Court:BOMBAY HIGH COURT
Bench: JUSTICE Abhay M. Thipsay
MOHAMMED NAIM Vs. SHAIKH SHAZIYA FARHEEN & ANR. On 4 February 2014
Sections 125, 127 — Maintenance — Cancellation — Change in circumstances — Ground — Wife started earning after initial order passed. This was significant change in circumstances, inasmuch, inability of wife to maintain herself is not only relevant, but pre-requisite for entitlement to get maintenance. Maintenance awarded to respondent liable to be cancelled.
1. Heard the learned counsel for the petitioner. Heard the learned counsel for the respondent No.1.
2. Rule. By consent, Rule made returnable forthwith. The Respondents waive service. By consent heard finally.
3. The petitioner is husband of the respondent No.1. He had been paying maintenance to the respondent No.1 and to the minor child of the petitioner and the respondent No.1, in accordance with the orders passed by the Magistrate under the provisions of section 125 of the Code of Criminal Procedure (hereinafter referred to as “the Code”). This maintenance amount had been fixed as Rs. 1,500/- per month, in case of respondent No.1 herein i.e. wife. It is not in dispute that after the order of maintenance was passed i.e. after 9.6.2010, the respondent No.1 started working as a teacher in a school. The petitioner, therefore, filed an application under section 127 of the Code praying for cancellation of the maintenance awarded to the respondent No.1. This application was rejected by the learned Principal Judge of the Family Court.
Being aggrieved thereby, the petitioner has approached this Court by filing present Petition invoking the constitutional jurisdiction of this Court.
4. I have gone through the impugned order.
5. The respondent wife did not adduce any evidence in the course of inquiry, that was held by the Family Court. The petitioner adduced evidence and was cross-examined by the respondent – wife. The Family Court came to the conclusion that the respondent – wife had been getting a net salary of Rs. 7,875/-.
6. However, after coming to this conclusion, the learned Principal Judge of the Family Court did not consider the effect of this circumstance at all. He observed that there was no change of circumstances brought on record successfully, and that, the husband had failed to show that ‘the wife earns handsome salary’, which is sufficient for her livelihood; and that, therefore, it was not established that it was necessary to cancel the order of maintenance.
7. This approach of the learned Principal Judge is patently erroneous and contrary to law.
8. It is an admitted position that when the maintenance order initially came to be passed, the respondent wife was not working. It is also not in dispute that thereafter she started working and started getting a net salary of Rs. 7,875/- per month. This was a significant change in the circumstances in as much as, the inability of a wife to maintain herself is not only relevant, but a pre-requisite for the entitlement to get maintenance. It was, therefore, necessary on the part of the learned Judge to have considered this as a change in circumstances and then to have further considered whether because of this change, the maintenance awarded to her was liable to be cancelled. There was no question of the ‘husband having failed to prove that the wife was earning handsome salary’ but, the question was ‘whether what was proved warranted a modification, or alteration in the maintenance amount or it’s cancellation altogether.’
9. It is made clear that this Court has not expressed any opinion on whether the maintenance order is liable to be cancelled; or even liable to be reduced on account of this change in circumstances, viz :- that the wife has now started earning. What, however, needs to be emphasised is that indeed, there has been a change in the circumstances, which ought to have been appreciated; and the effect thereof ought to be judged for deciding whether to vary, or even cancel the order of maintenance. It is only after taking all the relevant aspects of the matter in to consideration, the learned Judge could have come to the conclusion, whether the maintenance order was liable to be varied or even cancelled.
10. In the result, the impugned order is set aside.
The matter is remanded back to the learned Principal Judge of Family Court for a fresh consideration of the application, in the light of the observations made in this order.
The learned Judge shall give an opportunity to both the parties to have their say in the matter and then pass appropriate further orders in accordance with law.
The learned Judge shall decide the application afresh, expeditiously, and preferably within a period of two months from today.
11. The Petition is disposed of in the aforesaid terms.
12. Rule is made absolute accordingly.