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2018 DIGILAW 1645 (JHR)

Dilip Ram @ Jhanu Kumar v. Jitan Devi

2018-07-26

APARESH KUMAR SINGH, RATNAKER BHENGRA

body2018
JUDGMENT 1. Heard learned counsel for the parties. 2. On consideration of the submission of learned counsel for the parties, delay of 6 days in preferring the instant memo of appeal is condoned. I.A. No. 1596 of 2018 is accordingly disposed of. 3. We have considered the submission of learned counsel for the parties also on merits of the challenge to the order dated 01.08.2017 passed in Original Misc. Case No. 14 of 2013 by the learned Principal Judge, Family Court, Ranchi where under the maintenance amount of Rs. 2500/- per month earlier awarded at the time of divorce between the parties through mutual consent in the year 2010, has been enhanced to Rs. 6000/- per month. 4. As per the undisputed facts on record, marriage between the parties was dissolved by order dated 13.04.2010 under Section 13-B of the Hindu Marriage Act, 1955 in M.T.S. Case No. 103 of 2010 by the learned Family Court with the maintenance amount of Rs. 2500.00 per month to the wife with a liberty to claim enhanced maintenance. At the time of judgment both the sons of the parties were residing with the husband, but since last more than 2 years 9 months, one of the son of the petitioner/ respondent herein out of her marriage with the opposite party/ appellant herein was sent to live with the mother. Appellant Husband is an employee of Government of Bihar posted under the Bihar Military Police. The lady is an illiterate and unskilled woman. Appellant husband did not produce any pay slip during the course of trial but admitted getting salary of Rs. 40,000/- per month. He however took plea that respondent wife was earning Rs. 7000/- per month from business of vegetables. Opposite Party no.3 therein, son of the parties though supported the case of his father but admitted that his father had solemnized second marriage. He lived with his father while the eldest son Vickey Kumar was living with the petitioner mother and was above 18 years of age. 5. Learned Family Court, based on materials on record came to the conclusion that the salary of the opposite party husband was Rs. 27,000/- in the year 2010 and as per his statement made on 20.07.2017, his salary was Rs. 40,000/-, which after deduction of Rs. 12,000/- came to Rs. 28,000/- as take home salary. 5. Learned Family Court, based on materials on record came to the conclusion that the salary of the opposite party husband was Rs. 27,000/- in the year 2010 and as per his statement made on 20.07.2017, his salary was Rs. 40,000/-, which after deduction of Rs. 12,000/- came to Rs. 28,000/- as take home salary. He had solemnized second marriage, which was permissible after his divorce with the petitioner wife and was maintaining his second wife as well as both sons, borne out of the wedlock between petitioner and the opposite party. There were no credible evidence that petitioner was earning Rs. 5000 to 6000/- per month by selling vegetables. This persuaded the Court to enhance the maintenance to Rs. 6000/-. 6. Learned counsel for the appellant argued against the enhancement and submits that the petitioner / respondent herein was also earning Rs. 7000/- per month by selling vegetables. He has also added that appellant has to maintain his second wife and two sons borne out of the wedlock with the petitioner. 7. Learned counsel for the respondent wife has supported the findings of the learned Family Court. 8. We have given anxious consideration to the plea of the parties on the question of enhancement of the maintenance amount. From the material evidence on record, which do not stand refuted either by the appellant or the respondent, it appears that appellant had been drawing salary of Rs. 40,000/-, which after deduction of Rs. 12,000/- came to Rs. 28,000/- per month as take home salary. He has to maintain his second wife, himself and two sons borne out of the wedlock with the respondent. Petitioner / respondent herein has not rebutted that she has no other source of income. 9. In such circumstances, we are of the opinion that interest of justice would be met if the amount of maintenance is enhanced to the tune of Rs. 5000/- per month instead of Rs. 6000/- per month, as awarded by the learned Family Court. Appellant is however required to pay the enhanced amount from the date of judgment passed by the learned Family Court. 10. With the aforesaid modification in the impugned judgment, instant appeal stands partly allowed.