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2013 DIGILAW 1011 (KAR)

J. Ramesh Babu v. S. Saraswathi

2013-08-29

A.S.BOPANNA

body2013
JUDGMENT 1. The petitioner is before this Court assailing the order dated 16.03.2011 passed in C.Misc.No.310/2009. By the impugned order, the Court below while granting interim maintenance pending consideration of C.Misc.No.310/2009 has directed the respondent herein to pay Rs.5,000/-per month to the petitioner from the date of the petition. The petitioner-husband is therefore before this Court assailing the said order. 2. The contentions of the petitioner is that the Court below has proceeded on the assumption that the petitioner is getting a salary of Rs.22,000/-. In that regard, the petitioner has relied on the documents at Annexure-E which are the salary certificates of the petitioner for the months of January, February and March 2011 wherein, after deductions the net pay of Rs.12,234 and Rs.13,936/- is indicated. Further, the documents for availing treatment for the mother of the petitioner is also relied upon. In that view, it is contended that when the net pay is not to the extent as indicated by the Court below, the maintenance awarded is on the higher side. 3. The learned counsel for the respondent would however seek to justify the order passed by the Court below. It is his contention that apart from the salary drawn, the petitioner has other income and therefore the interim maintenance awarded by the Court below is justified. It is contended that what has been noticed by the Court below that the petitioner has the income of Rs.22,000/- by way of salary is the correct position and therefore no interference of the order is required. It is also pointed out that one another petition for dissolution of the marriage is filed and both the matters are pending consideration and until then, the amount as ordered by the Family Court be maintained. 4. Having noticed these aspects of the matter, a perusal of the order impugned herein would no doubt indicate that the Court below has taken note of the rival contentions before arriving at a conclusion. However, the concluding portion of the order would disclose that no reference has been made to the documents, but the contentions of the respondent that the petitioner is working as a Mechanic in Diesel Shed at K.R.Puram, Bangalore and he is drawing a salary of Rs.22,000/-has been accepted and the interim maintenance of Rs.5,000/- per month has been ordered. 5. However, the concluding portion of the order would disclose that no reference has been made to the documents, but the contentions of the respondent that the petitioner is working as a Mechanic in Diesel Shed at K.R.Puram, Bangalore and he is drawing a salary of Rs.22,000/-has been accepted and the interim maintenance of Rs.5,000/- per month has been ordered. 5. From the document produced at Annexure-E, it is clear that though the salary of the petitioner is in a sum of Rs.22,445/-, the deductions indicated therein is to the extent of Rs.10,211/-which are all statutory deductions. If that be the position, the net pay being earned by the petitioner is only a sum of Rs.12,234/- from which there is a marginal increment thereafter to the extent of Rs.13,936/-. If this aspect is kept in view and also taking note of the contention of the petitioner that his parents are also residing with him, the needs of the other family members is also to be kept in view. In such situation, the conclusion of the Court below to grant interim maintenance assuming the salary at Rs.22,000/-may not be justified. The question however is with regard to the appropriate interim maintenance to be granted till the disposal of the petition. In any event, the appropriate remedy is to set aside the order and restore the application for reconsideration based on the evidence that would be placed before the Court below. However, taking note of the fact that the main petition itself has progressed sufficiently and since interim order has been issued by this Court as far back as on 09.08.2011 and the said position has been continuing, I am of the opinion that it would be appropriate for this Court itself to determine the appropriate interim maintenance and allow the parties to have their say on the main matter when all the evidence produced would be considered. 6. By the order dated 09.08.2011, this Court had directed the petitioner to pay a sum of Rs.3,000/- per month during the pendency of the petition. As the said order was made about 2 years back and taking note of the escalation in the maintenance cost, I am of the opinion that it would be appropriate to direct the petitioner to continue to pay Rs.4,000/- per month during the pendency of the main matter before the Court below. As the said order was made about 2 years back and taking note of the escalation in the maintenance cost, I am of the opinion that it would be appropriate to direct the petitioner to continue to pay Rs.4,000/- per month during the pendency of the main matter before the Court below. The said amount shall be paid on or before 5th of every month as already directed by this court while granting interim order on 09.08.2011. The Court below while considering the main matter shall take note of the evidence and arrive at appropriate maintenance to be granted. Any of the observations made during the course of this order shall not influence the Court below in arriving at its own conclusion which shall be done purely on the basis of the evidence that would be available before it. 7. In terms of the above, the petition stands disposed of.