Wednesday, January 21, 2015

Hubby earning 50K appeals 10K maint. Hon HC says 25K would b correct maint & so dismisses appeal

Husband's salary slip shows 70+ K as earning, but he claims hardship allowance etc and claims that his salary is only 50 K p.m. !! He tries to appeal a 10K interim maint order . HC tells him 10K p.m. is VERY reasonable and so ............... dismissed !!!



The Hon HC states and we quote :
*********************************************
* "...... In Bhushan Kumar Meen v. Mansi Meen reported in (2010) 15 SCC 372 the Apex Court has awarded maintenance of Rs.5000/- only for a wife from the husband who is earning Rs.9000/- !!!....."
* "......In case of V.D.Bhanot vs. Savita Bhanot reported in (2012) 3 SCC 183, ....Thus .... more than Rs.10,000/- per month from a person whose income may not be as handsome as present respondent........."
* "......in case of Chanmuniya v. Virendra Kumar Singh Kushwaha reported in (2011) 1 SCC 141, the Honourable Apex Court has confirmed that maintaining the wife, children and parents is a measure of social justice to prevent vagrancy  and destitution........."
* So ... ".........it would be appropriate to award Rs.25,000/- per month in favour of the applicant - wife !!!

* "..........Therefore, it cannot be said in any manner that Rs.10000/- is on higher side when application is earning more than Rs.50000/-. I do not see any merit in the present revision application and same deserves dismissal......."



*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
 
******************************************************************
CASE FROM JUDIS / INDIAN KANOON WEB SITE
******************************************************************

R/CR.RA/694/2013                                           JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 694 of 2013

FOR APPROVAL AND SIGNATURE:  HONOURABLE MR.JUSTICE S.G.SHAH

****************************************************************

     1     Whether Reporters of Local Papers may be allowed to see the judgment ?

     2     To be referred to the Reporter or not ?

     3     Whether their Lordships wish to see the fair copy of the judgment ?

     4     Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?

     5     Whether it is to be circulated to the civil judge ?
http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
****************************************************************
                    ASHWINKUMAR BABULAL TRIVEDI....Applicant(s)
                                    Versus
                      STATE OF GUJARAT & 1....Respondent(s)
****************************************************************
     Appearance:
     MR Y J PATEL, ADVOCATE for the Applicant(s) No. 1
     MR A A ZABUAWALA, ADVOCATE for the Respondent(s) No. 2
     MR SATYAJIT SEN, ADVOCATE for the Respondent(s) No. 2
     MS JIRGA JHAVERI, ADDL.PUBLIC PROSECUTOR for the Respondent(s)      No. 1
****************************************************************

CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 12/03/2014
ORAL JUDGMENT

CRIMINAL REVISION APPLICATION/694/2013                 25/06/2014

Heard learned advocate Mr.Y.J.Patel for the applicant, Mr.Satyajit Sen, learned advocate for respondent No.2 and learned APP Ms.Jirga Jhaveri for respondent No.1 - State.

2. The applicant - husband has challenged the judgment and order dated 12.10.2013 by the Principal Civil Judge and Judicial Magistrate First Class, Vadali in Criminal Misc.Application No.118 of 2012. By such impugned order, the trial Court has directed the applicant herein to pay Rs.10000/- towards maintenance per month to the respondent No.2 from 6.8.2012 with Rs.5000/- as cost of such application.

3. The applicant is husband, whereas respondent No.2 is wife. There is no dispute so far as their relationship is concerned because they have one son, who is now aged 12 years and residing with the applicant - husband.

4. The record shows that the matter was referred to the Mediation Centre, but as per the communication dated 6.3.2014 by the Gujarat State Legal Services Authority, the dispute is not settled between the parties and hence now this revision application is to be decided on its merits.

5. By an order dated 22.1.2014, this Court has while referring the matter to the Mediation Centre, recorded a statement of learned advocate Mr.Patel for the applicant that the applicant will pay all the maintenance amount on or before 28.2.2014. Though the matter has not been settled before the Mediation Centre, applicant has failed to disclose on record that whether they have complied with the order dated 22.1.2014 or not. On inquiry, learned advocate Mr.Patel for the applicant wants some time to verify that whether such order was complied with or not. Therefore, when this Court is not inclined to grant further time on any such ground, though the matter is required to be dismissed for non-compliance of order dated 22.1.2014 itself, the matter is dealt with on its merits. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

