Allahabad High Court says payment made by husband towards monthly installment of personal loan added to his net monthly income

While determining the monthly maintenance allowance payable to the wife under section 125 CrPC, the Allahabad High has observed that the payment made by the Husband towards the monthly instalment of personal loan has to be added to his net monthly income.

The Court held that Section 125 of the Code of Criminal Procedure is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing, and shelter to the deserted wife.

A Single Bench of Justice Surendra Singh-I heard the petition filed by Rakhi @ Rekha.

By means of the criminal revision, revisionist has assailed the order dated 01.11.2022 passed by the Principal Judge, Family Court, Amroha in Case under Section 125 Cr.P.C, Police Station Amroha, District Amroha.

By the impugned order, the trial Court has granted a monthly maintenance allowance of Rs 5,000/- to the revisionist from the date of presentation of application under Section 125 CrPC. The revisionist has prayed for enhancement of maintenance allowance granted by the trial Court in her favour. The opposite party No 2 has not challenged the aforesaid impugned order, therefore, findings in the impugned judgment and findings regarding the marriage of the revisionist with opposite party No 2 as well as there being sufficient reason for her residing away from the opposite party No 2, has become final.

It has been submitted by the counsel for the revisionist that the criminal revision has been filed on the point of quantum of maintenance payable to the revisionist contending that it is quite meagre considering the monthly net income of the opposite party No 2 (husband).

The averments have been made on behalf of the revisionist that admittedly opposite party No 2 is working in Indian Navy and he is getting monthly salary of about Rs 35,000/- to 40,000/- per month. The trial Court may have fixed at-least 25 % of the net monthly salary of the opposite party No 2, but the trial Court has awarded maintenance allowance of Rs 4000/- till date of order, and thereafter, Rs 5000/-, which is on the lower side.

It has also been submitted that the trial Court has not given any reason for fixing aforesaid monthly maintenance allowance payable to the revisionist. It has also been submitted that earlier trial Court vide judgment and order dated 11.02.2020 had ex parte granted Rs 12,000/- per month as interim maintenance allowance to the revisionist.

Later on, recall application under Section 126 (2) Cr.P.C was filed by the opposite party No 2, which was allowed and there is no ground to provide the revisionist lesser monthly maintenance allowance than the interim one, since the trial Court passed the impugned judgment and order without considering the evidence on record and without applying judicial mind it should be enhanced.

Per contra, counsel for the opposite party No 2 has submitted that trial Court has passed the order on the basis of oral and documentary evidence on record and there is no ground to make interference into it.

It has also been submitted that interim maintenance was passed ex-parte without considering the contentions raised by the opposite party No 2. The trial Court has rightly granted a reasonable maintenance allowance, which is not liable to be altered.

Counsel for the opposite party No 2 has raised objection about the maintainability of the criminal revision and contended that the revisionist should have filed an application under Section 127 Cr.P.C in the trial Court itself for enhancement of the amount of monthly maintenance allowance.

It has also contended that since there is a statutory provision for enhancement of the amount of maintenance allowance under Section 127 Cr.P.C, the criminal revision for such enhancement is not maintainable in the Court.

The revisionist has filed the criminal revision for enhancement of the amount of monthly maintenance allowance not on the ground of change of circumstances, since the order was passed but on the ground that the trial court while fixing the amount of monthly maintenance allowance has not considered the evidence on record, therefore, order passed is illegal or liable to be altered.

Counsel for the opposite party No 2 has raised a preliminary objection as per jurisdiction of this Court in view of the provision given in Section 127 Cr.P.C for enhancement of maintenance allowance.

The Court observed that,

From the salary slip of opposite party No 2, it appears that deduction of Rs 20,664/- includes inter alia for house rent, payment of instalment of personal loan of Rs 9000/- per month. Therefore, deduction of Rs 9000/- per month made for payment to the monthly instalment of personal loan is not permissible and it should be added in the net monthly income of the opposite party No 2. Thus, his net monthly income becomes Rs 34020 +Rs 9000/- i.e Rs.43,020/-.

In reply to the application filed under Section 125 Cr.P.C as well as in the oral evidence produced by the opposite party No 2, he has submitted that his father is patient of heart and blood pressure, for which he has to spend Rs15,000 to 16,000/- per month for medicine and he also submitted that his mother is also suffering from liver disease and her treatment is going on, for which, he has to spend Rs10,000/- to 12,000/- per month. In this regard, no documentary evidence, prescription of doctor and medicine receipts for purchase of medicines have been filed by the opposite party No 2, therefore, this cannot be accepted that for treatment of his parents, he has spent aforesaid amount on medicine.

Opposite party No 2, in his reply as well as oral evidence, has submitted that revisionist is B.A pass and earns Rs10,000/- per month by taking tuition and she has done course of beautician, by which she can also earn money and she has enough money to maintain herself, but opposite party No 2 has not produced any documentary evidence in support of earning of the revisionist.

 The Court further observed that,

Considering the law laid down by the Apex Court merely on the ground that revisionist is B.A pass and has done some professional course, no presumption can be drawn that she is earning sufficient money to maintain herself. Thus the plea advanced on behalf of the opposite party No 2 (husband) is without any legal basis.

In Kalyan Dey Chowdhury vs Rita Dey Chowdhury Nee Nandy: (2017) 14 SCC 200, the Apex Court has held that 25% of the husband’s net salary would be just and proper to be awarded as maintenance to the 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.

In view of the aforesaid factual and legal aspect, the Court is of the view that the order dated 01.11.2022 is erroneous and cannot survive in the eyes of law, therefore, the Court set aside the impugned order for the aforesaid reasons.

“The prayer for enhancement of maintenance allowance made by revisionists is allowed and it is observed that she will be entitled for Rs 10,000/- per month, which is approximately 25 % of the next monthly income of Rs 43,020/-, as maintenance allowance.

Thus, opposite party No 2 shall be bound to provide maintenance allowance of Rs 10,000/- per month to his wife (revisionist) from the date of application. The arrears of maintenance allowance shall be paid by the opposite party No 2 in four equal instalments within a period of four months. The monthly interim maintenance shall be paid regularly till 7th day of each month”, the order reads.

The Court allowed the criminal revision in terms of above mentioned conditions.

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