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Madhya Pradesh High Court · body

2018 DIGILAW 84 (MP)

MEETA SHAIN v. K. P. SHAIN

2018-01-18

G.S.AHLUWALIA

body2018
JUDGMENT : 1. This Criminal Revision under section 19(4) of the Family Courts Act, 1984 read with sections 397, 401 of Criminal Procedure Code has been filed against the order dated 20-4-2015 passed by the Principal Judge, Family Court, Gwalior in M.Cr.C. No. 294/2014 by which the application filed by the applicant under section 125 of Criminal Procedure Code has been allowed and the respondent has been directed to pay Rs. 3,000/- to the applicant and Rs. 2,000/- to the child. The present revision has been filed by the applicant for enhancement of maintenance amount. 2. The necessary facts for disposal of the present revision in short are that the applicant filed an application under section 125 of Criminal Procedure Code against the respondent on the ground that she got married to the respondent on 7-2-2004 at Kidnnur, District Kottyam, Kerala as per Hindu rites and rituals. Gold and silver ornaments, household articles, clothes, Rs. 1,00,000/- in cash etc. was given at the time of marriage. In spite of the harassment and ill-treatment by the respondent, the applicant continued to perform her marital liabilities and gave birth to a baby girl on 21-8-2008. It was also alleged that the applicant has resided with the respondent for about 10 years after her marriage. The respondent used to beat her and she was not provided treatment in case of medical emergency and even food was also not provided to her on several occasions. In the month of November, 2013, the applicant was badly beaten by the respondent and she was turned out of her matrimonial house. The applicant informed her father on telephone about the conduct of the respondent, as a result of which, her father visited her matrimonial house and tried to convince the respondent, who assured that he will not ill-treat her in future and relying on the promises made by the respondent, father of the applicant left the applicant and her child with the respondent. However, the behaviour of the respondent did not improve and he continued to harass the applicant physically as well as mentally. The applicant again informed her father about the conduct of the respondent. However, the behaviour of the respondent did not improve and he continued to harass the applicant physically as well as mentally. The applicant again informed her father about the conduct of the respondent. On 26-4-2014 her father again came to the matrimonial house of the applicant and tried to pursue the respondent, but in his turn the respondent started abusing her father and turned the applicant and her daughter out of the house, as a result of which, the applicant after making a complaint to the police station, came to Gwalior on 28-4-2014 along with her daughter and from thereafter she is residing in her parents home. After turning out the applicant from her matrimonial house, the respondent did not take care of the applicant or her daughter and did not make any arrangement for the maintenance of the applicant. The applicant is residing in her parents home from 29-4-2014 and she has no source of income and with great difficulties she is maintaining herself, as the father of the applicant has already retired from service. The respondent is working on the post of Senior Staff Assistant in Bhilai Steel Plant, Bhilai and his monthly gross income is around Rs. 35,000/-. The applicant is completely dependent on the respondent and is entitled to get Rs. 20,000/- per month towards the maintenance and treatment of herself and her daughter. The respondent has deserted the applicant without any reasonable reason. 3. The respondent filed his reply and denied the allegations. He further submitted that he never ill-treated the applicant. He admitted that he is working on the post of Senior Staff Assistant in Bhilai Steel Plant, Bhilai and submitted that free medical facility is extended by the employer and, therefore, the allegation of not providing any expenses for medical treatment is false. In fact it is the applicant whose behaviour towards the respondent is not good. The father of the applicant used to threaten the respondent, as a result of which, he lodged a complaint on 13-11-2013 in Police Station Kotwali, Sector 6, Bhilai. It was further alleged that the police had also advised the applicant to live peacefully with the respondent, but in spite of that she did not improve her conduct and ultimately she along with her daughter, without the permission of the respondent, collected her ornaments and belongings and went back to Gwalior. It was further alleged that the police had also advised the applicant to live peacefully with the respondent, but