Husband is not bound to maintain a well qualified wife who is sitting idle and not working

25. February 2015 Case Briefs, Indian Case Briefs

Family Court, Mumbai: Looking at the burden on the husband to provide maintenance to his wife even in cases
where the wife is well educated and capable enough to earn for her living, a bench of S.A. Morey J gave a
landmark judgment in favour of husband to curb the misuse of the provision of maintenance, and held that a wife
who is well qualified and is capable to earn cannot sit idle and claim maintenance from her husband.

In the instant case, petitioner-wife moved an application before this Court for grant of maintenance from the
respondent-husband during the pendency of petition under Section 125 CrPC. The petitioner alleged that she
was forced to live separately as the respondent and his family members ill-treated and harassed her for bringing
less dowry. The petitioner contended that the respondent is a successful businessman and is doing business not
only in India but also in Dubai and other countries, and that his total income per month is more than Rs. 15 lakhs,
and therefore considering the status of her husband, she prayed for grant of maintenance @ Rs. 2 lakhs per
month.

Firstly, the Court rejected the contention of the respondent that the petitioner is not entitled to get maintenance as
she is not legally wedded wife and that marriage between them was dissolved by way of talaq, and held that
Section 125 CrPC itself has given definition of ‘wife’ which includes divorcee wife and makes clear that a Muslim
woman who is either divorcee or who obtained divorce is entitled to get maintenance till her remarriage, and
therefore respondent’s contention does not affect the right of the petitioner to claim maintenance. Secondly, the
Court observed that the petitioner is well qualified, has completed degree in Food and Science Nutrician, is Post
Graduate in Dietician field, had worked as a dietician with an income of Rs. 50000 per month, and has
experience of working with reputed companies like Larsen and Toubro etc but at present she is not working.

The Court relied on Mamta Jaiswal v. Rajesh Jaiswal, 2000 (3) MPLJ 100, where it was held that “well qualified
wife is not entitled to remain as an idle and claim maintenance from her husband”. The Court noted that the facts
of the present case clearly shows that the petitioner is having good capacity to earn and therefore held that “the
wife who is well qualified and claiming maintenance by sitting idle is not entitled to get maintenance”.
Accordingly, the Court rejected the application filed by the petitioner. [Firdos Mohd. Shoeb Khan v. Mohd. Shoeb
Mohd. Salim Khan, decided on 20.02.2015].

Tags : maintenance

Sanan ( Sunny)

To

Sri Mohd. Habeebuddin, B.Com., L.L.M.,

Advocate,

Door No. 17-1-30/7/1,

R.C. Nagar, Santoshnagar,

Edi Bazar, Hyderabad-23

Telangana State.

Sir,

I have been instructed by my client Shaik. Ayesha Begum w/o Shaik. Mohammed

Shaheer, presently residing with her parents in the D.No. Adrress mentioned in your

notice dt. 12.11.2015 to issue the following reply notice which you have issued on
behalf of your client Shaik. Mohammed Shaheer s/o Shaik. Khader Val, Occu: running

Tagoor School and realter permanent resident of Nirmal Nagar, Kurnool town.

The factum of the marriage, its performance rituals are in the dispute, but the

contention that dowry was not given, no demand was made are all utterly false and

your client is put to stick proof of the same. As a duty bound Muslim Pious wife my

client had joined to the company of your client and had started discharging all the

marital obligations in spite of the harassment perpetrated by your client, his parents

Shaik. Khader Vali, Syed Kamurunnisa, brother Shaik. Mohin, his sister-in-law Shaik.

Habiba Begum, sisters- Nazneen, Parveen Sulthana, brother-in-law Syed Fayaz Ahmmed

and his relative Mahaboob Vali. As such the contention that, from the beginning my

client was dis-obedient, use to insult the family members of your client, was using

ulger language, was harassing them, use to frequently leave the house of your client

without his consent or permission or all utterly false, concocted for the purpose of this

notice, the true fact is that, at the time of marriage on the demand of your client’s

parents the father of my client gave Rs.8,00,000/- as dowry, 25 tolas Gold house hold

articles orth Rs.80,000/-were all given in the presence of elders. The factum of giving

amoun, gold, house hold articles is evident in the photos also, but your client has

suppressed the true facts before you. In fact the photos taken at the time of marriage

