Husband refuses to maintenance due to unemployment

Question

My husband refuses to pay maintenance due to his unemployment. He left his job 2 months after the filing of my petition under section 125 crpc for maintenance. He was a commission agent in the excise tax department and earning well. I need maintenance for the sustenance of myself and my son.

Question asked on 26/10/2015

Answered by: Advocate Shivendra

You are entitled to get maintenance from your husband, although he refuses merely on the ground of unemployment. It is the paramount duty of the husband to maintain his wife. Section 125 CrPC mandates that a husband must have sufficient means to support his wife. But it does not mean that the husband should leave his job to frustrate the legal right of the wife.

Section 125 is social legislation because the legislature enacted it to save the wife from starvation. Moreover, the Only legally wedded wife is entitled to maintenance under this section. If you prove that the husband is refusing or neglecting to maintain you despite having sufficient mean, then the court will grant alimony.

Your husband may take a plea that he is not working. Therefore, he has no sufficient means. But the word sufficient means not limited to the actual employment. It has a very vast connotation and refers to the earning capacity of an able and prudent man.

However, your husband is unemployed, but still, he can earn. The earning capacity of the husband is enough to prove that he has sufficient means. When he takes the plea that he has resigned from the job, then by default admits the fact that he can earn.

Actual employment is not necessary for considering sufficient means under section 125. Otherwise, every husband may frustrate the object of section 125 by stopping his earnings.

Maintenance includes the supply of food, lodging and other necessary things for leading a dignified life. The husband is under obligation to maintain the same living status of his wife, which he could keep in his home. This is utmost obligation of the husband. Therefore, he has no escape route. It is the sacrosanct duty of the husband to see that his wife would not become destitute.

In Kirtikant D. Vadodaria v. State of Gujarat and another [1996] 4 SCC; Supreme Court is held that the provision contained in Section 125 of the Code, has primary object to give social justice to the woman, child and infirm parents etc. and to prevent destitution and vagrancy by compelling those who can support them.

In Captain Ramesh Chander Kaushal v. Veena Kaushal [1978] 4 SCC; section 125 of the code gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to sustain themselves.

Thus you should file an application for maintenance under section 125 CrPC despite that your husband is currently not employed. His plea will not sustain, and the court will reject it in the first instance. He cannot evade himself from the performance of his matrimonial obligation. You will succeed and get an appropriate monthly allowance in the form of alimony.

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Shivendra Pratap Singh

Advocate, Lucknow

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