in spite of that she did not improve her conduct and ultimately she along with her daughter, without the permission of the respondent, collected her ornaments and belongings and went back to Gwalior. The respondent further admitted that his gross income is Rs. 32,674/- and it was alleged that his net take home salary is Rs. 14,158/-. The applicant had also taken a house loan, as a result of which, he is paying an additional installment of Rs. 5,292/- per month and his total saving is only Rs. 9,000/-. It was further mentioned in the reply that without raising any dispute, the respondent is ready to pay Rs. 3,000/- per month by way of maintenance to the applicant and his daughter. Thus, it is clear that the factum of marriage and the paternity of the daughter has not been denied by the respondent. 4. In the trial, the applicant examined herself as PW-1 and her father Mohanlal Agrawal as PW-2. However, it appears that the respondent was proceeded ex parte on 22-9-2014 and the applicant was examined on 27-11-2014 and her father Mohanlal Agrawal was examined on 13-4-2015 and since the respondent was proceeded ex parte, therefore, the applicant or her witness was not cross-examined at all. It is also clear that the respondent also did not file any application for setting aside the ex parte proceedings and he even did not examine himself and his witnesses and ultimately the trial court passed an ex parte order on 20-4-2015 directing the respondent to pay Rs. 3,000/- and Rs. 2,000/- per month to the applicant and her child. 5. Challenging the quantum of the maintenance amount, it is submitted by the counsel for the applicant that the maintenance amount awarded is on a lesser side. 6. Per contra, it is submitted by the counsel for the respondent that the maintenance amount awarded by the trial court is adequate. 7. Heard learned counsel for the parties. 8. The respondent has not challenged the order dated 20-4-2015, therefore, the entitlement of the applicant to receive the maintenance amount at the rate of Rs. 3,000/- for herself and at the rate of Rs. 2,000/- for her child has not been challenged. 7. Heard learned counsel for the parties. 8. The respondent has not challenged the order dated 20-4-2015, therefore, the entitlement of the applicant to receive the maintenance amount at the rate of Rs. 3,000/- for herself and at the rate of Rs. 2,000/- for her child has not been challenged. Since the applicant and her witness was not cross-examined by the respondent and he himself did not appear as a witness and has not challenged the findings of entitlement to receive the maintenance amount, this Court is of the view that no fault can be found in the findings given by the trial court with regard to the entitlement of the applicant to receive the maintenance amount. 9. The next question for determination is the quantum of maintenance. It is well established principle of law that while deciding the quantum of maintenance, the status of the parties also plays an important role because the wife and the children are entitled to enjoy the same status, which they would have otherwise enjoyed in the company of husband/father. 10. In the present case, during pendency of the trial the respondent had sent a copy of his salary slip by registered post to the trial court. This salary slip is of the month of June, 2014, according to which, the basic pay of the respondent was Rs. 16,876/- and he was getting Rs. 14,918/- and, therefore, his gross salary was Rs. 31,794/-. It is well established principle of law that while calculating deductions from the salary only the deductions which are compulsory under any statute can be taken note of and any voluntary deduction by an employee cannot be taken note of, because in order to show less take home salary, the respondent can either enhance his contributions or deposits under different heads voluntarily without any compulsion under the law or he may take advances/loans and may claim installments towards the deductions. Thus, any voluntarily deduction cannot be considered. 11. If the salary slip of the respondent is considered, then it is clear that he was depositing Rs. 8,025/- with the cooperative, whereas he was repaying the installment of Rs. 2,777/- under the CPF loan. The respondent had taken a festival advance and Rs. 500/- was being deducted towards repayment of loan. Thus, it is clear that the deduction of Rs. 8,025/- under the cooperative bank as contribution, Rs. 8,025/- with the cooperative, whereas he was repaying the installment of Rs. 2,777/- under the CPF loan. The respondent had taken a festival advance and Rs. 500/- was being deducted towards repayment of loan. Thus, it is clear that the deduction of Rs. 8,025/- under the cooperative bank as contribution, Rs. 2,777/- towards repayment of