Amitabh Das vs Banasree Das
2010 Latest Caselaw 2221 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI


+           CM(M) 656/2008 & CM No.7950/2008 (for stay)

                                Date of Decision: April 27, 2010

       AMITABH DAS                                     ..... Petitioner
                              Through:     Mr.C.P.Saxena, Advocate.

                     versus


       BANASREE DAS                                   ..... Respondent
                              Through:     Mr.Avijit Bhattacharjee,
                                           Advocate.
       %
       CORAM:
       HON'BLE MS. JUSTICE ARUNA SURESH

     (1)      Whether reporters of local paper may be
              allowed to see the judgment?
     (2)      To be referred to the reporter or not?             Yes
     (3)      Whether the judgment should be reported
              in the Digest ?                                    Yes

                          JUDGMENT

ARUNA SURESH, J. (Oral)

1. Under challenge in this petition is the order of the Trial

Court dated 11th April 2008, vide which respondent was granted

maintenance of Rs.12,000/- per month for her and her minor child,

from 6th May, 2006 till final decision of the divorce petition on

merits, besides Rs.11,000/- as litigation expenses.

2. Grievance of the petitioner is that respondent is

employed for gain and is getting sufficient salary to maintain herself

and she is equally responsible to share the maintenance charges of the

child along with the petitioner. Therefore, Trial Court went wrong

while awarding Rs.12,000/- per month as maintenance to the

respondent for herself and the minor child.

3. A husband earning handsome salary is bound to share

his earnings with his wife, if financially she is not equally placed.

Respondent has placed on record salary slip of the petitioner for the

month of February, 2010. As per this salary certificate, total

emoluments of the petitioner are Rs.1,04,580/- per month. The

annual income tax deduction required to be made from salary of the

petitioner is shown to be Rs.2,83,138/-. Income tax deducted from

the salary of the petitioner for the month of February, 2010 is shown

to be Rs.42,487/-. Monthly installment of income tax payable by the

petitioner comes to about Rs.24,000/-. It seems that since more

income tax was required to be deducted, from the salary in the month

of February 2010, a sum of Rs.42,487 was deducted to meet income

tax liability of the petitioner. Besides petitioner cannot be given

benefit of deduction towards various loans like car loan, HBA, MP

Advance and BOP loan while calculating his monthly income.

4. It is pertinent that deductions made from salary of the

petitioner are almost double the net salary received by him. This

obviously is with a view to avoid his liability to pay maintenance to

his wife and child. Even if, net salary of the petitioner is considered

to be Rs.34,818/- and deductions are considered as reasonable, he still

has additional rental income of Rs.11,000/- from his house at

Gurgaon. When both incomes are clubbed together, petitioner is

earning about Rs.46,000/- per month.

5. Salary certificate of the respondent placed on record for

the month of March, 2010 shows total emoluments of the respondent

as Rs.45,824/- and after deductions of Rs.11,590/-, her net pay is

shown as Rs.34,234/-. Deductions made from her salary are towards

income tax and provident fund only. Thus, it is clear that net income

of the petitioner is almost double the net income of the respondent.

6. Child is studying in Amity International School,

Vasundhara, Ghaziabad. As per invoice dated 22.12.2009

Respondent paid Rs.10,410/- as three months' fee for the child.

Thereafter she has been paying quarterly fee for the child as per

School's demand. There is one receipt dated 7th November, 2008

issued by the School, which indicate that Rs.44,375/- were paid as

first fee for the year 2009-10. These documents indicate that

respondent has to spend handsome sum of her income to meet the

educational expenses of the child. Besides, child is also to be taken

care of her other expenses like food, shelter, clothing, medical

expenses and other activities, which she is entitled as per the status of

her parents. If income of both the parents is clubbed, it would come

to around Rs.1,50,000/-.

7. Under the circumstances, award of Rs.12,000/- per

month as maintenance to respondent and the minor child, cannot be

considered on the higher side. Rather it can be considered on the

lower side, not being even one-third of actual income of the

petitioner.

8. Hence, I find no merits in this petition. Same is

accordingly dismissed.

9. Vide order dated 25th November 2008, subject to

petitioner's paying monthly maintenance at the rate of Rs.6,000/- to

the wife, this Court had stayed operation of the impugned order dated

11th April, 2008 and thereafter petitioner has been paying

maintenance at the rate of Rs.6,000/- per month to the respondent.

Since this petition has been dismissed, petitioner is directed to pay

the entire arrears of maintenance, being the difference of maintenance

already paid and maintenance as fixed by the Trial Court and upheld

by this Court in two equal installments payable in two consecutive

months i.e. May 2010 and June 2010. He shall continue to pay

maintenance at the rate of Rs.12,000/- per month to the respondent as

ordered by the Trial Court.

CM No.7950/2008 (for stay)

10. Since petition has been dismissed, this application has

become infructuous. The same is accordingly dismissed.

ARUNA SURESH (JUDGE)

APRIL 27, 2010 sb