Madras High Court
V.Dhandayuthapani vs Bhuvaneswari on 22 September, 2015
Author: S.Vimala
Bench: S.Vimala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.09.2015
CORAM
THE HONOURABLE MRS.JUSTICE S.VIMALA
Crl.R.C.(MD)No.501 of 2012
and
M.P.(MD)No.1 of 2012
V.Dhandayuthapani ... Petitioner
-vs-
1.Bhuvaneswari
2.Minor Sindhuja
3.Minor Harinath
(Respondents 2 and 3 are
rep.by their mother and guardian,
the first respondent herein). ... Respondents
Petition filed under Section 397 r/w 401 of the Criminal Procedure
Code, against the order passed by the learned Judicial Magistrate No.1,
Thanjavur, in M.C.No.53 of 2011 dated 06.08.2012.
!For petitioner : Mr.S.Suresh
^For respondents : Mr.M.P.Senthil
:O R D E R
?Family is a circle of strength and love, with every birth and every union the circle grows, the family is circle of strength and love, every crises faced together makes the circle stronger.? Quoting this quote, the Court below has indicated the value of family to the parties to the litigation. But, parties did not wake up.
2.The respondents herein, who are the wife and two minor children of the revision petitioner herein, filed a petition for maintenance in M.C.No.53 of 2011, claiming a sum of Rs.5,000/- each.
3.The revision petitioner disputed the claim of maintenance on the ground that there was a divorce petition pending before the Sub-Court, Devakottai and as the wife is guilty of causing cruelty and desertion, she is not eligible to claim any maintenance.
4.The Court below, after considering the evidence in detail, came to the conclusion that there is justifiable ground for the wife to live away from the husband and therefore, the wife and consequently the two minor children, who are in the custody of the wife, are entitled to maintenance.
5.So far as the quantum is concerned, as per the Salary Certificate produced before the Court, the gross salary was Rs.45,538/-, while the take- home salary is Rs.14,438/-. Pointing out the take-home salary, the learned counsel for the revision petitioner would submit that when the carry-home salary itself is roughly around Rs.15,000/- and if the entire amount is paid as maintenance, nothing would be left for the revision petitioner for his maintenance, and therefore, the order of maintenance needs to be set aside.
6.Whether this contention can be accepted or not is the only issue to be considered. The decision rendered by the Allahabad High Court in Smt.Veena Panda vs Devendra Kishore Panda on 22 February, 2006 giving a comprehensive account of relevant decisions governing the quantum of maintenance would be appropriate and it is extracted for convenient reference:.
?I. Baby Rashmi Mehra v. Sunil Mehra. In this case it was held that no rigid formula about percentage of income can be fixed for giving maintenance. The quantum depends upon the status and income of the parties. The leading case of privy council, Ekradeshwari v. Homeshwar reported in AIR 1929 privy council 128 was also referred to in this case wherein it was observed that maintenance depends upon a gathering together of all the facts and the situation, amount of free estate, the past life of the married parties and the family and survey of the members, on reasonable view of change of circumstances, possibly required in future, regard having of course be given to the scale and mode of living and the age, habits and wants and class of life of the parties. Our Hon'ble Supreme Court in the case of Kulbhushan v. Raj Kumari expressed its agreement with the aforesaid observation of the privy council. In this case it was also observed by the single Judge of Delhi High Court that in one case the maintenance may be 25% while in another it may be 50% or even less or more. The quantum depends upon the position of status of the parties including financial position of the defendant and the reasonable demands of the claimant or any other factor. There can be no quarrel with the principle laid down in these cases.
II. Dev Dutt Singh v. Rajani Gandhi 1984 (1) DMC Delhi 212. In this case it was held that if the husband is living in his own house the wife is also entitled to accommodation in the same house or in a separate building. There can be no dispute in respect of this principle also.
III. Dinesh Giju Bhai Mehta v. Smt Usha Dinesh Mehta 1979-M L R 209 Bombay- (DB). In this case the Division Bench of the Bombay High Court held that rule 1/5 of net income of husband is unreasonable because wife and husband are equally partners.
IV. Kalaben Kalabhai Desai v. Alabhai Karamshibhai Desai 2000(2) Femi Juris 337. The Hon'ble Single Judge held in this case that normal rules applied is to award 1/3rd of income of husband to wife and child from the date of application under Section 24 of the Hindu Marriage Act.
V. S.S. Bindra v. Tarvindra Karu . In this case the learned single Judge opined that net income of the husband may be divided equally between family members with one extra portion/share being allotted to earning spouse.
VI. Chandrikaben Chhanalal Patel v. Rameshchandra Chandilal Patel 1986 (1) DMC Gujarat 232. The learned Single Judge observed that contribution towards provident fund or payment of installments towards loan cannot be deducted from the total earning while fixing maintenance under Section 125 CrPC.
VII. Dharmi Chandra v. Smt Sobha Devi . It was held that general rule is that wife should not be relegated to a lower standard of living than that which the husband enjoys.
VIII. Shivani Chattopadhyaya v. Siddnath Chattopadhyaya 2001 AII CJ (S.C) 174. In this case the Hon'ble Supreme Court while determining the interim maintenance under Section 125 CrPC for wife and child granted 6000/- Rupees as interim maintenance. In this case the husband was D.I.G. and there was dispute in respect of his entire income.
IX. Rekha Deepak Malhotra v. Deepak Jagmohan Malhotra . In this case allegations were made by wife against adulterous husband and of cruelty which was not condoled by wife. The plea that wife left matrimonial home voluntarily was not found tenable and, therefore, wife was held to be entitled for maintenance. Keeping in view the provisions of Section 18 of the Hindu Adoption and Maintenance Act in respect of quantum it was held that it should aid the wife to live in a similar style as she enjoyed in the matrimonial home.
