicable to permanent alimony. It said the wife’s claim could not be rejected merely because she can support herself. The judges said the woman had not worked after marriage she stayed home to look after the children.

The court granted her maintenance of Rs35,000 a month. It had granted her maintenance from March 2005 at a different rate. Now, the husband has been ordered to clear the arrears in a year.

First Published: Nov 05, 2017 00:51 IST