Chandrikaben Chhanalal Patel v. Rameshchandra Chandilal Patel
1985-09-30
A.P.RAVANI
body1985
DigiLaw.ai
JUDGMENT : A.P. Ravani, J. The petitioner is the original applicant who filed an application for maintenance in the Court of Metropolitan Magistrate (Court No. 15), Ahmedabad. The trial Court on appreciation of evidence and after hearing the parties granted maintenance at the rate of Rs. 170/- per month from the date of application i.e. December 26, 1984 and also granted Rs. 50/- by way of costs. The trial Court accordingly directed the opponent to make the payment as stated above. The aforesaid judgment was delivered on January 15, 1985. 2. The petitioner-wife felt aggrieved by the inadequacy of the maintenance amount awarded by the trial Court and hence preferred this Revision Application praying that the amount of maintenance granted by the trial Court is abnormally inadequate and the amount should be enhanced further. 3. The opponent-husband is serving as Assistant Engineer in P.W.D. of the State of Gujarat. It has come in evidence that the salary of the opponent was between Rs. 1,300/- to Rs. 1,400/- and the amount of Rs. 200/- was being deducted therefrom towards P.F. etc. It was also pointed out before the learned Magistrate that a Hindu Marriage Petition was filed by the opponent praying for divorce of the marriage between the parties. Therein the petitioner-wife had filed application for interim maintenance and the Court bearing Hindu Marriage Petition had ordered opponent husband to pay an amount of Rs. 150 as and by way of alimony. The trial Court did not believe the version of the opponent-husband that the petitioner was able to maintain herself. The trial Court has not given any reason whatsoever as to why the amount of Rs. 170/- was being fixed as and by way of maintenance. It appears that the trial Court was influenced by the circumstance that an amount of Rs. 150/- per month was fixed by the Civil Court as interim alimony in Hindu Marriage Petition. Be it noted that this Hindu Marriage Petition filed by the opponent-husband for claiming divorce, has now been withdrawn by the opponent. The Counsel for the petitioner has produced certified copy of the withdrawal purshis dated January 21, 1985 filed by the opponent. Thereon an endorsement appears to have been made by the Counsel for the petitioner-wife objecting to the withdrawal on the ground that no amount of alimony whatsoever had been paid to the wife or deposited in the Court.
The Counsel for the petitioner has produced certified copy of the withdrawal purshis dated January 21, 1985 filed by the opponent. Thereon an endorsement appears to have been made by the Counsel for the petitioner-wife objecting to the withdrawal on the ground that no amount of alimony whatsoever had been paid to the wife or deposited in the Court. However, it is clear that the petition has been allowed to be unconditionally withdrawn by the learned Assistant Judge, as per his order, dated January 21, 1985. The purshis is ordered to be taken on record. In this view of the matter the order of interim alimony passed by the learned Assistant Judge in Hindu Marriage Petition, has no relevance whatsoever. While fixing the amount of maintenance is proceedings under Section 125 of the Criminal Procedure Code the order that may be passed by the Civil Court will have definite relevance. But the interim orders passed by the Civil Court in the proceedings under the Hindu Marriage Act or in other matrimonial proceedings, cannot be taken as the sole basis for fixing the amount of maintenance. The Court may take that circumstance into consideration but there cannot be the sole criteria for fixation of the maintenance amount. 4. In the instant case admittedly the income of the opponent is bet- ween Rs. 1,300/- and Rs. 1,400/-. The opponent is serving as Assistant Engineer. At the time when he gave deposition in the trial Court, that is on 14th December, 1984 he was 34 years of age. He has many years to go in service. It appears that the opponent has five other brothers and all are married. The parents of opponent No. 1 are alive. But it is not clear from the judgment of the lower court as to whether the opponent-husband has to maintain his old parents. Even if the opponent-husband is required to maintain his old parents, the fact that other five brothers are also there is look after their comforts and well being, cannot be lost sight of. The liability of the opponent-husband to pay the maintenance has been fixed by the trial Court. There is no challenge to this part of the order. The only question involved in this petition is as to how much amount should be directed to be paid as and by way of maintenance to the petitioner-wife. 5.
The liability of the opponent-husband to pay the maintenance has been fixed by the trial Court. There is no challenge to this part of the order. The only question involved in this petition is as to how much amount should be directed to be paid as and by way of maintenance to the petitioner-wife. 5. The trial Court has committed an error in deducting the amount of Rs. 200/- from total salary of the opponent-husband. The amount which is being deducted from his salary would be by way of contribution towards Provident Fund or it may be by way of instalments of repayment of loans which might have taken by the opponent. In either case it would be the amount which would go for the benefit of the opponent himself. If the amount is being deducted towards Provident Fund Contribution, then the opponent himself is going to get the benefit of the savings which he may get in future. If he has taken the loan and the amount is being deducted towards the instalment of loan then in that case he has already enjoyed the cash received by him and he is repaying the debts. In either case this amount cannot be deducted from total earnings of the opponent-husband. 6. As found by the learned Magistrate, the total salary of the opponent-husband is between Rs. 1,300/- and Rs. 1,400/-. Having regard to the status of the opponent-husband who is serving as Assistant Engineer it is necessary that the petitioner-wife also should live the life in the way that would be fit the status of the opponent-husband. In these hard days of rising cost, at least an amount of Rs. 450/- per month should be awarded to the petitioner-wife so as to maintain herself with ordinary comforts which could be expected of a wife of an Assistant Engineer serving with the Government. Moreover, this amount would be only ?rd of the total salary of the opponent-husband. As found by the learned Magistrate, the total salary of the opponent-husband is between Rs. 1,300/- and Rs. 1,400. Therefore, one may take the salary of the opponent-husband at Rs. 1,350/- per month and dividing it by 3, the amount would come to Rs. 450/- per month. In the instant case one-third of the amount of the total earning of the opponent-husband. would be reasonable rate of maintenance to be awarded to the petitioner-wife. 7.
1,300/- and Rs. 1,400. Therefore, one may take the salary of the opponent-husband at Rs. 1,350/- per month and dividing it by 3, the amount would come to Rs. 450/- per month. In the instant case one-third of the amount of the total earning of the opponent-husband. would be reasonable rate of maintenance to be awarded to the petitioner-wife. 7. In the result the Revision Application is allowed. The opponent- husband is directed to pay Rs. 450/- per month regularly (instead of Rs. 170/- per month as directed by the Trial Court) to the applicant-wife as and by way of maintenance from the date of application i.e. 26th December, 1984. Rule made absolute accordingly. Revision allowed.