Allahabad High Court: In a criminal revision filed against the decision of the Principal Judge, Family Court granting Rs. 25,000 per month as maintenance to wife and two children (opposite parties), Surendra Singh*, J. dismissed the revision application saying that the Family Court had not committed any illegality in fixing to the amount of maintenance. The Court said that the husband’s claim that he pays LIC premium and has loans for two plots in the name of his wife and children cannot be taken into consideration as no such deduction from gross salary is permissible under the law.
Factual Matrix
Upon failed attempts of registering an FIR in person and via post for mental and physical harassment for dowry and refusal to maintain the wife and children, the wife filed an application under Section 125 of the Code of Criminal Procedure (‘CrPC’) stating that her husband is a Constable in CRPF and his earning stood upto Rs. 40,000/- per month in 2018 and that she had no source to maintain herself or her two children. The Family Court granted the wife and each child a maintenance of Rs. 15,000 per month and Rs. 5000 respectively, from the date of the filing of the case.
Analysis
The Court said that there is no dispute between the parties that the parties are married and had two children from the wedlock.
The Court noted that the husband had filed a case under Section 9 of the Hindu Marriage Act, 1955 (‘HMA’) for restitution of conjugal rights at the Family Court, whereinan ex-parte Order was passed and that it was not complied with by thewife. Further, the Court noted that the said ex-parte Order was set aside by the Lok Adalat. Therefore, the Court concluded that the ex-parte judgment and order passed under Section 9 of the HMA was not in force.
While adjudicating whether the wife has a just and reasonable cause to reside away from her husband, the Court affirmed the take of the Family Court and said that the proceedings and allegations leveled by the husband as to stealing of jewellery and other items and running away with his younger brother, were not supported by evidence, and that there was no evidence to show that the wife was living with his younger brother in adultery.
With respect to deciding whether the wife had sufficient income to maintain herself and her children, the Bench referred to Rajathi v. C. Ganesan, (1999) 6 SCC 326, wherein, it was held that the words ‘unable to maintain herself’ would mean the means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after the desertion to survive somehow.
The Court also said that Section 125 was enacted on the premise that it is the obligation of the husband to maintain his wife, children and parents, therefore, it will be for him to show that he has no monetary means to discharge his obligation and he did not neglect or refuse to maintain them or anyone of them.
The Court referred to a Delhi High Court judgment, Chander Parkash Bodh Raj v. Shila Rani Chander Prakash, 1968 SCC Online Del 52 wherein, it was said that, “an able bodied young man has to be presumed to be capable of earning efficient money so as to be able to reasonably maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard.”
The Court cited Rajnesh v. Neha, (2021) 2 SCC 324 which referred to Article 15(3) of the Constitution and said that maintenance laws have been enacted as a measure of social justice to provide succour to dependant wives and children for their financial support, so as to prevent them from falling into destitution and vagrancy.
In order to calculate the relief of the opposite parties, the Court referred to Dr. Kulbhushan Kumar v. Raj Kumari, (1970) 3 SCC 129 which held that only compulsory statutory deductions as income tax can be reduced from the gross salary. No deduction is permissible for payment of LIC, home loan, instalments towards payment of loan for purchasing land or premium of policy of insurance. Thus, the Court said that the husband’s claim that he pays LIC premium and has loans for two plots in the name of his wife and children cannot be taken into consideration as no such deduction from gross salary is permissible under the law.
The Bench noted the Supreme Court’s view that while deciding cases under Section 125 CrPC, the Court shall take only the present income of the husband and wife into consideration for determining maintenance payable to the wife and children.
The Court also said that apart from school fees, money is also required for purchasing books, stationery, conveyance to school and other expenses of the opposite parties and keeping this in regard, the Family Court has justly fixed the allowance payable to the opposite parties.
The Court dismissed the criminal revision for lack of merits and upheld the Family Court’s order granting maintenance and said that there was no illegality, irregularity, jurisdictional error or impropriety in the Family Court’s decision.
[Rana Pratap Singh v. Neetu Singh, 2024 SCC OnLine All 905, Order dated: 29-03-2024]
Judgment Authored by: Justice Surendra Singh
Advocates who appeared in this case :
For the Revisionist: Advocate Ashok Kumar Shukla
For the Opposite Parties: Advocate Chandan Kumar Jaiswal
Buy Code of Criminal Procedure, 1973 HERE
