Allahabad High Court
Ramesh Chauhan vs Braj Lata on 12 November, 2024
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:177325-DB
Court No. - 39
Case :- FIRST APPEAL No. - 1134 of 2023
Appellant :- Ramesh Chauhan
Respondent :- Braj Lata
Counsel for Appellant :- Ashutosh Kumar Tiwari,Ram Bilas Yadav
Counsel for Respondent :- Bindu Kumari
Hon'ble Saumitra Dayal Singh,J.
Hon'ble Donadi Ramesh,J.
1. Heard Sri Ram Bilas Yadav, learned counsel for the appellant and Ms. Bindu Kumari, learned counsel for the respondent.
2. Mediation has failed.
3. The present appeal has been filed under Section 19 of the Family Courts Act, 1984 arising from the judgment and order dated 15.04.2023 passed by Additional Principal Judge, Family Court, Gautam Budh Nagar, in Divorce Petition No.1022 of 2022 (Ramesh Chauhan Vs. Braj Lata) whereby the learned court below has awarded interim maintenance allowance in favour of the respondent at the rate of Rs.17,000/- per month from the date of her application i.e. 03.01.2023.
4. Submission of the learned counsel for the appellant is, the respondent was drawing handsome income of Rs.25,000/- per month as was established before the learned court below on the strength of the income tax returns filed by the respondent. As against that, the appellant was found to be earning monthly income Rs.45,000/- only. Keeping in mind the principle laid down by the Supreme Court in the case of Rajnesh Vs. Neha & Anr., (2021) 2 SCC 324, the family income of the parties should have been clubbed. If that is done, the respondent would not be entitled to any maintenance allowance as 1/4th of that family income (Rs.70,000/-) would be about Rs.17,000/-.
5. On the other hand, learned counsel for the respondent has relied on the pleadings made in the counter affidavit to submit that the respondent has no independent income. The income tax returns relied upon by the appellant are of prior period when the parties were living together. Since 2022, the respondent has been living separately, she having been turned out of her matrimonial home. Neither any income has been derived by the respondent after that occurrence nor any return of income tax has been filed by her or on her behalf.
6. The income derived by the respondent upto year 2022 was not her own independent income. The appellant is trading in computer hardware. While the parties were living together, some income derived by the appellant was shared with the respondent. Arising from that arrangement, the returns of income had been filed on behalf of the respondent, that too by the appellant.
7. Thus, it has been stated that the respondent has no independent income. Therefore, she is entitled to maintenance allowance.
8. As to the quantification of the amount, while learned counsel for the appellant would contend that the respondent is not entitled to any maintenance allowance, learned counsel for the respondent would contend that the maintenance awarded is wholly adequate being about 1/3 income of the appellant. At the same time, on query made, it is undisputed between the parties, there are no children born to them.
9. Having heard learned counsel for the parties and having perused the record, in the first place we cannot accept the submission being advanced by learned counsel for the appellant that the respondent has independent source of income. No evidence has been led before the learned court below to establish that the respondent is deriving any income from any source after her separation from the appellant. Also, in this summary proceeding, the explanation furnished by the respondent that the income described to have been earlier drawn by her was actually income of the appellant, also merits acceptance.
10. In view of facts noted above, it is not the case of the appellant that the respondent is doing some independent business from which she derived income disclosed in her income tax returns filed for earlier period.
11. As to the income of the appellant, the learned court below has referred to income tax returns of the appellant and reached a conclusion that he derived monthly income Rs.45,000/-. That finding is based on the admission of the appellant arising on strength of income tax returns. The same may never be doubted.
12. Even where the payer/spouse is not a salaried employee or where no Service Rule may exist - to provide for deduction of maintenance allowance either at source or otherwise at prescribed rates, a parallel principle has received judicial recognition - to award maintenance allowance equal to about 1/4th or 25% of the husband's income or the family income (income of the husband and the wife taken together), as the case may be. Thus, in Kulbhushan Kumar (Dr.) Vs. Raj Kumari, (1970) 3 SCC 129, it was held as below:
"21?.. The High Court, in our opinion, very rightly fixed that sum making it subject to the limit of 25 per cent of the income as found by the Income Tax authorities. We have no reason to take any different view?.."
13. Again, in Kalyan Dey Chowdhury Vs. Rita Dey Chowdhury Nee Nandy, (2017) 14 SCC 200, it was observed as below:
"15?... Following Kulbhushan Kumar Vs. Raj Kumari, (1970) 3 SCC 129 , in this case, it was held that 25% of the husband's net salary would be just and proper to be awarded as maintenance to the respondent wife. 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. Maintenance is always dependent on the factual situation of the case and the court would be justified in moulding the claim for maintenance passed on various factors?.".
14. That principle should be adhered to and firmly and efficiently applied by all Family Courts while dealing with interim/final maintenance allowance applications, filed under different enactments.
15. Keeping that principle in mind, in our opinion, the learned court below may have awarded interim maintenance at the same rate i.e. 25% of the monthly income of the appellant. That amount would be Rs.11,000/- approximately.
16. Accordingly, the impugned order is modified to the extent amount of maintenance allowance awarded. The respondent is found entitled to maintenance at the rate of Rs.11,000/- per month.
17. We also do not find any error in the approach of the learned court below in awarding the maintenance allowance from the date of the application. That is the normal Rule. In absence of any illegality, no interference is warranted on that.
18. At the same time, we find that the maintenance allowance for 23 months has became due. It would add up to Rs.2,53,000/-. To that extent, the appellant may be granted some time to pay the defaulted amount. Accordingly, the present appeal is disposed of as below:
(i) Subject to the appellant furnishing adequate security to the tune of Rs.2,00,000/- to the satisfaction of the court below in the shape of other than cash or bank guarantee. Rs.53,000/- to be paid on or before 15.12.2024, directly in the bank account of the respondent, further coercive measures adopted against the appellant shall remain stayed, subject to other conditions provided herein.
(ii) The appellant shall continue to pay to the respondent monthly maintenance allowance @ Rs.11,000/- from the month of December, 2024 onwards as and when it becomes due.
(iii) As to the arrears of amount Rs.2,00,000/- the same may be paid by the appellant in four equal quarterly installments of Rs.50,000/- each which shall be paid to the respondent on or before 31.03.2025, 30.06.2025, 30.09.2025 and 31.12.2025 respectively.
19. Any amount already deposited by the appellant may be adjusted towards payment/s to be made by the appellant towards the last installment/s.
20. However, it is made clear that in the event of failure on part of the appellant to comply with any part of the order, coercive measures be revived from that stage without any further reference to this Court.
21. Subject to such compliance being made by the appellant, the main proceedings may be proceeded on its own merits as expeditiously as possible.
Order Date :- 12.11.2024
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(Donadi Ramesh, J.) (S.D. Singh, J.)
