Mukesh Kumar vs Rekha Rani And Another

Jaishree Thakur, J

Challenge in the present revision is to the order dated 08.11.2016 passed by learned Sessions Judge, Panipat whereby the revision petition filed by

respondents has been allowed and maintenance of Rs. 4,000/- per month awarded to the respondents by the Judicial Magistrate Ist Class, Panipat has

been enhanced to Rs. 15,000/- per month.

In brief, the facts as stated are that the petitioner solemnized a marriage with respondent No.1 Rekha Rani on 11.02.2010, out of which wedlock a

minor daughter Naina â€" respondent No.2 was born. The respondent-wife alleged harassment at the hands of her husband, the petitioner herein, for

not fulfilling a demand to bring a car and on account of this, she was subjected to cruelty and eventually turned out from her matrimonial home in

October, 2011. The petitioner filed a petition under Section 9 of the Hindu Marriage Act for restitution of Conjugal rights and the respondent wife

appeared there and made a statement on 11.04.2012 that she was ready and willing to reside with her husband, however there was no change in his

behaviour. She was eventually thrown out of her matrimonial home at the time when she was three months' pregnant. She gave birth to a female child

at her parental home. On account of the fact that she was unable to sustain herself and her minor child, she filed a petition for grant of maintenance

under Section 125 Cr.P.C. The matter was contested denying all the allegations therein while submitting that the respondent wife had herself

withdrawn from his company without any reasonable cause. It was stated that the wife was earning about Rs. 10,000/- per month while doing tailoring

work and taking tuition. The Judicial Magistrate Ist Class, Panipat on consideration of the evidence adduced held the complainant wife and the minor

child entitled to maintenance @ Rs. 3,000/- and Rs. 1,000/- per month, respectively from the date of filing of the petition. Against the said order of

maintenance, the complainant-wife and minor daughter preferred a revision before the Sessions Judge, Panipat, who enhanced the maintenance from

Rs. 3,000/- and Rs. 1,000/-, respectively to Rs. 12,000/- per month to be paid to the complainant wife and Rs. 3,000/- per months to the minor

daughter. This order dated 08.11.2016, was challenged by the husband by filing a petition before the High Court i.e. CRM-M-3058-2017, which was

dismissed as withdrawn on 10.08.2017 on a statement made by the petitioner that efforts were being made for an amicable settlement of the entire

dispute between the parties. After the dismissal of the said petition, the instant criminal revision has been filed with an application for condonation of

delay of 310 days in filing the revision petition.

Mr. Animesh Sharma, learned advocate appearing on behalf of the petitioner contends that since there were chances of settlement being negotiated

between the parties and that is why the petition under Section 482 Cr.P.C. i.e. CRM-M-3058-2017 was dismissed as withdrawn. It is only thereafter

when settlement failed, that the petitioner was constrained to file this revision petition. It is further contended that the petitioner herein is an

Agriculture Development Officer and his gross earning is Rs. 49,339/- per month. The salary slip as annexed with the record as Annexure P-6 would

show that after deducting an installment of Rs. 9701/- towards housing loan, income tax of Rs. 2500/-, contribution towards National Pension Scheme

(NPS) of Rs. 4715/- and miscellaneous recovery of Rs. 1,000/-, net salary of the petitioner is Rs. 31,363/- out of which he is, in fact, paying Rs.

12,165/- towards personal loan, Rs. 3,656/- for second personal loan for financing brother's marriage and Rs. 4,200/- towards a car loan from SBI,

therefore, after all deductions he is left only Rs. 11,342/- per month and, therefore, is not able to pay a sum of Rs. 15,000/-per month as maintenance.

It is also argued that the payment of the enhanced maintenance from the date of filing of the petition under Section 125 Cr.P.C. is also not sustainable.

In fact, in case the order of maintenance is silent regarding payment from the date of the petition, it has to be construed that payment has to be made

from the date of the order.

