Orissa High Court
Kudrat Alli Khan vs Sahera Begum And Others .... Opposite ... on 3 February, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.4678 of 2024
Kudrat Alli Khan .... Petitioner(s)
Mr. B. K. Swain, Advocate
-versus-
Sahera Begum and others .... Opposite Party(s)
CORAM: JUSTICE SIBO SANKAR MISHRA
ORDER
Order No. 03.02.2025
01. 1. Heard.
2. The petitioner is aggrieved by the judgment dated
04.09.2024 passed by the learned Additional Sessions Judge-cum-
Presiding Officer Designated Court, under the OPID Act, Cuttack
in Criminal Appeal Case No.17 of 2023, whereby the application
moved by the opposite parties under Section 29 of the Protection of
Women from Domestic Violence Act, 2005 has been allowed and
direction has been made against the petitioner to pay Rs.11,500/-
maintenance to the opposite parties. The opposite parties and
minors have sought for maintenance from the petitioner.
3. Initially, vide order dated 31.01.2023, the application of
the opposite parties was allowed by the learned J.M.F.C., Cuttack in
D.V. Misc. Case No.64 of 2021 directing the petitioner to pay
Rs.6,500/- towards monthly maintenance to the opposite parties. In
the Criminal Appeal filed by the opposite parties, the learned
Additional Sessions Judge-cum-Presiding Officer Designated
Court, under the OPID Act, Cuttack vide its judgment dated
04.09.2024 in Criminal Appeal No.17 of 2021 enhanced the
maintenance to Rs.11,500/- inter alia observing as under:-
<Perused the case record along with LCR received from
the learned lower Court below, rival submissions of both
the parties and found that petitioner no.1 is the legal
married wife of OP and petitioners no.2, 3 and 4 are the
children born out of wedlock between petitioner no.1 and
OP. It is also disclosed from the materials on record that
OP has admitted that petitioner no.1 is his wife and
petitioners no.2, 3 and 4 are his children. There is no
dispute by OP that petitioner no.1 and his children stayed
together in a shared household and as such they were in
domestic relationship as per Sec.2(f) of the PWDV Act.
There is no dispute in this regard by OP. The allegation
putforth by petitioner no. 1 regarding torture to her by OP
has been strongly denied by the OP. Whether there was
any torture/domestic violence committed by OP towards
the petitioner no.1 has to be established in the hearing of
main DV Crl. Misc Case but prima facie disclosed from
the petition averments of the petitioner no.1 being
supported by an affidavit as well as the report of
Protection officer that there was domestic violence by OP
against the petitioner no.1 on account of which enstrange
relationship developed in between petitioner no.1 and her
husband-OP and now she along with her children are
residing at her parents house. It is the bald plea of OP that
the petitioner no.1 without any reasonable cause went to
reside with her children at her parents house and despite
repeated request she did not turn up with the children to
reside with him as a result he gave "Talak" to her.
Besides, the OP took a plea that he is getting low salary as
he has advanced loan from the bank and giving EMI to
the bank towards repayment of loan amount and he has no
source of income from landed property.
Sec.23 of the PWDV Act says that the Magistrate may
grant an interim order including under Sec.20 for
monetary relief, however, the Magistrate must be satisfied
that the application filed by the aggrieved woman
discloses that the respondent is committing, or has
committed an act of domestic violence, or that there is a
likelihood that the respondent may commit an act of
domestic violence. In such a case, the Magistrate is
empower to pass an interim order on the basis of the
affidavit of the aggrieved woman. In the present case at
hand, the learned Court below has rightly arrive at a prima
facie satisfaction from pleading of the petitioner
supported by report of the Protection Officer that there
was domestic relationship between the petitioner no.1 and
OP and both of them shared a common household, this
Court do not find any reason to interfere with the views
taken by the learned lower Court below while deciding
petition under the proceedings of Sec.23 of PWDV Act.
However, such allegation of domestic violence putforth
by petitioners against OP needs to be adjudicated by the
learned Court below finally by assessing evidence from
both the sides in main DV Crl Misc. Case No.64 of 2021.
With regard to the grounds as taken in the appeal i.e. the
learned court below has not taken into consideration
regarding the and financial status and actual income of OP
i.e. his actual net salary and other source of income from
the landed property and the learned court below has
awarded very meager amount of interim maintenance in
favour of the petitioners. Besides, it is the contention of
the petitioner no.1 that her children are reading in St.
Xavier School, Cuttack and attending private tuition,
which necessitates to claim before the Court for
enhancement of interim maintenance. On going through
the assets and liabilities statements of both the parties
filed before the learned court below, it is found that OP is
a salaried employee, who is working as Havildar in GRP
police at Cuttack. But the OP has categorically stated in
his assets and liabilities statement that he is getting
monthly net salary of Rs.32,000/-i.e. after deduction of
GSI, festival advance and other benefits from his monthly
gross salary of Rs.42,000/-. Besides, bank is deducting
EMI of Rs, 13,500/- from his net salary towards
repayment of loan. That apart, he had shown his other
expenses. He has admitted regarding his share on the
landed property and OP claim that the petitioner no.1 has
opened a shop and getting Rs.40,000/- to Rs.45,000/-
income. On the other hand, the assets and liabilities
statement submitted petitioner no.1 shows no independent
source of her income and her children i.e. petitioner no.2,
3 and 4 have educational expenses i.e. school fee is
around Rs.4,450/- per month, Rs.8,000/-towards tuition
fees and other expenses and she depend on her parents to
maintain the educational expenses of her children. She
categorically reflected in her assets and liabilities
statement that OP is getting salary of Rs.42,000/- and also
earning Rs.20,000/- per month as income from his landed
properties. The OP has not filed a single scrap of paper to
substantiate the income of petitioner no.1. The Hon'ble
Supreme Court of India in the case of Sunita Kachwaha
Vrs. Anil Kachwaha (2014) 16 SCC 715 has held that
merely because wife was earning something, would not be
a ground to reject her claim for maintainance particularly
when proof of her earnings were not placed on record
before the courts below. The above legal proposition is
squarely applicable to the present case at hand. Whereas,
salary slip of OP has been filed, which shows that he is
getting handsome salary but the plea taken by him that out
of his gross salary of Rs.42,000/-, bank is deducting his
EMI towards repayment of loan and other advances taken
by him were also deducted from his gross salary. In the
case of Dr. Kulbhushan Kunwar Vrs. Rajkumari (1970) 3
SCC 129, it was the pertinent observation that a person
cannot be permitted to wriggle out of his statutory liability
by way of availing huge loans and reducing a substantial
amount of his salary for repayment of the same every
month. Further it has been held by the Hon'ble Supreme
Court in the decided case Supra that deductions that are
made from the gross salary towards long term savings,
which a person would get back at the end of his service
and such as deductions towards provident fund, General
Group Insurance Scheme, LIC premium, State Life
Insurance can be deemed to be an asset that is creating for
himself, in arriving at the income of a party only
involuntary deductions like income tax, profident fund
contribution etc., are to be excluded. Therefore except the
statutory deductions like income tax, provident fund
contribution etc., rest voluntary deductions for benefit of
the employee cannot be excluded from his salary while
computing his means to pay maintenance. Keeping in
view such legal propositions, the contention of OP that
bank is deducting EMI from his gross salary as well as
other advances taken by him was deducted from his gross
salary is not legally tenable in the eye of law. No where
the OP has denied that his children are not reading in
school. Besides, OP has not disputed the educational
expenses of his children i.e. petitioners no.2, 3 and 4 as
disclosed by the petitioner no.1 in her assets and liabilities
statement. The Hon'ble Supreme Court of India in the
case of Rajnish Vrs. Neha and Another, (2021) 2 Supreme
Court Cases 324 have observed that the living expenses of
the child would include expenses for food, clothing,
residence, medical expenses, education of children. Extra
coaching classes or any other vocational training courses
to complement the basic education must be factored in,
while awarding child support. Further, it has been held by
the Hon'ble Supreme Court of India in the above decided
case that education expenses of the children must be
normally borne by the father. If the wife is working and
earning sufficiently, the expenses may be shared
proportionately between the parties. In the present case at
hand, it is established from the materials on record that
Petitioner No.1 has no source of income. Thus in view of
the above legal propositions, it is the bounden duty of a
father to bear all educational expenses of his children.
