Gurpreet Singh vs Smt. Dimple & Anr.
2010 Latest Caselaw 1284 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI


+           CM(M) 949/2009 & CM No.12782/2009

                              Date of Decision: March 08, 2010

       GURPREET SINGH                                   ..... Petitioner
                     Through:            Mr.Tiger Singh, Advocate
                                         with Petitioner in person.

                    versus


       SMT. DIMPLE & ANR.                          ..... Respondents
                      Through:           Mr.Raj Kumar, Advocate
                                         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?
     (3)      Whether the judgment should be reported
              in the Digest ?

                         JUDGMENT

ARUNA SURESH, J. (Oral)

1. Parties to the petition were married on 27 th February,

2005. A female child was born from the wedlock of the parties on

10th December, 2005. Various disputes and differences arose

between the parties, which resulted into filing of a divorce petition

by the petitioner/husband under Section 13(1) (ia) & (ib) of the

Hindu Marriage Act (hereinafter referred to as the „HM Act‟). In the

said petition, respondent filed an application under Section 24 of HM

Act seeking maintenance for herself as well as for the minor

daughter, who since after separation of parties is in custody of the

respondent. While allowing application of the respondent, Trial

Court in its order dated 16th April 2009, observed:-

" Keeping in view whatever material the parties have placed on record, I deed it fit case to allow monthly maintenance to the applicant- wife at the rate of Rs.2500/- for herself and Rs.1000/- per month for the minor daughter w.e.f. Jan,2008, to be paid by 7 th of each calendar month during pendency of main petition. Arrears to be paid in six months. It is made clear that amount of interest if any withdrawn by the applicant on the above mentioned amount of Rs.3.75 lacs lying deposited for three years, shall be adjusted against the amount of maintenance awarded to the female child."

Besides, Trial Court also awarded litigation expenses amounting to

Rs.10,000/-.

2. Learned counsel for petitioner has submitted that

monthly salary of the petitioner is Rs.5,500/-. The quantum of

maintenance awarded by the court comes to Rs.3,500/- per month,

which is on higher side as petitioner is not capable of paying the

maintenance as awarded. It is further submitted that petitioner had

deposited a sum of Rs.3.75 lacs in the form of an FDR in criminal

case, which was registered against the petitioner on the complaint of

the respondent and respondent is having interest income of about

Rs.2,700/- per month. Interest income received by the respondent is

to be adjusted towards maintenance awarded by Trial Court and

liability of the petitioner remains for the balance amount of Rs.700 to

Rs.800, which the Trial Court failed to consider.

3. Learned counsel for the respondent countered these

submissions stating that amount of Rs.3.75 lacs was deposited by the

petitioner against dowry articles/jewellery at the time of bail in the

criminal case registered against him and said deposit was without

prejudice to rights of both the parties. Therefore, according to him,

petitioner is not entitled to adjust interest income from said deposit

towards maintenance awarded by Trial Court to respondent as well

as to the child.

4. On complaint of the respondent, an FIR bearing

No.436/07, Police Station Hari Nagar, under Sections 406/498-A/34

IPC was registered against the petitioner and his other family

members. In the said case, Mr.Arun Kumar Arya, learned

Additional Sessions Judge vide order dated 30th November 2007,

passed, on an application of the petitioner seeking bail, accepted the

offer made by the petitioner and other accused persons to deposit a

sum of Rs.3.75 lacs against dowry articles/jewellery, without

prejudice to rights of both the parties. Accordingly, court directed

appellant to deposit the said amount in the form of an FDR for a

period of three years in the name of the respondent. It was further

ordered by the Court that the said FDR would contain an

endorsement that interest accruing on the said FDR amount would be

given to the respondent for upkeepment of the female child Meher

Preet Kaur. It is noted that this offer was accepted by the

respondent.

5. The said order was complied with and a sum of

Rs.3.75 lacs was deposited for three years on 11th December, 2007.

Respondent, who is present in Court, has admitted that in pursuance

of the order of learned Additional Sessions Judge, she is getting a

sum of Rs.2,695/- as interest every month for upkeepment of the

child. In the impugned order, Trial Court awarded maintenance of

Rs.1,000/- per month for the child w.e.f. January, 2008 and

Rs.2,000/- per month to the respondent. It was made clear by the

Trial Court that amount of interest, if any, withdrawn by the

respondent on deposited amount of Rs.3.75 lacs would be adjusted

against the amount of maintenance awarded to the female child.

6. It is a settled principle of law that if maintenance is

awarded in different Forums by different courts, wife and child are

entitled to the highest amount of maintenance awarded by any of the

said courts. In this case, highest maintenance has been awarded by

learned Additional Sessions Judge in criminal proceedings by way of

interest accruing on the FDR of Rs.3.75 lacs amounting to Rs.2,695/-

per month. Hence, child is entitled to maintenance, as awarded in

criminal proceedings, being the highest amount awarded. Therefore,

Trial Court rightly directed respondent to adjust the maintenance of

Rs.1,000/-as awarded by the impugned order against payment being

received as interest from bank every month.

7. Thus, it is clear that once maintenance amount of

Rs.1,000/- is adjusted in interest income for upkeepment of the child,

liability of the petitioner is reduced to Rs.2,500/- per month, being

maintenance awarded to the wife. Petitioner cannot claim

adjustment of entire interest amount against the maintenance

awarded to the wife and the child cumulatively.

8. As pointed out above, interest income was only for the

child and therefore, petitioner cannot claim any adjustment of

maintenance payable by him to his wife against the said interest

income. If it is allowed, it would be detrimental to the interest of the

child, and an unfair advantage to the petitioner. Amount of

maintenance, as awarded by the Trial Court to the wife is just and

proper. I find no reason to interfere in the same. Besides, quantum

of maintenance awarded to the wife has not been specifically

challenged by the petitioner.

9. Hence, I find no merits in this petition. The same is

accordingly dismissed. Petitioner has given an undertaking that he

would not object to the respondent getting the FDR revalidated on its

maturity. He shall be bound by the same. Respondent shall ensure

that FDR is renewed before it expires so as to ensure that the interest

income is regularly available for benefit of the child.

CM No.12782/2009 (for stay)

10. With dismissal of petition itself, this application has

become infructuous. Hence, same is accordingly dismissed.

ARUNA SURESH, J.

MARCH 08, 2010 sb