In the case of Sanjay Damodar Kale v. Kalyani Sanjay Kale, the Bombay High Court gave the judgment that if the wife is not capable of maintaining herself and the husband has sufficient means to provide the maintenance then the husband must provide maintenance to such spouse, though the quantum of maintenance would be decreased.
The facts of the case are that the husband and wife got married in November 1997 and got mutually divorced in October 2007 but the husband kept on visiting the wife till September 2012. Then the applicant's wife claimed that the husband made no provision for her maintenance and livelihood as she has no source of income and was sustained on the support provided by her father.
The court while giving judgment said- “…the fact that the Applicant had given up her claim for maintenance when the decree for divorce by mutual consent was passed, does not detract materially from her claim as such an agreement not to claim maintenance or waive the right of maintenance as opposed to public policy. The Applicant is a wife, despite being a divorcee, within the meaning of Explanation (b) to section 125(1) of the Code, the agreement to reside separately from the Respondent does not disentitle her from claiming maintenance, held the learned Judge.” Hence, the judges favored the wife and the quantum of maintenance was decreased from Rs. 15000 per month to Rs. 12000 per month because of the fact that she opened a beauty parlor.
By: Shifa Qureshi