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2014 DIGILAW 3545 (MAD)

R. Rajavelu v. Sivakami

2014-09-22

S.VIMALA

body2014
Judgment : 1. The Petitioner/Husband filed H.M.O.P.No.2 of 2012, seeking dissolution of marriage between the petitioner/husband and the first respondent/wife on the ground of cruelty and desertion and also seeking custody of all children. 2. Interim application in I.A.No.72 of 2012 was filed by the wife seeking maintenance @ Rs.6,000/- in respect of the respondents 1, 3 and 4 and a sum of Rs.10,000/- towards the second petitioner totalling a sum of Rs.28,000/- apart from Rs.15,000/-towards costs on litigation. This application was allowed partly directing the petitioner to pay a sum of Rs.10,000/- per month from the date of petition and a sum of Rs.15,000/-was ordered towards costs on litigation. Challenging the quantum as excessive, the husband has filed the Civil Revision Petition in C.R.P.(NPD)No.2806 of 2013. 3. The wife filed E.P.No.210 of 2013, seeking enforcement of the order of maintenance. The Court by an order dated 09.10.2013 ordered attachment of the salary. Challenging the same, the husband has filed C.R.P.(NPD)No.4592 of 2013. 4. The learned counsel for the revision petitioner has submitted that the take home salary of the husband is only a sum of Rs.16,000/- and therefore, the order of maintenance at Rs.10,000/-has to be reduced to Rs.5,000/-. 5. On the other hand, the learned counsel representing the wife has submitted that it is not the net salary but the gross salary that should be taken into account and if that amount is taken into account, then the award of quantum of maintenance must be much more. 6. Additional Typed set of papers has been filed by the learned counsel representing the husband wherein the gross salary payable as on 01.02.2012 is shown as Rs.60,674.54/- and the net salary is shown as Rs.32,370/- and the total deductions comes to Rs.28,298.25/-It is pointed out by the learned counsel for the petitioner/husband that the salary includes the common allowance payable to the husband which was Rs.7580/-in the month of February 2012 and the same varies by month to month. 7. It is pointed out that the basis pay was Rs.18,950/-and after the pay commission revision, the basic pay payable is Rs.19,520/-. 8. What should be the basic factor to decide the quantum maintenance, i.e. Whether the gross salary or the net salary? 9. A perusal of the deductions in the salary would go to show that there are compulsory as well as optional deductions. 8. What should be the basic factor to decide the quantum maintenance, i.e. Whether the gross salary or the net salary? 9. A perusal of the deductions in the salary would go to show that there are compulsory as well as optional deductions. Deductions such as PF Subscription, TDS Income Tax etc., cannot be avoided and they are the deductions not to dependant upon under the wish of the husband and the deductions such as L.I.C., Premium, Multi Loan Recovery, Thrift Loan recovery etc., which are occasioned on account of the expenses already incurred by the husband. Therefore, these deductions which are optional cannot be discounted from gross salary. 10. In so far as the liability of the husband is concerned, it is contended that the husband has to look after his mother and his physically handicapped brother and his family also. 11. The eldest son, who is physically challenged, is aged about 17, but, always in the lap of the mother. The son seems to have no independent existence and dependant upon the mother for everything. Therefore, the issue to be considered is out of two, whom is entitled to preferential maintenance is the legal issue involved. In the presence of the Dependant son, the married brother having children, though being physically challenged cannot have the right to maintenance from the brother. 12. This Court ordered presence of the parties to try for an amicable settlement and the settlement does not appear to be possible at this juncture and the same may be possible in future, provided, there is an exchange of mind between the couples. 13. It is pointed out that one of his sons who was residing with his mother has gone to the custody of this father. It is a settled position of law that even though the children are under the custody of mother, it is for the husband to offer maintenance to them. The petitioner's son who is a physically handicapped child who is at the age of 17 is now not in a possession to walk and even to crawl and do any work and he is being attended to by the mother even in respect of “natural call” of the son. 14. The petitioner's son who is a physically handicapped child who is at the age of 17 is now not in a possession to walk and even to crawl and do any work and he is being attended to by the mother even in respect of “natural call” of the son. 14. However the learned counsel for the petitioner pointed out that the wife is occupying the quarters which has been allotted to the husband and the husband is also paying the tuition fees directly to school. Even then considering the ailment of his eldest son, the amount of Rs.10,000/-cannot be said to be excessive. Amount of Rs.10,000/- may not sufficient considering the maintenance of the physically challenged child. 15. When the wife holds the custody of the physically handicapped son, it is the duty of the husband to ensure that the order for payment of maintenance is complied with. She ought not to have been driven to the Executing Court with an Execution Petition, seeking attachment of the salary. The Execution Petition and the order for attachment of salary cannot be said to be illegal. 16. The arrears of maintenance at Rs.10,000/- per month as ordered by the Court below has to be paid in three instalments within a period of four months. Till such time, the Execution Petition shall be kept in abeyance by the Court below and subject to compliance or otherwise, the Court may pass further orders. 17. Subject to the directions, these Civil Revisions stands dismissed. No costs.