also establishes the amount of gold ornaments given to your client and the gold

ornaments given at the time of marriage are as follows :-

1. 1 Necklace

2. Long Necklace ( Rani Haar )

3. Four Bangles

4. Ear Rings

5. Gold Latcha ( Black beeds imbedded in it )

6. Finger Rings , Matingla

7. Sarees 50 in number

8. Trolley Suitcase

9.Jehez Articles

10. Double Cot

11.Dinning Table

12. Dressing Table

13. Almariah

14. Net Cash of Rs8,00,000/

15. Two rings each weighing about one tolas

16. Brauce Let given to your client

17.Suit

The allegation that on 30.05.2015 my client picked up a quarrel with your client

without any cause and left with her clothes without the knowledge and consent of your

clients, his parents etc., making of efforts by your client are all utterly false and

concocted for the purpose of this notice, your client is put strict proof of the same. The

true facts is that, during the month of May my client was in 5th month of her pregnancy

and it is her parents who were providing all the medical amenities to my client and up

till her advanced stage of her pregnancy my client remained in your client’s house

discharging all the marital obligations and attending to all house hold works and

without caring the health condition of my client she was forced to attend to all the

house hold works and my client was also forced attend to all the house hold works and

right from the date of marriage my client was forced to clean the toilets, was forced to

clean the night soil of the children of Parveen Sulthana who is the sister of your client.

And it is your client his sisters, parents sister-in-law, Brothers-in-law have harassed my

client, but my client went on tolerating the mental and physical harassment meted out
on my client anticipating that, there will be some change one day or the other and my

client could live happily only for a period of two months, my client was harassed, was

subjected to mental physical cruelty calling her by nick names, your client used to

allege that, my client is not his choice and used to demand additional dowry and your

client and the other family members were also demanding additional dowry and were

also demanding for the fulfillment of illegitimate demands and the sisters of your client

and other family members were hatching up conspiracies and were instigating your

client to harass my client , to demand additional dowry , to desert my client , to beat

my client and the sisters of your client are all working in Tagore School as such they

were frequently staying in their parental house and were harassing and causing mental

harassment and also physical harassment to my client and finally client had expressed

her inability secure more and more dowry and had also expressed her inability to fulfill

the illegitimate demands of additional dowry and also the demand for the other articles

and finally for delivery it is your client , his parents and other family members who had

sent my client to her parental house and ever since then your client started making

harassment and finally my client gave birth to a Male Baby on 10.09.2015 in Ashwini

Hospital Kurnool and immediately the factum of delivery , birth of a newly born baby

was given by the parents , brother of my client and further that even messages were

also flashed requested your client , his parents and other family members to come and

see the newly born baby but none from the family of your client bothered to come and

see the newly born baby so also to my client and finally my client was discharged and

even after discharge also the same was intimated to your client , to his parents and to

his other family members and your client or any of the family members never bothered

to come and see my client and then newly born baby and as a duty bound father

having sufficient means and having sufficient properties has failed to provide even a

single dress to the newly born baby even then as a duty bound Muslim Pious wife my
client went on tolerating and finally a function was conducted in the parental house of

my client for which personally invitation was extended by the parents of my client but

none of the family members bothered to attend to the said function and on the contrary

my clients parents was humiliated and was abused in a most filthy language by your

client , his parents and other family members and there are several such and similar

instances in which my client was subjected to both mental and also physical harassment

but only certain instances are cited as such on this aspect also your client has failed to

give the complete and total instructions to you and all the above facts clearly and

clinchngly establish that my client never deserted and even now she has lot of love and

affection otwards her husband even now as a duty bound wife she is ready and willing

to join the company of your client Inspite of the harassment meted out of her on her

parents and she is ready and willing to forget and forgive the past as a bad Omen as

such advise your client to come and join the company of my client forthwith and to

discharge all the marital obligations .

The contention of your client that he has pronounced Talaq E Salasa is not in

consonance and the procedure to be adopted which is as follows :-

“Modvat Scheme - Mohamedan Law - Right to Talaq - To husband - He

has to express reasons of Talaq to wife - After this she is given proper time

to change herself - If she does not change herself, husband has to take

second stage of re- conciliation - It is by help of two arbitrators from each

sides - If still grievance exists, then husband has a right to Talaq wife -

Arbitration and conciliation is a pre- Talaq stage. - A divorce by the

husband is Talaq and it has its oral as well as written forms. The oral form

of Talaq can be effected in three modes viz. Talaq-e- Ahsan, Talaq-e-

Hasan, Talaq-ul-Biddat or Talaq-e-Badai. The first two forms are

conditioned and they are accepted to be more civilized but while resorting

to any of these two forms there are conditions precedent and it is not that

the husband is at his free will to resort to any of these modes at any time

and without assigning any reasons. If the husband feels that his wife does

not care for him, she is incompatible, she does not listen to him, she does

not love him, she refuses to cohabit with him, she engages in cruel

behaviour, she in unfaithful or for any other reason, he has the right to

give Talaq to his wife but by following certain procedure. Firstly, he has to

make it known to his wife about any of these reasons and she must be

given time to change her behaviour. If by his direct

conversation/persuasions she does not change her behaviour, the husband

has to resort to the process of conciliation by informing to her father or any

other parental relations. Two arbitrators, one from wife and one from the

husband, are required to be appointed and it shall be the duty of the

arbiters to bring in a settlement between the parties so that they live

together happily and in spite of these efforts having been made if the

discord still persists to an irreparable level there is no alternative but to

separate and it is at this stage that the husband has the right to give Talaq

to his wife. The stage of conciliation with the intervention of the arbiters is

a condition precedent for effecting Talaq either in Ahsan form or Hasan

form. It will be seen that in all disputes between the husband and the wife

the Judges are to be appointed from the respective people of the two

parties. These Judges are required first to try to reconciliate the parties to

each other failing which divorce is to be effected. Therefore, though it is

the husband, who pronounces the divorce, he is as much bound by the

decision of the Judges as is the wife. This shows that the husband cannot
repudiate the marriage at his will. The case must be first referred to two

Judges and their decision is binding. Talaq must be for reasonable cause

and be preceded by attempts at reconciliation between the husband and

the wife by the arbitrators, one from the wife s family and the other from

the husband s. If the attempts failed, Talaq may be affected. In other

words, an attempt at reconciliation by two relations, one each of the

parties, is an essential condition precedent to Talaq”

Your client has not followed the procedure as such the very contention and also the

claim of pronouncement of Talaq is utterly false and the same is not as per the Shariat

and also as per the rulings rendered by different courts of law and the amount of Rs

15,000/ is taken as maintenance amount for the minor and the same cannot be

construed to be towards the Iddat Period amount and the same is not for the Iddat

Period hence the Talaq is void and my client is ignoring the same as the same is not

preceded by prior conciliations as such the same is not binding and even now the

relationship of Husband and Wife is still subsisting and my client is ready and willing to

come and join the company of your client even now by forgetting the past and also

forgiving the same .

The contention of your client on the aspect of taking away gold ornaments on

03.06.2015 is utterly false and my client remained in the house of your client uptill End

of August 2015 and the date of June as mentioned is based on imaginations and

surmizations and even now the entire gold ornaments , jewellary ,silver items her

clothes etc are all still in the house of your client in Kurnool as such advise your client

to refrain from making such frivolous claims and also to refrain from leveling such false

frivolous allegations against my client as leveling such frivolous allegations also

amounts to Cruelty and harassment hence advise your client accordingly .

 Your client is duty bound to maintain my client and also the newly born baby

and he is duty bound , your client is not doing any favour but it is his responsibility to

maintain the wife and newly born baby .

That my client is ready and willing to join the company of your client as such

the question of taking away the items does not crop up and your client has deliberately

given wrong address though he is the permanent resident of Kurnool but he has got

described himself as the resident of Hyderabad and this fact also establishes his

conduct . Once again it is Reiterated that my client is ready and willing to join the

company of your client and further that your client has willfully deserted my client

without any reasonable or probable cause , that my client has been suffering so also

the newly born baby Boy who is named as Abdullah by the father of your client who is

now aged about 70 days and your cloient is duty bound to maintain his wife and the

newly born baby and having willfully deserted my client and the newly born baby it is

not open for your clieht to allege that he has given Talaq to his wife and even this

conduct also establishes the cruel attitude of your client as such Kindly advise your

client to come and join the company of my client and to start discharging all the

marital obligations and to refrain from making such claims and also to refrain from

making such frivolous allegations .Further your client has deserted my

client as such advise your client to pay monthly maintainance of

Rs 15,000/ per month to my client and Rs15,000/ to the newly

born baby until he takes back my client and the newly born male

boy .

Kindly advise your client accordingly .

Advocate