Reeta Sharan @ Saroj Sharan v. Shelendra Ganpat Prasad Sharan
1998-11-06
R.S.GARG
body1998
DigiLaw.ai
ORDER R.S. Garg, J. 1. Being aggrieved by grant of less maintenance amount, the applicant wife has filed this revision petition for enhancement. 2. Short question for consideration in this revision petition is that what is the real income of the non-applicant. It is also required to be considered whether out of the total salary, maintenance amount is to be paid to the wife or the amount has to be paid from the carry home salary 3. The documents show that the total emoluments which the non- applicant is receiving from his employer are Rs. 10,074.56. The details show that the applicant is required to pay a sum of Rs. 625/- as E.P.F., Rs. 200/- as income tax, Rs. 922.80 as charge for premium, Rs. 500/- towards P.F. loan, Rs. 10/- per month as Union Fee, Rs. 200/- towards income tax (it appears to have been counted twice), Rs. 850/- towards Housing Loan, Rs. 50/- towards cycle loan, Rs. 450/- towards festival advance, Rs. 400/- towards personal loan, Rs. 250/- towards conveyance loan, Rs. 200/- towards N.S.C. loan, Rs. 212/- towards claim loan and Rs. 50/- towards professional tax. The total deductions come to Rs. 4,919.80 and according to the certificate the carry home salary is Rs. 5,154.76. The Court below apart from it, has also taken into consideration another certificate which shows that the applicant is required to pay Rs. 1,356.38 as insurance premium. At the very outset, it can be observed that the court below has not taken into consideration the certificate relating to insurance premium in its true perspective. The said certificate contains an amount of Rs. 922/- which is also mentioned in the other certificate at item No. 3 of the deductions. Apart from it, the court below has not taken into consideration that the income tax deductions have been shown at two places. 4. Be that as it may, in any case the carry home salary of the non- applicant would not be less than Rs. 5,000/- per month. 5. The crucial question for consideration is whether the amount is required to be paid from the total salary or from the carry home salary. It appears that out of the total deductions of Rs. 4,919.80 deductions of Rs. 625/- towards provident fund, Rs. 200/- towards income tax, Rs. 10/- towards Union Fee, Rs. 200/- towards income tax, assuming it to be another tax, Rs.
It appears that out of the total deductions of Rs. 4,919.80 deductions of Rs. 625/- towards provident fund, Rs. 200/- towards income tax, Rs. 10/- towards Union Fee, Rs. 200/- towards income tax, assuming it to be another tax, Rs. 50/- towards professional tax, are deducted, the total amount would be Rs. 1,085/- only. Apart from these deductions, all other deductions are in relation to loans which have already been taken by the non-applicant husband. The court cannot blindly accept the salary certificate issued by the authority. It has to see whether the deductions are mandatory deductions or voluntary deductions. It cannot be disputed that loan is given to an employee by the employer as part of his salary and ultimately that loan is recovered in instalments. In other words, it can be said that instead of taking the said amount in 12 equal instalments from the salary, it was taken in lump sum in one month and then deductions are made in 12 months. This loan amount is given to the employee from his salary only. If an employee takes loans of different types, then virtually he withdraws his salary for the said year or years in advance and thereafter authorises the employer to deduct the loan from his salary in instalments. He cannot be permitted to say that because of the deductions, he receives much less amount and as such maintenance amount should be on the lower side. It is not the case of the husband that this amount deducted from his salary has not been received by him either as loan or any other benefits. If by taking the amount as part of salary, he enjoys the said amount either as an advance or as a loan, then virtually, he is enjoying his fullest salary. One can understand about the mandatory or legal deductions. If legal deductions are to be made, then the employee would not be entitled to that part so long as the said part is not paid to him. Provident fund amount is a statutory deduction and a person has no right to receive it back unless the employer authorises the employee to receive it. As the employee has no control over such amount, the said deductions would be justifiable. The deductions relating to income tax or professional tax are mandatory. One cannot avoid the liability, if he earns beyond the exempted income.
As the employee has no control over such amount, the said deductions would be justifiable. The deductions relating to income tax or professional tax are mandatory. One cannot avoid the liability, if he earns beyond the exempted income. From the said amount there would be no refund nor the employee would have any control over it. So far as the insurance premiums are concerned, unless it is group insurance or it is insurance under some different policy where every employee is required to subscribe to such insurance, it can be said that the insurance amount or deduction under the said head is mandatory deduction. It is the choice of the employee to opt or not for the private insurance policy, if a person possessing insurance policy dies then his legal heirs, successors or nominees would receive the amount, but if such an employee survives the period of policy, then the entire amount deposited by him under the premium is to be paid back to him. Virtually it is in his favour. 6. The housing loan is not a mandatory loan taken by the employee. On one side he takes the loan to have his own house, then he cannot be permitted to say that because of the deductions of the loan his salary has been reduced pro-rata. It cannot be lost sight of that under the garb of house loan, such employee has taken advance salary which is to be repaid by him in the form of deductions. Similarly the other loans are to be treated. The pay certificate shown to the court shows that the non-applicant husband has taken all possible loans and has permitted his employer to make deductions to bring his carry home salary to the sum of Rs. 5,154/- only, if salary has already been received by the employee in advance in form of loan, then such deductions are not to be allowed in favour of such employee while considering the carry home salary. I am of the considered opinion that in case of such employee only legally permissible deductions are to be deducted and any other amount which is deductible from salary because of voluntary acts of the employee cannot be deducted.
I am of the considered opinion that in case of such employee only legally permissible deductions are to be deducted and any other amount which is deductible from salary because of voluntary acts of the employee cannot be deducted. Taking into consideration the totality of the circumstances and the nature of the loans taken by the non-applicant/husband, I am of the opinion that the court below was not justified in observing that the carry home salary of the non-applicant is Rs. 4,000/- per month, therefore, the wife would be entitled to Rs. 500/- per month towards maintenance. In my opinion, after granting him benefit towards the legally deductible amount, his salary would not be less than Rs. 9,000/- per month. 7. The applicant appears to be a woman of young age who is not employed anywhere. She certainly would be entitled to a sum of Rs. 1,500/- per month towards maintenance, as the income of the husband has been assessed at Rs. 9,000/- per month. I have already taken into consideration the fact that the husband is required to maintain his father and mother. If the husband is required to maintain two persons, then he would be left with a sum of Rs. 7,500/- per month and each in such circumstances would be availing Rs. 2,500/- while the wife under the award would be getting Rs. 1,500/ only. 8. The revision petition is allowed. The husband/non-applicant is directed to pay Rs. 1,500/- per month towards maintenance from 6-12-1997. He shall be obliged to deposit the arrears accrued in favour of the wife latest by 15-1- 1999 but shall be bound to pay monthly amount of maintenance by the 6th of every month. First deposit shall be made by him on 6-12-1998. Looking to the nature of the dispute, I do not find any reason to interfere in the part of the order where the learned court below has allowed Rs. 1,000/- towards legal expenses. 9. The petition is allowed. There shall be no orders as to costs.