CPF loan and Rs. 500/- towards repayment of festival advance cannot be taken into consideration in order to assess the take home salary of the respondent. According to the salary slip, the monthly gross pay of the respondent was Rs. 32,674/- and after total deductions of Rs. 18,516/-, the take home salary of the respondent was Rs. 14,158/-. If an amount of Rs. 8,025 + 2,777 + 500/-, i.e. Rs. 11,302/-, is excluded from the deductions, then his take home salary would come to Rs. 25,460/-. It was further mentioned in the reply that the respondent has taken a house loan. Loan is nothing but receipt of salary in advance and taking of house loan cannot be said to be a statutory compulsion. If the respondent had voluntarily taken a house loan knowing fully well that he will be required to repay the installments, then the same cannot be taken into consideration while assessing the take home salary. Thus, this Court is of the view that the net take home salary of the respondent is Rs. 25,460/-. 12. At this stage, it is submitted by the counsel for the respondent that certain proceedings are pending before the Supreme Court and the applicant has admitted in those proceedings that she is working as Assistant Teacher somewhere in Chennai and, therefore, he prays for some time to place the same on record. 13. The prayer for adjournment was vehemently opposed by the counsel for the applicant. It was submitted by him that the present case is a revision arising out of the order passed by the court below and the court below has specifically come to a conclusion that the applicant has no independent source of income. The applicant was given full opportunity by the trial court, but he neither engaged any lawyer nor appeared before the trial court and even the reply was sent by the registered post. He did not cross-examine the applicant and did not examine either himself or any of his witnesses. The applicant was given full opportunity by the trial court, but he neither engaged any lawyer nor appeared before the trial court and even the reply was sent by the registered post. He did not cross-examine the applicant and did not examine either himself or any of his witnesses. Even in the present case, the respondent has filed his Vakalatnama on 4-9-2015 and more than two and half years have passed, but neither he has chosen to file any reply nor he has filed any document. Even the cause-list of the hearing party cases was uploaded by the High Court well in advance, but still no step has been taken by the respondent to place any document on record, on which he wants to rely. Furthermore, it is submitted by the counsel for the applicant that if the respondent is of the view that certain events have taken place subsequent to passing of the order by the trial court, then the only remedy available to him is to file an application under section 127 of Criminal Procedure Code. It was further submitted that in the Supreme Court the respondent did not appear for reconciliation proceedings, which clearly shows that he is not interested in reconciliation and is only interested in delaying the proceedings. 14. Undisputedly, the respondent is working as a Senior Staff Assistant in Bhilai Steel Plant, Bhilai. There is nothing on record to suggest that the applicant has any independent source of income. The take home salary of the respondent is Rs. 25,460/-. Considering the status of the parties, price index, inflation rate, prices of the articles of daily need coupled with the fact that the expenses on the baby child must be increasing day by day to cater the need of her higher studies, this Court is of the view that the compensation of Rs. 3,000/- and Rs. 2,000/- to the applicant and to the child needs to be enhanced. 15. Accordingly, the order dated 20-4-2015 passed by the Principal Judge, Family Court, Gwalior in M.Cr.C. No. 294/2014 is affirmed subject to the modification that in place of Rs. 3,000/- per month, as awarded by the trial court, to the applicant and in place of Rs. 2,000/- per month granted to the daughter, the respondent shall pay Rs. 4,000/- per month to the applicant and Rs. 3,000/- per month to her daughter by way of maintenance. 3,000/- per month, as awarded by the trial court, to the applicant and in place of Rs. 2,000/- per month granted to the daughter, the respondent shall pay Rs. 4,000/- per month to the applicant and Rs. 3,000/- per month to her daughter by way of maintenance. The enhanced amount shall be payable from 20-4-2015, i.e. the date on which the order was passed by the Principal Judge, Family Court, Gwalior. 16. The order dated 20-4-2015 passed by the Principal Judge, Family Court, Gwalior in M.Cr.C. No. 294/2014 is hereby modified to the extent mentioned above. 17. Accordingly, the application succeeds and is hereby allowed.