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2006 DIGILAW 580 (RAJ)

Alka Dadich v. Family Court, Ajmer

2006-02-20

PREM SHANKAR ASOPA

body2006
Judgment Prem Shanker Asopa, J.-That by this writ petition the petitioner has challenged the order dated 112.2004 passed by the Judge, Family Court, Ajmer whereby arrears of maintenance from 112.2001 to 112.2004 to the tune of Rs. 43,543/-, has been granted against claim of Rs. 1,13,886/-on the basis of the statements produced by the parties. 2.The admitted case of the parties is that the respondent is an Army Personnel and as per Army regulations and circular, the wife is entitled 22% maintenance whereas the child is entitled for 5.5%. Thus, both are entitled 27.5%. The parties are also not disputing the fact that the said payment is to be made as per Army Regulations and Circular relevant for the purposes of calculation of the total salary. 3.The subject matter of the dispute before the trial Court and before this Court is the calculation of the monthly salary for payment of arrears from 112.2001 to 112.2004. 4.The submission of Mr. Lodha is that while calculating the salary, some of the allowances have not been added and apart from that the increase by adding yearly increment, fixation and revised pay scale and on account of promotion have also not been added. Mr. Lodha has also objected that income tax deduction has also been shown in the salary chart, which cannot be the subject matter of reducing the income. 5.Mr. Ravi Kasliwal, Counsel for the respondent Ajay Dadich has submitted that the Army Personnel has calculated the amount as per the regulation and circular. 6.This Court has called the relevant information from the Counsel for Union of India Mr. Sanjay Pareek who made available the same to both the parties. The Counsel for the petitioner has objected the said calculation. 7.The Family Court while passing the order dated 112.2004 has made the statements filed by the parties basis for the calculation of the arrears of maintenance. The relevant portion of which is reproduced hereunder for ready reference:- 8.After adjusting the paid amount of the aforesaid period, the Family Court has ordred for making the payment of maintenance allowance, bank charges totaling Rs. 43,543/- 9.I have gone through the contents of the writ petition and considered the rival submissions of the parties. The relevant portion of which is reproduced hereunder for ready reference:- 8.After adjusting the paid amount of the aforesaid period, the Family Court has ordred for making the payment of maintenance allowance, bank charges totaling Rs. 43,543/- 9.I have gone through the contents of the writ petition and considered the rival submissions of the parties. 10.The order has been challenged under Article 227 of the Constitution of India and this Court cannot sit as an appellate Court over the said order but I find that the trial Court has based its Judgment on the basis of the statements filed by the parties whereas it should have been on the basis of the calculation made by the Army Personnel with a further right to object the same to the limited extent that the said calculation is not in accordance with the regulation and circular issued by the Army Personnel. 11.In view of the above, the writ petition is allowed to the extent of reconsideration of the issue of maintenance by the Family Court, Ajmer and I remit the matter back to the Family Court, Ajmer, to reconsider the matter after hearing both the parties after giving an opportunity to produce documents and further allow them to object the same as indicated above. The aforesaid matter be decided within a period of one month from the date of production of certified copy of this order and till then the order passed by the Family Court shall continue. 12.The writ petition stands disposed of as indicated above.