Delhi High Court
Rinku Babu Tripathi vs Richa Tripathi on 13 July, 2018
$~49
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAT.APP.(F.C.) 154/2018 & CM No.27162/2018 (stay)
Judgment pronounced on 13th July, 2018
RINKU BABU TRIPATHI ..... Appellant
Through: Mr.G.S. Sharma and Mr.R.A. Sharma,
Advocates
Versus
RICHA TRIPATHI ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G. S. SISTANI, J.
CM No.27161/2018 (delay)
This is an application seeking condonation of delay of 6 days in
filing the present appeal.
Heard.
The delay is condoned.
The application stands disposed of.
MAT.APP.(F.C.) 154/2018 & CM No.27162/2018 (stay)
1. The present appeal is directed against the order dated 13.04.2018,
by which the Family Court has fixed maintenance @ of Rs.4,000/-
per month for the wife and additionally Rs.4,000/- per month for
the minor daughter.
2. Aggrieved by the aforesaid order has led to the filing of the present
appeal. Learned counsel for the appellant has strongly urged before
the Court that the salary of the appellant is Rs.17,510/- per month.
It is further contended that in this amount he is looking after old
aged parents and younger brother. It is, thus, contended that the
amount which has been awarded by the Trial Court is on the higher
side. He also relies on a decision in the case of "Kalyan Dey
Chowdhury vs Rita Dey Chowdhury Nee Nandy", Civil Appeal
No.5369 of 2017. More particularly, para 15 which we reproduced
below:-
"The review petition under Order XLVII Rule 1 CPC
came to be filed by the respondent-wife pursuant to
the liberty granted by this Court when the earlier
order dated 02.02.2015 awarding a maintenance of
Rs.16,000/- to the respondent-wife as well as to her
minor son was under challenge before this Court. As
pointed out by the High Court, in February 2015, the
appellant-husband was getting a net salary of
Rs.63,842/- after deduction of Rs.24,000/- on account
of GPF and Rs.12,000/- towards income-tax. In
February, 2016, the net salary of the appellant is
stated to be Rs.95,527/-. Following Dr.Kulbhushan
Kumar vs. Raj Kumari and Anr. (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 dependant on the factual situation of the case
and the court would be justified in moulding the claim
for maintenance passed on various factors. Since in
February, 2016, the net salary of the husband was
Rs.95,000/- per month, the High Court was justified in
enhancing the maintenance amount. However, since
the appellant has also got married second time and
has a child from the second marriage, in the interest
of justice, we think it proper to reduce the amount of
maintenance of Rs.23,000/- to Rs.20,000/- per month
as maintenance to the respondent wife and son".
3. We have heard the learned counsel for the appellant and also
examined the order passed by the Family Court. The Family Court
has taken into consideration the submissions made by both the
parties. According to the wife, the husband is working as a
Contractual Lab Technician in a private clinic and is earning
Rs.17,000/- per month. The husband has stated that the wife is also
working as a beautician. The Family Court has only relied upon
the salary certificate of the husband produced for the month of
November, December 2017 and January 2018 respectively,
according to which his salary is Rs.17,510/- per month. The Family
Court has also not placed reliance on a visiting card and copies of
the photographs of signboard in the name of Dr. R.B. Tripathi and
Tripathi Clinic placed on record by the wife to show that the
husband is working with the said clinic part time and observed that
the disputed question of fact would be considered and after the
parties adduce evidence during trial.
4. Learned counsel for the appellant has submitted that while passing
the impugned order dated 13.04.2018, the Family Court has failed
to take into account that the appellant is looking after his old aged
parents and younger brother. We are unable to accept the
submission made by the counsel for the appellant for the reason
that during the course of hearing, counsel for the appellant had
fairly stated that the father of the appellant is still working.
Resultantly, it would be the responsibility of the father to look after
his younger son and it would not be the responsibility of the
appellant herein. We may also note that although the respondent-
wife has alleged that besides working as contractual Lab
Technician in a private clinic, the appellant is also working with
the Tripathi Clinic. She has also placed reliance on the visiting
cards and copies of photographs of signed board in the name of Dr.
R.B. Tripathi and Tripathi Clinic, which the family Court did not
rely upon while considering the application seeking maintenance.
5. While deciding an application for grant of maintenance, the Court
must consider the status of the party and the capacity of the spouse
to pay the maintenance. In our view, there is no infirmity in the
amount of maintenance which has been awarded by the Family
Court. The wife has only studied upto class 12 th. She has no other
source of livelihood and in the sum of Rs. 8,000/-, she has to
maintain herself and her eight years old daughter.
6. Accordingly, we find no merit in the present appeal. The same is
accordingly dismissed.
G. S. SISTANI, J
SANGITA DHINGRA SEHGAL, J
JULY 13, 2018/ afa
