Jharkhand High Court
Dilip Sharma vs The State Of Jharkhand on 8 February, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 303 of 2019
Dilip Sharma ... ... Petitioner
Versus
1. The State of Jharkhand
2. Urmila Sharma ... ... Opp. Parties
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CORAM: HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Petitioner : Mr. Rohit Roy, Advocate
For the State : Mr. Manoj Kumar No.2, APP
For the O.P. No.2 : Mr. Pratiush Lala, Advocate
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The matter was taken up through Video Conferencing. Learned counsel for the
parties had no objections with it and submitted that the audio and video qualities are
good.
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06/08.02.2022: Heard the parties.
This criminal revision has been filed by the revisionist against the order
dated 19.01.2019 passed by learned Principal Judge, Family Court, Dhanbad in
Original Maintenance Petition No.296 of 2016 by which application filed by Opp.
Party No.2-wife has been allowed by directing the revisionist to give Rs.12,000/- per
month to the wife, as maintenance and Rs.5,000/- as litigation cost.
Other parameters of Section 125 Cr.P.C. are not in dispute, save and
except the quantum of maintenance.
It has been submitted by the counsel for the revisionist that the quantum of
maintenance is excessive.
As per the materials available on the record i.e. Income Tax Return of the
revisionist, which suggests that the income of the husband as Rs.25,000/- per month.
Rs.7,000/- per month is being paid as per the terms and conditions of the
Anticipatory Bail Application as stipulated in the order dated 29.06.2017 passed in
A.B.A No.4731 of 2016. The relevant portion of the order reads as under:-
3. Further, the petitioner is directed to pay the current ad interim
maintenance @ Rs.7000/- per month from the month of August, 2017
later to be deposited by 25th day of the English calendar in the account
of O.P. No.2.
4. The aforesaid ad-interim maintenance will be paid till the disposal of the
case.
5. Further, if the petitioner defaults in making payment for two successive
months, it shall be open to the informant to file an application for
cancellation of bail of the petitioner.
This order of ad-interim maintenance granted to the O.P. No.2 is
subject to the result of the order passed by competent jurisdiction.
Let a copy of the order be sent to the court below.
It has been submitted that the court below has erred in law, in spite of the
fact that material available on record suggests the income of the revisionist as
Rs.25,000/- per month by awarding maintenance over and above Rs.7,000/-
which is being paid in pursuance of the above order.
Learned counsel for the revisionist has relied upon the judgment reported
in the case of Kalyan Dey Chowdhury vs. Rita Dey Chowdhury Nee Nandy
{(2017) 14 S.C.C. 200}, especially in paragraph-15, which is quoted herein
below:-
"15. The review petition under Order 47 Rule 1 CPC came to be filed
by the respondent wife pursuant to the liberty granted by this Court
when the earlier order dated 2-2-20152 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 Kulbhushan Kumar v. Raj Kumari5,
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. 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".
Learned counsel for the revisionist further relied upon the judgment
reported in the case of Rajnesh v. Neha {(2021) 2 SCC 324}, especially in
paragraph-128, which is quoted herein below:-
"128. To overcome the issue of overlapping jurisdiction, and avoid
conflicting orders being passed in different proceedings, it has become
necessary to issue directions in this regard, so that there is uniformity in
the practice followed by the Family Courts/District Courts/Magistrate
Courts throughout the country. We direct that:
128.1. (i) Where successive claims for maintenance are made by a party
under different statutes, the court would consider an adjustment or set-
off, of the amount awarded in the previous proceeding(s), while
determining whether any further amount is to be awarded in the
subsequent proceeding.
128.2. (ii) It is made mandatory for the applicant to disclose the
previous proceeding and the orders passed therein, in the subsequent
proceeding.
128.3. (iii) If the order passed in the previous proceeding(s) requires
any modification or variation, it would be required to be done in the
same proceeding".
Learned counsel for the wife has supported the order of maintenance and
it has been submitted that she has claimed Rs.50,000/- as maintenance while only
meagre amount of Rs.12,000/- has been awarded by the court below. While
passing impugned order, the court below has also considered the order granting
anticipatory bail of this Court by which Rs.7000/- has been granted as a condition
of bail.
Having heard learned counsel for the parties and on perusal of the
materials available on record, it appears the income of the husband is Rs.25,000/-
per month. There is no other material brought on record by the wife. However, the
court below has supposed to assess the income of the husband, considering the
materials as well as status of the parties. While quantifying maintenance amount,
the court below has taken into consideration both i.e. materials available and the
status of the parties and thereafter, quantum of maintenance has been awarded in
favour of the wife. However, the amount of Rs.7000/-, which is being paid as
condition of bail, has been declared by the court itself as ad interim compensation
to be considered by the court below while granting maintenance.
In the facts and circumstances of the present case, the payment of
Rs.7,000/- as condition of bail is directed to be adjusted towards maintenance
amount of Rs.12000/- per month. It is clarified that quantum of maintenance of
Rs.12,000/- has not been disturbed.
Since, the order of maintenance has been stayed by this Court vide order
dated 14.08.2019, the revisionist is directed to clear the arrear of maintenance
amount within a period of three months from today.
With the above modification in the impugned order, the present criminal
revision stands disposed of.
(Rajesh Kumar, J.)
Ravi/-
