The Allahabad High Court, while allowing a petition of a wife seeking enhancement of maintenance reiterated that 25% of the husband's net salary would be just and proper to be awarded as maintenance to the wife and the amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance.
Brief Facts:
The present revision petition was filed by the revisionist against the order of the trial court which granted a monthly maintenance allowance of Rs.5,000/- to the revisionist from the date of presentation of the application under Section 125 Cr.P.C. The revisionist has prayed for enhancement of maintenance allowance granted by the trial Court in her favour.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the revisionist submitted that this criminal revision has been filed on the point of quantum of maintenance payable to the revisionist contending that it is quite meagre considering the monthly net income of the opposite party No.2 (husband). The averments have been made on behalf of the revisionist that admittedly opposite party No.2 is working in the Indian Navy and he is getting a monthly salary of about Rs.35,000/- to 40,000/- per month. The trial Court may have fixed at least 25 % of the net monthly salary of the opposite party No.2, but the trial Court has awarded a maintenance allowance of Rs.4000/- till date of order, and thereafter, Rs.5000/-, which is on the lower side. It has also been submitted that the trial Court has not given any reason for fixing the aforesaid monthly maintenance allowance payable to the revisionist.
Contentions of the Respondent:
The learned counsel appearing on behalf of the respondent contended that the trial Court has passed the impugned judgment and order on the basis of oral and documentary evidence on record and there is no ground to interference with it. It has also been submitted that interim maintenance was passed ex-parte without considering the contentions raised by the opposite party No.2. The trial Court has rightly granted a reasonable maintenance allowance, which is not liable to be altered. The counsel raised an objection about the maintainability of the criminal revision and contended that the revisionist should have filed an application under Section 127 Cr.P.C. in the trial Court itself for enhancement of the amount of monthly maintenance allowance. It has also contended that since there is a statutory provision for enhancement of the amount of maintenance allowance under Section 127 Cr.P.C., the criminal revision for such enhancement is not maintainable in this Court.
Observations of the court:
The court referred to Section 127 CrPC and noted that the alteration of maintenance allowance under Section 127 Cr.P.C. can be done by the trial Court on the ground of a change of circumstances and in case, the person in whose favour maintenance allowance is passed, assailing the amount of maintenance allowance on the ground that it was fixed against the evidence on record, he/she can file criminal revision to this Court and Court shall has jurisdiction to decide it.
Further, the court referred to the decision in the case of Dr. Kulbhushan Kumar vs. Smt. Raj Kumari, wherein it was held that only statutory deductions as income tax can be reduced from the gross salary, which has to be made compulsory and no deduction is permissible for payment of house rent, electricity charge, the contribution of provident fund, instalments towards payment of loan and expenses for maintaining the car.
The court noted that according to the salary slip of the husband, the gross monthly salary of the husband is Rs.54,684/-, in which a total amount of Rs.20,664/- is deducted and a balance of Rs.34,020 is credited to his account and further the deduction of Rs.20,664/- includes inter alia for house rent and payment of instalment of a personal loan of Rs.9000/- per month. The court stated that the deduction of Rs.9000/- per month made for payment to the monthly instalment of the personal loan is not permissible and it should be added to the net monthly income of the husband to calculate the monthly maintenance amount payable to the wife. It was stated that merely on the ground that a wife is a BA degree holder and has done some professional course, no presumption can be drawn that she is earning sufficient money to maintain herself.
The court further referred to the decision in the case of Kalyan Dey Chowdhury vs. Rita Dey Chowdhury Nee Nandy, wherein it was held that 25% of the husband's net salary would be just and proper to be awarded as maintenance to the wife and the amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance.
The decision of the Court:
The court set aside the impugned order and allowed the prayer for enhancement of maintenance allowance made by the revisionist and observed that she will be entitled to Rs.10,000/- per month, which is approximately 25 % of the next monthly income of Rs.43,020/-, as maintenance allowance.
Case Title: Rakhi @ Rekha vs State of U.P. and Anr.
Coram: Hon’ble Mr. Justice Surendra Singh
Case No.: CRIMINAL REVISION No. - 167 of 2023
Advocate for the Petitioner: Jayant Kumar, Kanhiya Lal Chauhan
Advocate for the Respondent: G.A., Sandeep Kumar Srivastava
Read Judgment @LatestLaws.com
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