Per contra, Mr. Harkesh Manuja, learned counsel appearing on behalf of the respondents argues that there is no proper explanation of delay of 310

days in filing the revision petition. In fact, no such effort had been made to settle the dispute, rather the petitioner filed a petition under Section 13 of

the Hindu Marriage Act for dissolution of marriage before the Sessions Judge, Panipat. It is also argued that the conduct of the petitioner is such that

he would not be entitled to any relief from this Court on account of the fact that the petitioner on an earlier occasion had made a statement and given

an undertaking to deposit all arrears of maintenance but failed to do so and is continuously avoiding making payment of maintenance. It is also argued

that the payments that have been made towards personal loans taken, cannot be excluded from his source of income.

I have heard learned counsel for the parties and perused the record of the case.

Admittedly, a marriage was solemnized between the parties, out of which wedlock a minor child was born. There has been a series of litigation

between the parties amongst them being FIR No. 863 dated 17.11.2012 registered under Sections 498-A, 323, 406 and 506 IPC, a petition under

Section 9 of the Hindu Marriage Act as well as a divorce petition under Section 13 of the Hindu Marriage Act. These proceedings arises out of the

order passed in a petition filed under Section 125 Cr.P.C. wherein the amount of maintenance made payable to the respondents herein has been

enhanced from Rs. 3,000/- to the respondent wife and Rs. 1,000/- per month of the minor child to Rs. 12,000/- and Rs. 3,000/- respectively from the

date of the petition.

The first question that has to be dealt with is whether the instant criminal revision would be maintainable in view of the fact that the petitioner herein

had already approached this Court by filing a petition under Section 482 Cr.P.C. i.e. CRM-M-3058-2017, which was dismissed as withdrawn on the

ground that there was a possibility of an amicable settlement between the parties.

An application has been preferred seeking condonation of delay of 310 days in filing of the present criminal revision and an objection has been taken

that a second revision petition is not maintainable under Section 125 Cr.P.C. The first petition i.e. CRM-M-3058-2017 had been filed invoking the

inherent powers of the Court under Section 482 Cr.P.C. whereas the instant revision has been filed under Section 401 Cr.P.C. by the husband against

the order enhancing maintenance which is a statutory right available to him. Section 401 Cr.P.C. of the Code gives the power of revision to the High

Court.

The basic object behind the Code in section 401 is to empower the High Court to exercise the powers of an Appellate Court to prevent failure of

justice in cases where the Code does not provide for appeal. The power, however, is to be exercised only in exceptional cases where there has been a

miscarriage of justice owing to a defect in the procedure or a manifest error on the point of law, excess of jurisdiction, abuse of power. Moreover the

petitioner herein has a right to contest the order of enhancement which was allowed on an revision filed by the respondent wife. There was no

adjudication of the rights of the petitioner in proceedings that had been withdrawn. Therefore, the revision petition is maintainable. The argument

raised that the conduct of the petitioner is such that the delay should not be condoned, cannot be a ground to deny him relief if it can be established

that there was sufficient cause in not filing the revision within time. The delay in filing the revision has to be explained. It is submitted that the delay

was on account of trying to effect a compromise with the respondent -complainant which did not fructify. The CRM-M-3058-2017 was filed within

time and got dismissed as withdrawn on 10.08.2017 and thereafter the instant petition has been filed after compromise talks failed. Therefore, the

delay can easily be condoned since the petitioner was not negligent or tardy in pursuing his case.

The second question that requires to be considered is whether the Sessions Judge has erred in enhancing the maintenance payable from Rs. 4,000/-

per month to Rs. 15,000/- per month. The quantum depends upon the status of the parties including financial position of the husband and the

reasonable demands of the claimant. Various factors have to be taken into consideration while determining the quantum of maintenance payable. It is

submitted that the petitioner herein is paying income tax, contribution towards National Pension Scheme and apart from this, is alsopaying a car loan

and two personal loans and, therefore, after deductions has only an amount of Rs. 11,342/- in hand which is not sufficient to pay maintenance of Rs.

