Allahabad High Court says if actual income not on record, maintenance allowance can be determined by estimated income

The Allahabad High Court said that if the actual income is not on record, then the maintenance allowance can be determined by estimating the estimated income.

A Single Bench of Justice Surendra Singh-I heard the petition filed by Shaily Mittal and 2 Others.

By means of the criminal revision, revisionists have assailed the order dated 25.01.2023 passed by the Principal Judge, Family Court, Muzaffarnagar in Case under Section 125 CrPC.

By the impugned order, the trial Court has granted interim maintenance of Rs 7,000/- to the revisionist No 1(wife) and Rs 2,000/- to the revisionist Nos 2 and 3 (children) per month each, under Section 125 CrPC. The revisionists have prayed in the revision for enhancement of maintenance allowance granted by the trial Court in their favour.

It has been submitted by the counsel for the revisionists that before calculating the quantum of maintenance, the trial court has not taken into consideration the income of the opposite party No 2 (husband).

It has also been submitted that opposite party No 2, in his cross-examination, has admitted that he has National Saving Certificates (N.S.C), Rs 45,000/- in his PPF Account and F.D.R of Rs 11,00,000/- but without considering the same, trial Court granted meagre amount of maintenance allowance to the revisionists.

It has been submitted by the counsel for the revisionist that the trial Court illegally came to the conclusion that revisionist No 1 did not prove the income of the opposite party No 2, in fact the revisionist No 1 by her oral and documentary evidence has very well proved that opposite party No 2 has huge source of income and also many properties. Therefore, the trial Court had committed illegality in allowing maintenance allowance to the revisionists.

It has also been submitted that opposite party No 2 is a copartner in his family business of Saree and he is earning half of the total income arising out of aforesaid family business, but trial Court has wrongly considered that the owner of the aforesaid business was his brother, namely, Rajesh Kumar Mittal and opposite party No 2 was working there as salesman drawing salary of Rs 7000/- per month only.

It has also been submitted that opposite party No 2 has not filed any criminal revision against the impugned judgment and order, therefore, finding of the trial Court regarding the matter other than quantum of maintenance allowance to be payable to the revisionists has become final.

Per contra, counsel for the opposite party No 2 while opposing the criminal revision has submitted that under the provision of Section 19 of the Family Court Act, 1984, the revision should have been filed before the Division Bench of the High Court.

He also raised an objection that revisionists could have obtained the aforesaid relief for enhancement of monthly allowance from the trial Court, therefore, the revision for the aforesaid relief is not maintainable and the same is liable to be dismissed.

The Court observed that,

From the deposition of opposite party No 2, it transpires that he belongs to a reputed business family of Shamli District and his father and brother are the proprietor of Raj Cutpiece Centre and have a Saree shop. From his deposition, it is also obvious that he is continuously depositing money in his PPF Account, F.D and R.D.s and Saving Bank Account. The PPF account has been increased from 20 lakhs to 45 lakhs and he has also purchased a plot of 240 square yard in the city at the value of Rs 20 lakhs. From the aforesaid description of the parental property as well as business transactions of his shop relating to wholesale business of cutpiece and Saree of his father and brother respectively and regular deposits and investment by him in various accounts, it appears that he has a regular income and his monthly income is fairly good.

From the above description, it is not believable that he is simply working as a salesman in his brother’s shop and earning Rs 7000/- to 8000/- per month.

The Court has to do some guess work to determine the income of the husband and wife. From the above discussion, it can be safely concluded that his monthly income is not less than Rs 60,000/- per month. It is well settled law that income of the husband or wife cannot be calculated in mathematical terms because actual income cannot be brought on record as both the parties are interested in concealing their incomes.

The 25% of net earning of the husband should be granted as maintenance allowance to the wife. The revisionist No 2 (daughter) of the opposite party No 2 is doing engineering course and revisionist No 3 (son) completed 12th and is preparing for admission in professional course.

Under these circumstances, it will be fair and just to provide 25 % of the gross income of the opposite party No 2 to the revisionist No 1 (wife) and 20 % of his gross income as maintenance allowance to the revisionist No 2 and 3.

“Considering the law propounded by the following decisions and facts and circumstances of the case, there is sufficient ground to allow the criminal revision and enhance the amount of maintenance allowance to be paid to the revisionist Nos 1, 2 and 3.

In view of the aforesaid factual and legal aspect, I am of the view that the maintenance allowance granted by the impugned order dated 25.01.2023 is unjust and inadequate and should be modified and enhanced. The maintenance allowance granted by the impugned order is modified accordingly”, the Court further observed while allowing the criminal revision.

“It is provided that revisionist no 1 shall be entitled for Rs 15,000/- per month as maintenance allowance. Revisionist Nos 2 and 3 (daughter and son of the opposite party No 2) each shall be paid Rs 6,000/–6,000/- per month as maintenance allowance.

Thus, opposite party No 2 shall be bound to provide maintenance allowance @ of Rs 15,000/- per month to his wife (revisionist No 1) and Rs 6,000/- – Rs 6,000/- to revisionist Nos 2 and 3 each till they attain the age of majority. This modified amount of maintenance allowance shall be paid to the revisionists from the date of application. The arrears of maintenance allowance shall be paid in four equal instalments at the gap of four months. The monthly maintenance allowance shall be paid regularly till 7th day of each month. 

The order dated 25.01.2023 is set aside in part and it is modified according to the observation made above”, the Court ordered.

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