X. Smt. Renu Jain v. Mahabir Prasad Jain AIR 1987 Delhi 43. In this case it was laid down that the wife and child are entitled to live according to the status of the husband.
XI. Smt. Tarun Batra v. S.R. Batra . According to the facts of this case on further deterioration of relations and on becoming difficult to stay in matrimonial house the wife shifted to her parent's residence. Subsequently she was denied entry to her matrimonial house by the respondents which was not found proper because she has a right to stay in her matrimonial house. More so when her husband applied for divorce, the respondents cannot deny her access to her matrimonial home or interfere in her possession thereof.
XII. Basudeb Dey Sarkar v. Smt. Chhaya Dey Sarkar . In this case also it was held that where matrimonial dispute is pending between the spouses, the wife is not a licensee or trespasser. Her right to reside there continues till it is terminated in matrimonial proceedings.
XIII. Smt. Gurmeet Kaur v. Gur Raj Singh . In this case the learned Additional District Judge, Amritsar declined maintenance to wife and minor son observing that it would quietly nudge her towards taking a less harsh view of her husband's behaviour towards her. It was held by the learned single Judge that it amounted to refusal of maintenance pendente lite and expenses of litigation to the wife and her minor child to pressurise the wife to reconcile her differences with her husband and, therefore, it has to be branded as a patent misuse of the provisions of Section 24 of the Hindu Marriage Act.
XIV. Radhikabai v. Sadhu Awatrai AIR 1970 Madhya Pradesh 14. In this case the Division Bench held that merely because a potential capacity to earn something is found in the wife, the Court cannot refuse to grant her maintenance. It was further held that Section 24 of the Hindu Marriage Act does not envisage that customary ornaments may be taken into account for the purpose of income nor can the Court refuse maintenance on the ground that wife can pull on for some time by selling her ornaments.
XV. Pratima Singh v. Dr. Abhimanyu Singh Parihar 1986 (1) DMC 301 M.P. In this case the Hon'ble single Judge modified the order passed by the trial court and awarded the pendente lite maintenance at the rate of 50% of the income of the husband, after deducting the amount for uncertainties.
XVI. Savita Aggarwal v. R.C. Aggarwal 1991(1) DMC 18 (P&H). According to ratio of this case even if the entire salary is deposited as contribution towards General Provident Fund etc. that will not deprive the petitioner of her right to get maintenance pendente lite.
XVII. Smt. Krishna Kumari v. IV ADJ Hamirpur AIR 1989 Allahabad 198. The Hon'ble single Judge of our own High Court in this case has held that the appellate court must be slow and cautious in granting demand in the case under Section 24, 28 of the Hindu Marriage Act. In this particular case the order of trial court was not found to be callous or capricious. Therefore, it was held that the appellate court in such cases must not interfere in the order of the trial court.
XVIII. Harmindra Kaur v. Sukhwinder Kaur 2002(2) Femi Juris CC 292 Delhi. This case law also deals with maintenance to wife and child under Section 125 Cr.P.C. The income of the husband was found to be Rs. 12,000/- per month and considering the equal status of the wife who was to live with the child the amounts of Rs. 4800/- for wife and Rs. 2400/- for the child were awarded by dividing the income of the husband in 5 units, two units each for adults and one unit for the child.
XIX. Ruma Chakraborty v. Sudha Rani Banerjee 2005 (36) A I C 398 (SC). The Hon'ble apex Court while dealing with the matter in Hindu Adoption and Maintenance Act held that the intention of the legislature by including clothing, residence etc. was to provide for real maintenance and not a bare or starving maintenance.
XX. Pradeep Kumar Kapoor v. Ms. Shailja Kapoor . While defining ''maintenance' and ''support' under Section 24 of the Hindu Marriage Act it was laid down that the definition of ''maintenance' as given in Hindu Adoption and Maintenance Act should be adopted. It was held that in deciding the application under Section 24 of the Act the Court has to act in accordance with sound judicial principles and cannot act in an arbitrary manner to the prejudice of either of the parties.
8.The following principles were found to be relevant for the purpose:
(1) Position and status of the parties. (2) Reasonable wants of the claimant towards food, clothing, shelter, medical attendance with treatment, education and the like. (3) Income of the claimant.
(4) Income of the opposite party. (5) Number of persons the opposite party is obliged to maintain.
9.As a corollary the following point was also added:-In arriving at the income of a party only involuntary deductions like income tax, provident fund contribution etc. are to be excluded.?
7.The learned Magistrate, while dealing with the carry-home salary and the gross salary, considered in detail the compulsory deductions /optional deductions, and has arrived at a reasonable conclusion that the quantum of maintenance to be ordered is Rs.5,000/- to each of them.
8.The deductions that are made in the salary of the revision petitioner is towards loan facility already availed by him. The deduction for the society loan is roughly about Rs.14,825/- and the deduction towards yet another loan is Rs.12,981/-. These deductions only go to show that the amount is already being enjoyed by the revision petitioner or it will be enjoyed in future. Compulsory deduction is very minimal. Therefore, the amount of maintenance as ordered by the Court below cannot be said to be excessive, especially having regard to the sky-rocketing increase in prices.
9.Therefore, the order of maintenance cannot be reduced. The revision petition is devoid of merits and it is dismissed accordingly. Consequently, the connected miscellaneous petition is closed.
To:
The Judicial Magistrate, Thanjavur.
.