6. It is submitted by learned advocate Mr.Patel that though salary slip of the applicant, produced by the respondent No.2 with their affidavit -in- reply at page No.87 shows the gross earnings as Rs.72058.42, it includes allowance for overtime. As per the applicant, such amount is Rs.20935.42. However, the salary slip does not disclose that such amount is towards overtime, but is paid as hardship allowance. Therefore, prima facie unless applicant makes it clear by calling appropriate witness from his employer that he was getting such amount as overtime charges, there is no reason to believe that amount, which is paid towards hardship allowance is paid as overtime charges. In any case, even if we believe that some amount is received by the applicant as overtime charges, it cannot be said that it is not his income. Alternatively, even if such amount is deducted from the gross salary of Rs.72000/-, then also, the total earnings of the applicant is certainly more than Rs.50000/-. Thereby, the award of maintenance of Rs.10000/- would certainly come to only 20% of earnings of the applicant. Therefore, there is no substance in the revision application so as to reduce the amount of maintenance awarded by the trial Court by impugned judgment. However, if we peruse the impugned judgment, it transpires that trial Court has taken care of each and every aspect, both on factual and legal issues. The trial Court has taken care of all the evidence on record. The trial Court has also considered the previous litigation between the parties.

7. However, it is contended by learned advocate Mr.Patel that in addition to widow mother, wife and minor son, he is responsible to maintain two unmarried sisters and, therefore, amount of maintenance of Rs.10000/- to the wife is on higher side. However, it seems that applicant has failed to adduce proper evidence to prove his responsibilities in addition to his personal family, if any. Even otherwise, person is liable to maintain his wife and maintenance does not mean fiscal amount or peace of bread, but it includes livelihood. It is settled legal position that maintenance certainly includes shelter, clothes, medicine. In short, everything which is required for living life peacefully and with dignity.

8. So far as entitlement and necessity of maintenance are concerned,  there is no straight jacket formula or strict rules of calculation that how to decide the quantum of maintenance. On the contrary laws applicable to such cases confirms that otherwise wives are entitled to live in similar status as she was residing with her husband when she was deserted and when husband neglects to maintain her.

9. It cannot be ignored that the Apex Court has categorically confirms that Section 125 is a measure of social justice to prevent vagrancy and destitution and thereby it becomes natural duty of a man to maintain wife and children when they are unable to maintain themselves. Amount of maintenance can be determined considering the value of rupee and inflammation as well as ability of husband to pay. Thereby if respondent - husband is having good income then certainly good amount of maintenance is to be awarded to applicant - wife but if income of husband is not good enough then amount may not be sufficient enough so as to enable wife to maintain herself and she may need financial support from others like parents or even by earning some amount on her own so as to maintain herself. In that case award of amount of maintenance would be for basic support to maintain deserted person. Whereas, if husband is having handsome income then there is no bar to award a good amount of maintenance so as to enable the deserted wife to stay and live her life in proper condition.

10. In view of above, if we referred the cited cases on the subject, it becomes clear that at least in case of Bhushan Kumar Meen v. Mansi Meen reported in (2010) 15 SCC 372 the Apex Court has awarded maintenance of Rs.5000/- only for a wife from the husband who is earning Rs.9000/-. Whereas, in case of Chanmuniya v. Virendra Kumar Singh Kushwaha reported in (2011) 1 SCC 141, the Honourable Apex Court has confirmed that maintaining the wife, children and parents is a measure of social justice to prevent vagrancy  and destitution. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

11. In case of V.D.Bhanot vs. Savita Bhanot reported in (2012) 3 SCC 183, while dealing with the maintenance under Domestic Violence Act, the Honourable Apex Court has confirmed that husband must provide a suitable portion of his residence, properly furnished and with all amenities, to wife by way of her right to residence and protection with such observation amount of Rs.10,000/- for alternative accommodation was reduced to Rs.4000/- under the Domestic Violence Act with direction to provide suitable properly furnished residence with all amenities, which is to be paid in addition to Rs.6000/- awarded towards maintenance to the wife against Army Officer, under Section 125 of the Code of Criminal Procedure. Thus total support is more than Rs.10,000/- per month from a person whose income may not be as handsome as present respondent.


12. Considering the overall facts and circumstances and earning capacity of the respondent - husband, as referred herein above since there is no mathematical formula for consideration of monthly amount of maintenance, in present days of inflammation which increases day by day and considering the fact that the Honourable Supreme Court has granted suitable accommodation with Rs.10,000/- as maintenance from Army Officer, it would be appropriate to award Rs.25,000/- per month in favour of the applicant - wife.

13. Therefore, it cannot be said in any manner that Rs.10000/- is on higher side when application is earning more than Rs.50000/-. I do not see any merit in the present revision application and same deserves dismissal.

14. For the foregoing reasons, the Criminal Revision Application is  dismissed.

(S.G.SHAH, J.)


binoy



*****************

FOLLOW http://twitter.com/ATMwithDick on twitter or http://vinayak.wordpress.com/ on wordpress or http://evinayak.tumblr.com/  FOR 100s of high court and supreme court cases
  
  
regards
  
Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist