Maintenance to wife must be fixed in regard to earning capacity of husband: High Court of Jammu and Kashmir

When a man is ordered by the court to pay maintenance to support his wife who cannot maintain herself, his earning capacity should also be taken into consideration to ensure that he does not become impoverished and unable to look after his own needs. This was held in the judgement passed by a single member bench of the High Court of Jammu and Kashmir consisting of Justice Ali Mohammad Magrey in the case of Ehsan Ali Dar v Nighar Banu [CRM (M) no. 72/2020 , CrlM no. 162/2020 c/w] on 17th June 2021.

The petitioner, Ehsan Ali Dar works as a general site technician at Odeh Asalem Automation Systms in Dubai, United Arab Emirates. He is married to the respondent, Nighat Banu and they have one child together. Living far away from her husband, the respondent felt neglected and the relationship was strained as a result. The trial court granted maintenance of Rs 60,000 per month to the respondent. The petitioner challenged this order on grounds that firstly he was only earning a monthly salary of Rs 57,000 and also needed money to look after himself in Dubai and for his aged parents back home; secondly the petitioner contended that the respondent was taking unfair advantage of the law and did not have a solid case.

The court noted that the respondent had every right to claim maintenance; however it would be very harsh and unreasonable to expect the petitioner to pay more than he earns in maintenance to his wife and child every month. The petitioner has the right to live comfortably in Dubai and also take care of his aging parents which would not be possible if he is ordered to pay an amount of Rs 60,000 in maintenance every month. Hence the petitioner’s contention that maintenance should be fixed only in regard to earning capacity was taken into consideration.

The judgement concluded that “Having said that, this court is conscious of the fact that a lady has to sustain herself and has to maintain the minor child also and they cannot be allowed to live a life of vagrancy, therefore, while keeping in view all these factors and more importantly the inflation ratio in mind, the impugned order is modified by reducing the amount of maintenance to Rs. 25,000/- per month i.e. Rs. 1 0,000/- in favour of respondent no.1 and Rs. 15,000/- in favour of respondent no. 2. The amount of maintenance shall be payable from the date of filing of the application”.

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