15,000/- as assessed by the Sessions Judge, Panipat. It is argued that only Rs. 11,342/- in hand, it is not possible for the petitioner to sustain himself, his

brother and his wife.

Section 125 Cr.P.C. stipulates that if any person having sufficient means neglects or refuses to maintain his wife, his legitimate or illegitimate

minor child, who are otherwise unable to maintain themselves, shall be obligated to do so. A moral duty and a statutory obligation is cast upon the

husband to maintain his wife, minor children, parents who otherwise are not capable of maintaining themselves. A person cannot be permitted to

wriggle out of his statutory liability by way of availing huge loans and reducing a substantial amount of his salary for repayment of the same every

month. Deductions that are made from the gross salary towards long term savings, which a person would get back at the end of his service and such

as deductions towards Provident Fund, General Group Insurance Scheme, L.I.C. Premium, State Life Insurance can be deemed to be an asset that he

is creating for himself. In arriving at the income of a party only involuntary deductions like income tax, provident fund contribution etc. are to be

excluded. Therefore, such deductions cannot be deducted or excluded from his salary while computing his “means†to pay maintenance. In the

case of Dr. Kulbhushan Kunwar v. Raj Kumari 1971 AIR (SC) 234 while deciding the question of quantum of maintenance to be paid, the argument

raised that deduction not only of income-tax but also of house rent, electricity charges, the expenses for maintaining a car and the contribution out of

salary to the provident fund of the appellant was not allowed. Only deductions towards income-tax and contributions to provident fund which had to be

made compulsorily were allowed. The relevant portion of Dr. Kulbhushan Kunwar's case (supra) reads as under :-

“19. It was further argued before us that the High Court went wrong in allowing maintenance at 25% of the income of the appellant as found by

the Income Tax Department in assessment proceedings under the Income Tax Act. It was contended that not only should a deduction be made of

income-tax but also of house rent, electricity charges, the expenses for maintaining a car and the contribution out of salary to the provident fund of the

appellant. In our view some of these deductions are not allowed for the purpose of assessment of “free income†as envisaged by the Judicial

Committee. Income Tax would certainly be deductible and so would contributions to the provident fund which have to be made compulsorily. No

deduction is permissible for payment of house rent or electricity charges. The expenses for maintaining the car for the purpose of appellant's practice

as a physician would be deductible only so far as allowed by the income-tax authorities i.e. in case the authorities found that it was necessary for the

appellant to maintain a car.â€​

In a nutshell, a husband cannot be allowed to shirk his responsibility of paying maintenance to his wife, minor child, and parents by availing loans and

paying EMIs thereon, which would lead to a reduction of his carry home salary.

In the present case, the carry home salary of the petitioner after deduction of installment of housing loan, income-tax, National Pension Scheme is

only Rs. 31,363/- and rest of the deductions that have been made are towards personal loans taken. The contention raised that he has the responsibility

of looking after his brother and the wife of his brother, is not sustainable. Neither brother nor his wife are dependent upon the petitioner herein,

whereas the respondents are. Deduction from the gross pay would only be those which are statutorily allowed. Any repayment of loans taken for the

marriage of the brother of the petitioner, EMI @ Rs. 4,200/- towards a car loan from SBI, or personal loan taken to pay maintenance as alleged,

cannot be used as a legitimate deduction from his net salary.

The question of quantum had been decided by the Hon'ble Supreme Court in Kalyan Dey Chowdhury vs. Rita Dey Chowdhury Nee Nandy,

(2017) 14 Supreme Court Cases 200, wherein it has been held that 25% of the husband's net salary would be just and proper to be awarded as

maintenance to the respondent-wife. The petitioner herein has a responsibility towards his wife and the minor child and, therefore, keeping in view the

carry home salary of the petitioner to be Rs. 31,363/- the maintenance amount payable to the respondent wife would be Rs. 7,000/- and Rs. 4,000/-

per month to the minor daughter .

