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2005 DIGILAW 897 (MAD)

R. Jeyachandran v. Banu

2005-06-21

R.BANUMATHI

body2005
Judgment :- This revision is directed against the order made in I.A.No.1386/2001 in O.P.No.1024/2001 by the II Additional Family Court, Chennai dated 24.9.2003, directing the Revision Petitioner/husband to pay interim maintenance of Rs.4000/- per month. 2. The marriage between the Revision Petitioner and the Respondent was solomnised on 2.7.1976. They have one adult son and a grown up daughter. The Revision Petitioner is said to be employed as a Driver in Port Trust. Differences arose between the spouses. The Revision Petitioner filed petition under section 13(1)(i)(a) of the Hindu Marriage Act for divorce. 3. During the pendency of the matrimonial petition, the Respondent wife has filed I.A.No.1386/2001, claiming maintenance of Rs.7,000/- per month. That Application was resisted by the Revision Petitioner/Husband contending that he has borrowed several hand loans from known persons and that he has financial commitments. It is also alleged that the wife is carrying finance business lending hand loan to known persons, out of which, she is earning income. It is also stated that an amount of Rs.50,000/- has been deposited in the name of daughter – Datchayani, for a period of five years with a maturity value of Rs.80,937/- in Indian Bank. Further, it is said that the son Senthil Kumar is employed at TSN and earning income. Maintenance claim of wife is resisted on the ground she has sufficient means and that the Revision Petitioner husband is not liable to pay the amount. 4. Upon consideration of the contentions of both parties, the learned Judge, Family Court has ordered the Revision Petitioner/husband to pay a maintenance of Rs.4000/- per month. Aggrieved over the same, this revision has been preferred by the Revision Petitioner/husband. At the time when the Revision petition was admitted, this Court has directed the Revision Petitioner to pay the maintenance at the rate of Rs.3000/- per month. 5. The learned counsel for the Revision Petitioner/ husband has submitted that the Revision Petitioner has already retired and that he is unable to pay the maintenance amount to the Respondents. Submitting that the Revision Petitioner's carry home salary is only Rs.3,646.24/- and that he cannot be burdened with obligation to pay the maintenance of Rs.4000/-, the learned counsel for the Revision Petitioner prayed to set aside or modify the interim order of maintenance. 6. Submitting that the Revision Petitioner's carry home salary is only Rs.3,646.24/- and that he cannot be burdened with obligation to pay the maintenance of Rs.4000/-, the learned counsel for the Revision Petitioner prayed to set aside or modify the interim order of maintenance. 6. Countering the arguments, the learned counsel for the respondent wife submitted that the children are residing with the mother and that the daughter Datchayani is physically handicapped and that she has to be maintained only from out of the maintenance amount. Submitting that the Revision Petitioner's gross amount of salary is more than Rs.16,000/-, the learned counsel for the Respondent/wife has submitted that the order of interim maintenance directing the Revision Petitioner to pay Rs.4000/- per month is reasonable, warranting no interference. 7. Admittedly, the Revision Petitioner has been employed as a Driver (Employee Code No.10451) in the Port Trust. From the Salary Certificate produced by the Revision Petitioner, it is seen that his gross income is Rs.16,754.50/-. Total deduction is Rs.12,928.26/- and the take home salary is only Rs.3,646.24/-. By perusal of the Salary Certificate, it is seen that there are a number of deductions. It may be that the Revision Petitioner/husband may have availed several facilities, resulting in deductions. But his gross salary is Rs.16,754.50/-. In such circumstances, the carry home salary of Rs.3,646.24/- cannot be the guiding factor to determine the maintenance amount payable. Only the gross amount is to be taken into account. It is said that the Revision Petitioner/husband has already retired. No documents are produced showing his retirement. Since the Revision Petitioner/husband has been employed as a car driver, for the sake of arguments, even if we were to assume that he has retired, he must be getting pension around 50% of the salary. Admittedly, both the son and the physically handicapped daughter are with the custody of the Respondent/ wife. The Revision Petitioner is under obligation to pay the maintenance. At the time of admission of the revision, in C.M.P.No.557/2004 this Court has ordered the revision Petitioner to pay maintenance of Rs.3000/- per month. Taking into consideration the salary of the Revision Petitioner/ husband and other circumstances, interest of justice would be met by maintaining the order of this Court directing the Revision Petitioner to pay maintenance at the rate of Rs.3000/- per month. 8. Taking into consideration the salary of the Revision Petitioner/ husband and other circumstances, interest of justice would be met by maintaining the order of this Court directing the Revision Petitioner to pay maintenance at the rate of Rs.3000/- per month. 8. After the order was passed in CMP No.557/2004 on 3.2.2004, it is said that the Revision Petitioner has paid Rs.97,000/- towards the arrears of maintenance, as noted below : 9. Admittedly, Revision Petitioner is to pay the arrears from April 2004. Hence he is directed to pay the arrears of maintenance from April 2004 till this date in two installments, within two months, 50% of the arrears is payable within one month from this date and balance 50% to be paid within a month thereafter. 10. The order made in I.A.No.1386/2001 in O.P.No.1024/ 2001 by the II Addl. Family Court, Chennai is modified and this revision petition is partly allowed. The Revision Petitioner is directed to pay the arrears of maintenance as directed in para(9) of this order. Consequently, CMP No.557 of 2004 is closed. In such circumstances of the case, there is no order as to costs.