Materials on the record clearly reveals that OP is able
bodied person and getting handsome salary as Havildar of
police in GRP, Cuttack. It appears from the record that OP
was under suspension from his service and for that period
he has also furnished salary slip showing his low salary
but the amount towards salary shown by him during
suspension period shall not put him to any advantages as
being a father, it is his pious duty to maintain the
educational expenses of his children as per their need and
status. His mere plea regarding deduction of loan amount
etc., from his salary and bald denial of his other source of
income clearly indicates that he want to hide his actual
income and financial status. The OP being a salaried
employee and able-bodied person cannot contend here
that he is not in a position to earn sufficiently to maintain
his minor children i.e., Petitioner No.2 to 4 particularly to
bear their educational expenses. No doubt the learned
court below has decided rightly in awarding interim
maintenance favouring the Petitioner No.1 and minor
children i.e., petitioner No.2 to 4. But the maintenance
amount awarded by the learned court below definitely
apparent to be very low particularly for sustenance of
petitioner no.2, 3 and 4 as well as it is unbearable on the
part of petitioner no.1 to bear such huge educational
expenses of her children. Therefore, this Appellate Court
find it necessary to interfere with the order of lower court
below and is of the considered view that the OP has to
bear the educational expenses of his children i.e.
petitioner no.2, 3 and 4 in order to avoid them from
falling to destitution and vagrancy. Now, the pertinent
question is whether this court of appeal has the power to
enhance the quantum of maintenance while hearing
appeal against the impugned order of lower court below
under the PWDV Act when special provisions u/s 25 (2)
of the Act provides for alteration of maintenance under
change of circumstances. Law is well settled that two
remedies are available for enhancement of quantum of
maintenance under the PWDV Act i.e., either the
aggrieved person-petitioner can file for alteration of
maintenance invoking the provisions of Section 25 (2) of
PWDV Act or she can claim for enhancement of
maintenance by filing appeal u/s 29 of the PWDV Act.
Considering the above legal proposition, the contention of
OP that the Appellate Court cannot enhance the quantum
of maintenance in appeal u/s 29 of PWDV Act is no more
legally tenable. This court feel it proper to enhance the
quantum of monthly interim maintenance from Rs.6,500/-
to Rs.11,500/- Accordingly, it is ordered that:-
<The Criminal Appeal filed by appellants against the OP
is allowed on contest, but without any cost. The impugned
order dated 31.01.2023 passed by the learned JMFC,
Cuttack is hereby modified to the extent as follows:
<The OP is directed to pay Rs.11,500/-per month to the
petitioners towards interim maintenance of petitioner no.1
and her children i.e. petitioner no.2, 3 and 4 which
includes their educational expenses from the date of
application of the petitioner No.1 under Sec.23 of PWDV
Act i.e. 31.03.2021 till final disposal of DV Misc. Case
and the OP shall pay the monthly interim maintenance on
or before 10th of every succeeding month and arrears of
interim maintenance in six equal installments failing
which petitioners shall execute the order through the
process of law. The learned lower court below is
requested to dispose of the main DV Misc Case
expeditiously. Issue free copy of this order to both the
parties, if applied for.=
4. Learned counsel for the petitioner submits that after dissolution
of the marriage, the petitioner has entered into second marriage and
from that wedlock he has been blessed with one child. Therefore, he
is not in a position to make good the maintenance amount to his
earlier wife and three children owing to his financial health.
5. Since maintenance amount of Rs.11,500/- enhanced by the
learned Appellate Court is meager and may not even sufficient for
the maintenance of three of the petitioner's children from the first
marriage, who are minors, I am not inclined to entertain this
petition at this stage.
6. Accordingly, the CRLMC is dismissed.
(S.S. Mishra)
Swarna
Location: High Court of Orissa
Date: 05-Feb-2025 10:02:28