The counsel for the petitioner has submitted that the amount of maintenance has to be assessed from the date of passing of the order. The JMIC,

Panipat while deciding maintenance, had awarded that the amount would be paid from the date of the application, and in revision filed by the wife, the

maintenance was enhanced to Rs. 15,000/- per month, however the order was silent as on what date the same would be made effective. Whereas

counsel for the respondents submits that the enhancement too would be from the date of the application and failure to mention would not make it

payable from the date of the order.

Section 125(2) stipulates 'Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for

maintenance.’

The supreme court in the matter of Shail Kumari Devi v. Krishan Bhagwan Pathak (2008) 9 SCC 632 decided the question “whether the

applicant-wife and her daughter are entitled to maintenance from the date of the order passed by the Family Court or from the date of application

made by them under Section 125 of the Code†and after much deliberation held “We, therefore, hold that while deciding an application under

Section 125 of the Code, a Magistrate is required to record reasons for granting or refusing to grant maintenance to wives, children or parents. Such

maintenance can be awarded from the date of the order, or, if so ordered, from the date of the application for maintenance, as the case may be. For

awarding maintenance from the date of the application, express order is necessary. No special reasons, however, are required to be recorded by the

Court. In our Judgment, no such requirement can be read in sub section (l) of Section 125 of the Code in absence of express provision to that

effect.â€​ Further Hon'ble the Supreme Court in the case referred as Jaiminiben Hirenbhai Vyas & Anr vs Hirenbhai Rameshchandra Vyas & another

(2015)2 SCC 385 held :-

“5. Section 125 Cr.P.C., therefore, impliedly requires the court to consider making the order for maintenance effective from either of the two

dates, having regard to the relevant facts. For good reason, evident from its order, the court may choose either date. It is neither appropriate nor

desirable that a court simply states that maintenance should be paid from either the date of the order or the date of the application in matters of

maintenance. Thus, as per Section 354(6) CrPC, the court should record reasons in support of the order passed by it, in both eventualities. The

purpose of the provision is to prevent vagrancy and destitution in society and the court must apply its mind to the options having regard to the facts of

the particular case.

In Shail Kumari Devi v. Krishan Bhagwan Pathak (2008) 9 SCC 632, paras 39-41 this Court dealt with the question as to from which date a

Magistrate may order payment of maintenance to wife, children or parents. In Shail Kumari Devi this Court considered a catena of decisions by the

various High Courts, before arriving at the conclusion that it was incorrect to hold that, as a normal rule, the Magistrate should grant maintenance only

from the date of the order and not from the date of the application for maintenance. It is, therefore, open to the Magistrate to award maintenance

from the date of application. The Court held, and we agree, that if the Magistrate intends to pass such an order, he is required to record reasons in

support of such order. Thus, such maintenance can be awarded from the date of the order, or, if so ordered, from the date of the application for

maintenance, as the case may be. For awarding maintenance from the date of the application, express order is necessary.â€​ (emphasis supplied)

There is no such express order passed by the Session Judge, Panipat in respect to allowing maintenance from the date of the petition. Argument

raised by counsel that the order so passed is in continuation to the order of the JMIC, can not be sustained in view of the fact that judgment rendered

in Jaiminiben Hirenbhai Vyas & Anr (Supra) relying on Shail Kumari Devi v. Krishan Bhagwan Pathak (2008) 9 SCC 632, specifically hold that

failure to specify the date from when payment will become due would necessarily mean that it would be from the date of the order.

Resultantly, the maintenance amount of Rs. 15,000/- per month to the respondent wife and the minor daughter being excessive is reduced to Rs.

11,000/- per month and the impugned order is modified and this revision is partly allowed. The maintenance of Rs. 11,000/- per month is payable to the

respondents on or before 10th of every succeeding English calender month and that too from the date of the order as passed by the Addl. Sessions

Judge, Panipat.

Petition stands allowed accordingly.