Safiya Malik

A recent judicial pronouncement by the Gauhati High Court stated the obligation of an able-bodied husband to provide financial maintenance to his wife, dismissing a plea that sought to challenge the maintenance order on the grounds of unemployment. The court directed the petitioner to continue paying Rs. 25,000 per month as maintenance and to clear arrears within six months.

The petitioner, an aircraft maintenance engineer by profession and previously employed by a private airline, had filed a criminal revision petition challenging an order issued by the Principal Judge, Family Court No. 1, Kamrup (M), in Criminal Execution Case No. 108/2018. The dispute arose from a maintenance case initially filed by the respondent in 2016, which resulted in an order directing the petitioner to pay Rs. 25,000 per month as maintenance.

The petitioner had previously sought relief through Criminal Revision Petition No. 169/2018, where an interim order reduced the maintenance to Rs. 10,000 per month. However, the respondent later withdrew a separate enhancement plea. The petitioner contended that he had been terminated from his employment on May 16, 2019, and had been unemployed since, making it impossible for him to meet his financial obligations.

The petitioner further alleged that the respondent, a practicing lawyer, had sufficient independent income and therefore was not entitled to claim maintenance. He argued that the Family Court had failed to consider his financial hardships before issuing the order dated November 30, 2022, which directed him to pay Rs. 30,000 per month.

The respondent, in response, maintained that the petitioner was irregular in making maintenance payments despite having a stable and well-paying profession. She denied having any independent income and asserted that the petitioner’s financial difficulties were unproven. The respondent argued that the petitioner had deliberately attempted to evade his responsibility by misrepresenting his financial status. She submitted that the petitioner had previously ignored court directives regarding maintenance payments, demonstrating his disregard for legal obligations.

The Gauhati High Court examined the records and observed that the petitioner had persistently defaulted on his maintenance obligations. Addressing the claim of unemployment, the court stated:

"Though the petitioner has raised an issue that he was terminated from his service on 16.05.2019 and since then he has no any regular income, but no any document is available in the record regarding his termination from the Airlines Company."

The court also rejected the argument regarding the respondent’s independent income, noting that:

"The petitioner though stated that the respondent is a practicing lawyer under Gauhati High Court and she has good income but to substantiate the fact, the petitioner has not filed any document to show that the respondent has sufficient income to maintain herself."

Citing several Supreme Court precedents, the court upheld the legal principle that a capable husband must ensure financial stability for his wife. It referred to various precedents where courts have ruled that a husband, even if unemployed, must make efforts to earn and fulfil his legal obligations. The court stated the essence of Section 125 of the Code of Criminal Procedure, which provides a safety net for wives, children, and dependent parents. It quoted a Supreme Court order:

"It is a settled principle of law that the husband is required to earn money by physical labour if he is abled bodied and could not avoid his obligation except on the legally permissible grounds mentioned in the statute. The object of maintenance proceedings is not to punish a person for his past neglect but to prevent vagrancy and destitution of a deserted wife by providing food, clothing and shelter by speedy remedy."

The court noted that in cases of maintenance, an able-bodied husband cannot evade financial responsibility by citing job loss without demonstrating tangible efforts to secure employment or alternative means of livelihood. It further observed that non-compliance with maintenance orders could have significant consequences, including legal repercussions and enforcement actions under execution proceedings.

After reviewing the submissions, the court upheld the original maintenance order of Rs. 25,000 per month while modifying the November 30, 2022, order. It directed:

"The petitioner shall pay maintenance allowance of Rs.25,000/- per month to the respondent wife as per order of the Family Court dated 26.04.2016. However, the entire amount of arrear shall be deposited by the petitioner in the Family Court within 6 (six) months from the date of judgment i.e. from today after adjusting the amount if any already paid or deposited by him."

The court also held that failure to comply with these directives could lead to coercive action under the law. It reminded the petitioner of the consequences of non-payment, including possible contempt proceedings and further penalties.

Case Title: Rajesh Kumar Roy vs. Bibha Rani Das @ Roy
Case Number: Crl.Rev.P./15/2023
Bench: Justice Malasri Nandi

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