Del HC | While calculating husband’s income for granting maintenance to wife, can husband’s mother who receives her independent pension and rental income be counted as a dependant to be maintained by husband? HC explains

Delhi High Court: Suresh Kumar Kait, J., while addressing a criminal revision petition concerning a matrimonial dispute expressed that:

“..husband cannot wriggle out of his responsibilities to provide shelter to his wife and minor children.”

Issue: Modified Maintenance Amount to Wife

Petitioner/Husband sought to quash the Family Court’s Order through which maintenance amount was enhanced to Rs 22,000 from Rs 10,000 to respondent/wife.

Wife whereas sought modification of the Order passed by Family Court vide which interim maintenance amount of Rs 10,000 awarded by the trial court had been enhanced to Rs 22,000 while claiming it to be on the lower side.

Both the above-stated issues have been clubbed together and are being disposed of by this common Judgment.

Analysis

Wife claimed that her husband was living a luxurious life, whereas she herself was unemployed and helpless, and had two children, hence she claimed that her husband could easily maintain her and the children, but he has been deliberately neglecting his responsibilities.

In view of the above status of the husband, she claimed interim maintenance of Rs 40,000 per month.

As far as monthly income of the husband was concerned, as per his affidavit of income, he had declared his income as Rs37,418/- p.m., whereas as per ITR for the assessment year his monthly income was Rs 43,305/- p.m. Further, as per credit in bank account, his salary was shown to be Rs 44,560/- p.m, which the trial court had taken into consideration.

According to his salary slip, his total gross pay was Rs 50,003 per month and deduction of Rs 10,249 was made towards the pension scheme, insurance, society membership and repayment of the loan.

Court’s Opinion: Calculating Quantum of Maintenance

High Court opined that the income has to be ascertained keeping in mind that the deductions only towards income tax and compulsory contributions like GPF, EPF, etc. are permitted and no deductions towards house rent, electric charges, repayment of loan, LIC payments etc. are permitted.

In view of the above aspect, Bench referred to the Supreme Court decision in Dr Kulbhushan Kunwar v. Raj Kumari, (1970) 3 SCC 129, which was followed by the Punjab and Haryana High Court in Seema v. Gourav Juneja, 2018 SCC OnLine P&H 3045.

Applying the similar ratio as was in above cases, Court found that while calculating the income of the husband, deduction of Rs 1,000 towards NZRE BH NDLS contribution (which is a kind of saving) and Rs 4,451 NZRE BH Loan, from his gross income of Rs 50,003/-, cannot be permitted. Hence, the husband’s net income in hand comes to Rs 44,552/- p.m. and rounding it off to Rs 44,560.

Argument with regard to accommodation by the husband, that he has to pay rent for the same could not be considered as husband is duty-bound to arrange accommodation for his wife and children who are dependent upon him.

Court also cited the Supreme Court decision in Jasbir Kaur Sehgal v. Distt. Judge, Dehradun (1997) 7 SCC 7.

Trial Court’s Error

Whether the court below was right in dividing husband’s income into six shares while calculating and granting interim maintenance?

Husband’s mother used to receive a pension of Rs 17,199 and medical benefits, etc. and she used to live in three-storeyed building wherein one floor was occupied by her, one by her husband a and another by husband’s brother.

Since the husband pays Rs 8,000 as monthly rent and the same would be the position of the other son of the husband’s mother, her rental income would amount to Rs 16,000.

Even if it’s assumed that the rent agreement placed on record might have been manipulated to save income tax, then also it cannot be lose sight of that mother is receiving a good amount of pension and is thus, financially independent.

Another plea that the husband placed was that he had gotten employment on compassionate grounds when his father passed away, hence he is liable to maintain his mother.

On noting the above, Supreme Court decision on Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353 was referred, wherein it was held that:

“2. Be it ingeminated that Section 125 of the Code of Criminal Procedure (for short “the Code”) was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created whereunder she  is compelled to resign to her fate and think of life “dust unto dust”. It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able-bodied.” 

In view of the above discussion, Court found an error in the trial court’s decision in keeping the mother’s share in the income of the husband.

Hence, in this view of the matter, taking the income of husband @ Rs 44,560/- p.m. and diving it into two shares for him and remaining for his dependants i.e. wife and two children, that is to say by making five shares, each one is entitled to the share @Rs 8912/- (round of Rs 8910/-p.m.). Resultantly, the wife shall be entitled to interim maintenance @Rs 26,736/- p.m. and in round figure Rs 26,000/- instead of Rs 22,000/- p.m.

Bench modified the impugned order in the above terms. [Nitin Sharma v. Sunita Sharma, 2021 SCC OnLine Del 694, decided on 18-02-2021]

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