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Sikkim High Court · body

2014 DIGILAW 75 (SIK)

Moutushi Datta v. Surpratim Datta

2014-09-23

SUNIL KUMAR SINHA

body2014
ORDER 1. Petitioner, wife of the respondent, has been granted Rs. 20,000.00 (Rupees twenty thousand) per month as maintenance for herself and her daughter vide impugned order dated 19-2-2014 passed in Family Court Case No. 46 of 2013, by Family Court, East and North Sikkim at Gangtok. She has filed this petition for enhancement of the said amount. 2. It is undisputed that the petitioner is the legally wedded wife of the respondent, their marriage was solemnized on 3-2-2006, they have a female child aged about 5 years and the child is living with the petitioner. 3. The Family Court has held that the petitioner (wife) and her daughter were entitled to get maintenance u/s. 125 of the Code of Criminal Procedure. So far as quantum is concerned, the Family Court, looking to the monthly income of the respondent, has held that Rs. 20,000.00/- per month would be adequate for the petitioner and her daughter, thus, the said amount has been awarded. 4. The respondent has not filed any Revision against the impugned order passed by the Family Court, however, it was brought to the notice of this Court that a proceeding for divorce u/s. 13 of the Hindu Marriage Act, 1955 is pending before the concerned Court. 5. Ms. (Dr.) Doma T. Bhutia, learned counsel appearing on behalf of the petitioner, has argued that the amount awarded is inadequate; the respondent is working as Associate Professor in Medical College, he has sufficient means to provide adequate amount to the petitioner and her daughter, therefore, the Family Court ought to have awarded an amount of Rs. 50,000.00/- (Rupees fifty thousand) as was claimed by the petitioner. On principles, she cited two decisions of the Supreme Court, namely, Chaturbhuj vs. Sita Bai, (2008) 2 SCC 316 : AIR 2008 SC 530 and Vinny Parmvir Parmar vs. Parmvir Parmar, (2011) 13 SCC 112 : AIR 2011 SC 2748 . 6. On the other hand, Mr. A.K. Upadhyaya, learned Senior Counsel for the respondent, has opposed these arguments and argued that the amount of maintenance granted to the wife and the daughter is on the excessive side. 7. I have heard Counsel for the parties. 8. In Chaturbhuj ( AIR 2008 SC 530 ) (supra), the Supreme Court has held that Section 125, Cr. A.K. Upadhyaya, learned Senior Counsel for the respondent, has opposed these arguments and argued that the amount of maintenance granted to the wife and the daughter is on the excessive side. 7. I have heard Counsel for the parties. 8. In Chaturbhuj ( AIR 2008 SC 530 ) (supra), the Supreme Court has held that Section 125, Cr. P.C. is a measure of social justice specially enacted to protect women and children and falls within constitutional sweep of Article 15 (3) reinforced by Article 39. The object is to prevent vagrancy and destitution. It provides a speedy remedy for supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable o maintain themselves. The Supreme Court further reiterated that the object of maintenance proceeding is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. 9. In Vinny Parmvir Parmar ( AIR 2011 SC 2748 ) (supra), while dealing with a case of permanent alimony under Hindu Marriage Act, 1955, Section 25, it was held by the Supreme Court that as per Section 25, while considering the claim for permanent alimony and maintenance of either spouse, the respondents own income and other property and the income and other property of the applicant are all relevant material in addition to the conduct of the parties and other circumstances of the case. The Court considering such claim, has to consider all the relevant materials and determine the amount which is to be just for living standard. No fixed formula can be laid for fixing the amount of maintenance. It depends on various facts and circumstances of each case. The Court has to see the capacity of the husband to pay, having regard to the personal expenses for his own maintenance and others whom he is obliged to maintain under the law and statute. 10. In the instant case, the respondent is working on the post of Associate Professor in Medical College, Gangtok. His gross salary, as per pay-slip for the month of February, 2013 (Ext. A) was Rs. 86,579.00/- (Rupees eighty six thousand five hundred and seventy nine) and the deductions were Rs. 10. In the instant case, the respondent is working on the post of Associate Professor in Medical College, Gangtok. His gross salary, as per pay-slip for the month of February, 2013 (Ext. A) was Rs. 86,579.00/- (Rupees eighty six thousand five hundred and seventy nine) and the deductions were Rs. 32,994.00/- (Rupees thirty two thousand nine hundred and ninety four). His net pay, thus was Rs. 53,585.00/- (Rupees fifty three thousand five hundred and eight five). This is not disputed by both the parties. The evidence of the respondent would show that his parents are also alive. Though he admitted in the cross-examination that they are doctors by profession, but he clearly deposed that because of their age they are not able to maintain themselves. Thus, the final scenario which comes out from the material on record is that the take home salary of the respondent is Rs. 53,585.00, out of which he is to maintain himself, his two old parents and the petitioner and her daughter. As held in Chaturbhuj (supra) the maintenance awarded in a proceeding u/s. 125, Cr. P.C. cannot be like a punishment, but the object is to prevent vagrancy and destitution and to make a way for food, clothing and shelter to the recipients through a summary proceeding. Thus, the totality of the circumstances have to be considered. Considering the above facts and circumstances of the case, particularly considering that the respondent has parents whom he is also maintaining, and that his take home salary is Rs. 53,585.00/- this Court is of the view that the monthly maintenance of Rs. 20,000.00/- awarded to the petitioner and her daughter cannot be held to be unreasonable or on the lower side, so as to call for interference in this petition. 11. Ms. (Dr.) Doma T. Bhutia has also contended that the amount of maintenance should have been awarded from the date of application. Principally the argument is correct, but no case for interference on this ground is also made out, because, in the instant case, the application for maintenance u/s. 125, Cr. P.C. was filed on 1-4-2013 and the petitioner was awarded Rs. 20,000.00/- as interim maintenance vide an order dated 5-4-2013. Thus, the petitioner was getting Rs. 20,000.00/- per month from the very first month of the filing of her application. P.C. was filed on 1-4-2013 and the petitioner was awarded Rs. 20,000.00/- as interim maintenance vide an order dated 5-4-2013. Thus, the petitioner was getting Rs. 20,000.00/- per month from the very first month of the filing of her application. Therefore, virtually we can take that the amount of maintenance is being paid to the petitioner from date of application itself. 12. For the foregoing reasons, there is no merit in the Revision Petition. The same is liable to be dismissed and is hereby dismissed. 13. No cost. Petition dismissed.