Allahabad High Court
ABHISHEK SHARMAversusSTATE OF U.P. AND 3 OTHERS
- Decided
- Bench
- CHAWAN PRAKASH
Holding
The application under Section 528 B.N.S.S. is dismissed, and the interim maintenance order stands.
Summary
Abhishek Sharma filed an application under Section 528 of the B.N.S.S. challenging an interim maintenance order passed by the Additional Principal Judge of the Family Court under Section 125 of the Criminal Procedure Code, which required him to pay Rs.5,000 per month to his wife and Rs.3,000 each to two other parties. Sharma claimed he earned only Rs.7,000 a month as a labourer and could not afford the ordered amounts. The wife contended that Sharma was actually an advocate and shop owner earning about Rs.60,000 a month and was therefore capable of paying reasonable maintenance. The court examined the parties' statements, noted the presumption that an able‑bodied person can earn sufficient income, and found no cogent evidence that Sharma was unable to meet his legal obligations. Consequently, the application was dismissed as being without merit, leaving the family court's maintenance order intact.
Issues considered
- Whether the interim maintenance order under Section 125 Cr.P.C. is excessive and can be set aside under Section 528 B.N.S.S.
- Whether the applicant's alleged low income is sufficient to discharge his maintenance liability.
Legislation cited
- B.N.S.S. — s. 528
- Code of Criminal Procedure, 1973 — s. 125
Subjects
- maintenance
- Section 125 Cr.P.C.
- interim maintenance
- Section 528 B.N.S.S.
- family law
- ability to pay
- income assessment
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 42517 of 2025
Abhishek Sharma
.....Applicant(s)
Versus
State Of U.P. And 3 Others
.....Opposite
Party(s)
Counsel for Applicant(s) : Nitin Chandra Mishra, Prabhakar Pal
Counsel for Opposite Party(s) : G.A., Santosh Kumar Jaiswal
Court No. - 80
HON'BLE CHAWAN PRAKASH, J.
1. Heard Sri Nitin Chandra Mishra, learned counsel for the applicant, learned
A.G.A. for the State as well as Sri Santosh Kumar Jaiswal, learned counsel
for the opposite party no. 2 and perused the record.
2. By means of this application, the applicant has challenged the order dated
23.09.2025 passed by the learned Additional Principal Judge, Family Court,
Court No. 4, Aligarh in Case No. 857 of 2023 (Smt. Rachana and others Vs.
Abhishek Sharma), under Section 125 Cr.P.C., by which application under
Section 125 Cr.P.C. for interim maintenance filed by the opposite party no. 2
has been allowed and the applicant has been directed to pay a sum of Rs.
5,000/- per month to the opposite party no. 2 and Rs. 3000/- per month each
to the opposite party nos. 3 and 4 as interim maintenance.
3. Learned counsel for the applicant has submitted that marriage of the
applicant was solemnized with the opposite party no. 2 according to Hindu
rites. Two children were born from their wedlock. He is a labourer and he is
earning Rs. 7,000/- per month. He is living in a rented house and he has no
his own house. The opposite party no. 2 is earning Rs. 27,000/- to Rs.
30,000/- per month by stitching work. Learned family court has not taken
into consideration this fact and directed the applicant to pay Rs. 5,000/- per
month to the opposite party no. 2 and Rs. 3000/- per month each to the
opposite party nos. 3 and 4 as interim maintenance. Applicant has limited
resources and he unable to maintain his wife and children. The impugned
order passed by the learned family court is bad in law and is too excessive.
4. Per contra, learned counsel for the opposite party no. 2 opposed the
NA528 No. 42517 of 2025
2
submission made by learned counsel for the applicant and submitted that the
marriage of the opposite party no. 2 was solemnized with the applicant on
10.02.2015 according to Hindu rites and two children were born out of their
wedlock. She was expelled from her matrimonial house on 23.07.2022. The
opposite party no. 2 is residing in parental house with her parent. She is fully
depend upon them. The applicant is practicing advocate in civil court and
also running general store shop with his father. He has also given five rooms
of house on rent and in this way his monthly income is Rs.60,000/- per
month. The learned family court has not committed any illegality in passing
the impugned order.
4. From the perusal of the record, it is evident that the opposite Party No.2 is
the wife of the applicant. Her marriage was solemnized with the applicant on
10.02.2015 according to Hindu rites. Two children were born out of their
wedlock. The opposite party no. 2 is residing in her parental house with her
parent. Applicant is an able bodied person. An able-bodied person has to be
presumed to be capable of earning sufficient money so as to be reasonably
able to maintain his wife and he cannot be heard to say that he is not in a
position to earn enough to be able to maintain her according to the family
standard. No cogent grounds have been canvassed as to why such able
bodied person is unable for reasons beyond his control, to earn enough to
discharge his legal obligation to maintain his wife and children.
5. Present application u/s 528 B.N.S.S. being devoid of merit is accordingly
dismissed.
March 10, 2026
Rmk.
(Chawan Prakash,J.)
Digitally signed by :-
RAM MURTI KUSHWAHA
High Court of Judicature at Allahabad
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