Delhi High Court
Yogender Singh Gahlot vs Suman Gahlot on 13 August, 2010
Author: Aruna Suresh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No.1169/2008 & CM No.14626/2008
Date of Decision: August 13, 2010
YOGENDER SINGH GAHLOT ..... Petitioner
Through: Mr. Suresh Sharma, Adv.
versus
SUMAN GAHLOT ..... Respondent
Through: Mr. R.P. Kaushik, Adv.
with Respondent in person.
% 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.
1. Parties to the petition were married according to Hindu Rites
and Customs on 27.11.1995. Two children were born out of
the wedlock of the parties. Parties started living separately
because of disputes and differences. Since third week of
May 2007 the children are in the custody of their mother.
2. Petitioner has filed a petition for restitution of conjugal rights
under Section 9 of the Hindu Marriage Act (hereinafter
referred to as „H.M.Act‟). In the said petition, Respondent
filed an application under Section 24 of the H.M.Act. The
Trial Court vide impugned order dated 25.08.2008 was
pleased to award maintenance @ Rs.3,500/- to the wife and
sum of Rs.1,000/- per month to each of the children for their
household expenses from the date of the filing of the
application till the disposal of the case. This order was passed
keeping in consideration the fact that Petitioner is paying
school fee of both the children and also the rent of Rs.3,200/-
per month for the premises which he has taken on lease for his
residence and for the residence of his wife and children,
wherein Respondent and the children are still residing.
Aggrieved by the said order of the trial Court, petitioner has
filed this petition.
3. It was submitted by the petitioner that the Trial Court has
fixed maintenance on the higher side and failed to appreciate
that he is bearing the educational expenses of the children and
also that he is paying rent for the premises in which
Respondent and children are residing. He is working as a
Junior Warrant Officer in Air Force and posted at Jorhat,
Assam. He gets only a sum of Rs.25,000/- per month and his
cash-in-hand salary is only about Rs.12,607/- after
compulsory deductions of Rs.1898/- towards P.A. and income
tax. He is also paying Rs.3,784/- for repayment of the loan
amount. According to him, Respondent is self employed and
is running a beauty parlour and earning about Rs.15,000/- per
month. Petitioner, therefore, is ready and willing to pay
maintenance for the children only, besides their educational
expenses which he is already incurring.
4. Mr. R.P. Kaushik, learned counsel for the Respondent has
submitted that Respondent is not running any Beauty Parlour
and has no independent income of her own. Therefore, the
Trial Court rightly awarded maintenance @ Rs.3,500/- per
month besides Rs.1,000/- per month to each of the children.
5. During the course of arguments, Petitioner was asked to
produce his salary slip for the month of November, 2009.
Despite the fact that enough opportunity has been given to the
Petitioner to do the needful, he has failed to place Salary
Certificate / Salary Slip for the month of November, 2009 or
for any other month thereafter.
6. The Court took into consideration the salary of the petitioner
in the year 2007 at the time when the said application was
decided. Over a period of two years, salary of the petitioner
must have increased by way of increments, or on revision of
pay, if any. At the same time day to day life has become
expensive and the prices for vegetables, fruits and other
necessary household items have increased tremendously.
Therefore, maintenance awarded by the Trial court cannot be
considered to be on the higher side.
7. Petitioner has claimed that there are various deductions which
are made from his salary and his carry home salary is meager.
From the said carry home salary, he finds it difficult to pay
maintenance as awarded to the Respondent and the children.
The Court has to keep in mind consider the compulsory
deductions required to be made from the salary of the
employee while considering the income of the Petitioner.
Any other voluntary deductions in no manner can be weighed
by the Court for assessing his income. Compulsory
deductions are towards P.A. and Income tax, besides Group
Insurances of Rs.7,000/- per month.
8. The Trial Court rightly assessed the income of the petitioner
in para 9 of its order as below:-
"9. After going through the salary slip and
reducing the necessary expenses I came to the
conclusion that compulsory deduction are of
Rs.1898/- per month and further he is paying
around Rs.10,000/- P.A. as income tax, which
came to Rs.900/- per month, which is liable to
be deducted from his salary. As far as PF
refund of Rs.2000/- and the loan amount of
Rs.3784/- which he is paying, in my opinion
both parties are liable to share the burden of this
loan. Hence, in my opinion ½ of the said loan
amount & PF advance be reduced from the
gross income of non-applicant. Hence, the net
salary of the petitioner came to Rs.12,607/-."
9. Trial Court did take into consideration the deductions to
which petitioner is entitled to be considered for the purposes
of ascertaining his net pay. To avoid payment of
maintenance, petitioner could get any deductions made from
his salary, but then these deductions are not material. The
Trial Court imposed 50% liability on the Respondent also for
repayment of the loan amount of Rs.3784/- while considering
the quantum of maintenance which has been awarded to the
Respondent.
10. Under these circumstances, I find no merits in the petition, the
same is accordingly dismissed.
11. Vide order dated 16th October, 2008, this Court had reduced
the maintenance payable to the wife and the children from
Rs.5,500/- to Rs.3,000/- per month. This was without
prejudice to the rights of the parties on merits. Hence,
Petitioner is directed to clear the arrears of maintenance
which have become due and are payable by him to the
Respondent wife within four months from today.
ARUNA SURESH
(JUDGE)
AUGUST 13, 2010
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