Husband can pay less maintenance if wife earns more than him, rules Bombay HC

Mumbai: In a significant ruling, the Bombay High Court recently ruled that a husband cannot be asked to pay a high amount of maintenance if the wife earns more than him. The HC accordingly, reduced the amount to be paid to a wife from Rs 1,000 to Rs 750.

The important order was pronounced recently by a single-judge bench of Justice Anant Badar while allowing a petition filed by 65-year-old Mehboob Shaikh (changed name), who had challenged the orders of a family court at Solapur.

Solapur court had asked Mehboob, a retired driver with the state transport, to pay Rs 1,000 per month to his wife Dilshad (changed name), who too is a senior citizen.

In his plea, Mehboob claimed that he being a retired driver, was surviving only on a pension from the state. He received amount of Rs 1,700 per month.

The husband further highlighted that his wife, a former employee of a bidi factory, too received a pension of Rs 900. He further apprised the bench of Justice Badar that his wife also received rent of Rs 900 per month, as she had rented one of her rooms.

Accordingly, Mehboob argued that the family court erred in ordering the maintenance amount and also failed to appreciate the facts of the case in a proper sense.

Having considered the material on record, Justice Badar said, "The quantum of maintenance always lies in the discretion of

the trial court. This discretion can be interfered with only when it is shown to be exercised arbitrarily and capriciously."

The bench further said that the family court gave a positive finding on the quantum of maintenance by assessing it to be Rs 1,000 per month.

"However, to my mind, when the income earned by the respective parties is considered, it is apparent that the family court has not exercised discretion, in

awarding maintenance, judiciously," Justice Badar said.

"When the wife, that is, the aggrieved person under the law, as seen from the record, is getting a monthly income of Rs 1,800 as against that of Rs 1,700, which is being

earned by the husband by way of pension, the awarding of a maintenance of Rs 1,000 per month to the wife cannot be said to be a legal and proper exercise of discretion," Justice Badar ruled.

The court further noted that the husband, Mehboob, is more than 65 years of age.

"Therefore, a just and proper maintenance payable by him to his wife would be an amount of Rs 750 per month," Justice Badar held.

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