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2009 DIGILAW 370 (UTT)

JAYA KANDWAL v. KHUSHIRAM KANDWAL

2009-07-15

B.S.VERMA, PRAFULLA C.PANT

body2009
Judgment [Per : Hon’ble Prafulla C. Pant, J. (Oral)] This appeal, preferred under Section 19 of the Family Courts Act, 1984, is directed against the judgment and order dated 16th of May 2007, passed by Principal Judge, Family Court, Dehradun, in Suit No. 355 of 2005, whereby the said court has awarded maintenance at the rate of Rs. 3,000/- per month to the appellant and her daughter. The appellant has sought enhancement of the maintenance awarded by the trial court under Section 18 of the Hindu Adoptions and Maintenance Act, 1958. 2. Heard learned counsel for the parties and perused the lower court record. 3. Brief facts, giving rise to this appeal, are that the appellant got married to respondent on 25.05.1994, at Dehradun. After the marriage, she started living with her husband at Haridwar, i.e. place of his posting. Out of the wedlock a female child was born on 16.10.1995. The appellant has alleged in the petition moved under Section 18 of the Hindu Adoptions and Maintenance Act, 1956, for maintenance at the rate of Rs. 20,000/- per month that her husband (respondent) treated her with cruelty. She was forced to leave along with the daughter on 02.05.1997 house of the respondent and started living in her parental house in Delhi. It is further alleged by the appellant/petitioner that income of the respondent is Rs. 30,000/- per month. It is also pleaded that the petitioner (appellant) has no source of income. 4. The respondent contested the petition before the trial court and filed his written statement. He admitted having married to the appellant. It is also not disputed that a daughter (named Shatakshi) born out of the wedlock. However, as to the rest of the contents of the petition, the same are denied. It is pleaded by the respondent that it was the appellant who used to quarrel with him. He has alleged that appellant used to hurl abuses at him and she used to give threat to kill the respondent. It is also alleged by the respondent that though the respondent is employed in a bank and has a lump sum salary of Rs. 21,000/- per month, but after deductions he is getting only Rs. 4,442/- per month. It is also alleged by the respondent that the appellant is earning Rs. 10,000/- per month. It is also alleged by the respondent that though the respondent is employed in a bank and has a lump sum salary of Rs. 21,000/- per month, but after deductions he is getting only Rs. 4,442/- per month. It is also alleged by the respondent that the appellant is earning Rs. 10,000/- per month. It is also alleged that without any sufficient reason the appellant has left the company of the respondent. 5. On the basis of the pleadings of the parties, the trial court framed following issues: (i) Whether, the petitioner is unable to maintain herself and her daughter? (ii) Whether, the petitioner is entitled to maintenance for herself and her daughter? If so, of what amount? (iii) To what relief, if any, the petitioner is entitled? 6. After recording the evidence and hearing the parties, the trial court found that the petitioner is unable to maintain herself and her daughter. It also found that the respondent is working in a bank and his approximate salary without deductions is Rs. 21,986/- per month. The trial court further found that the petitioner/appellant has sufficient reason to live separately from her husband. It is further found that the appellant is not an earning member. With these findings, vide impugned order dated 16.05.2007, passed in Suit no. 355 of 2005, the trial court (Principal Judge, Family Court, Dehradun) awarded Rs. 3,000/- per month as maintenance. Aggrieved by said order, this appeal has been filed by the petitioner for enhancement of the amount of maintenance. 7. Admittedly, appellant got married to respondent on 25.05.1994. It is also admitted to the parties that they lived together in Haridwar and a female child (named Shatakshi) born out of the wedlock on 16.10.1995, at Dehradun. It is also not disputed between the parties that since 02.05.1997, appellant is living separately from her husband (respondent) along with Km. Shatakshi in Delhi, with her mother. It is proved on the record that respondent Khushiram Kandwal is employed in a bank and his monthly earning without deduction is around Rs. 22,000/- per month. Though, in the affidavit filed in evidence by the respondent it is stated that his wife is earning Rs. 10,000/- per month, but there is nothing on the record in the form of documentary evidence which corroborates this fact. P.W.1 Jaya Kandwal has specifically denied that she is earning as alleged by her husband. 22,000/- per month. Though, in the affidavit filed in evidence by the respondent it is stated that his wife is earning Rs. 10,000/- per month, but there is nothing on the record in the form of documentary evidence which corroborates this fact. P.W.1 Jaya Kandwal has specifically denied that she is earning as alleged by her husband. Having re-assessed the evidence on record, we agree with the trial court that the wife is unable to maintain herself and her daughter, while respondent has sufficient means to maintain his wife. 8. Learned counsel for the respondent argued that the petition has been filed under Section 18 of the Hindu Adoptions and Maintenance Act, 1956, and it is only the wife who is entitled to maintenance under said provision, not the daughter. Perusal of the enactment shows that under Section 20 of the Act, children are also entitled to seek maintenance. Had Km. Shatakshi been impleaded with Jaya Kandwal, even if Section 20 is not mentioned in the petition, this Court could have presumed that the petition is under Section 18 read with Section 20 of the Act. However, since Km. Shatakshi is admittedly living with her mother (appellant) who is maintaining her, as such, while assessing the amount of maintenance to the wife this fact is a relevant fact that wife had to maintain Km. Shatakshi (daughter of the parties). Since, the petition is not filed on behalf of Shatakshi, as such, nothing has been separately awarded by the trial court to her. In awarding the maintenance to the wife the relevant factors to be considered are – the economic status of the parties and the earning of the person who has to pay the amount of the maintenance. It is established on the record that monthly income of the respondent (husband) is Rs. 22,000/- per month (without deductions). It is also proved on the record that wife is not the earning member in this case. Though, the child has not sought separate maintenance, but this fact cannot be ignored that she is living with the appellant. 9. Learned counsel for the appellant argued that amount of Rs. 3,000/- per month in present day, is not sufficient to maintain the appellant herself and her daughter, who is living with her. On the other hand, learned counsel for the respondent argued that after deduction the respondent is getting less than Rs. 9. Learned counsel for the appellant argued that amount of Rs. 3,000/- per month in present day, is not sufficient to maintain the appellant herself and her daughter, who is living with her. On the other hand, learned counsel for the respondent argued that after deduction the respondent is getting less than Rs. 5,000/- per month out of his salary. We have gone through the evidence on record. As far as the compulsory deductions are concerned like provident fund, income tax etc., undoubtedly, the same are to be deducted while assessing the monthly amount of maintenance, but the deductions which are not necessary for the husband to get deducted cannot be taken into account to reduce the amount of maintenance entitled by the wife. In the case of the house loans if an employee gets deducted higher amount of instalments, and thereby deprives the wife of her maintenance, it cannot be said to be a fair conduct on his part. 10. Having re-examined the evidence on record, and after considering the submissions of learned counsel for the parties, we are of the view that the appellant is entitled atleast Rs. 5,000/- per month as maintenance from her husband (respondent), particularly, in view of the fact that she has to maintain a minor daughter. 11. Therefore, this appeal is partly allowed. The impugned judgment and order dated 16.05.2007, passed by the trial court, is modified to the extent that the respondent shall pay Rs. 5,000/- per month as maintenance to the appellant from the date of the impugned order i.e. 16.05.2007.