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2022 DIGILAW 330 (UTT)

Haresh Ram v. Sheela Devi

2022-09-30

RAVINDRA MAITHANI

body2022
JUDGMENT : Ravindra Maithani, J. Instant revision is preferred against the judgement and order dated 26.04.2019, passed in Misc. Criminal Case No. 262 of 2017, Smt. Sheela Devi and others Vs. Haresh Ram, by the Judge, Family Court, Nainital (“the case”). By it, an application filed under Section 125 of the Code of Criminal Procedure, 1973 (“the Code”) by the respondent no.1, the wife, seeking maintenance for herself and her two minor children, namely, Ms. Lakshita, respondent no.2 and Master Yashdeep, respondent no.3. has been allowed. The revisionist has been directed to pay Rs.15,000/- per month to the respondent no. 1, Rs.10,000/- per month to the respondent no.2 and Rs.5,000/- to respondent no.3 as maintenance. 2. Facts necessary to appreciate the controversy, briefly stated, are in a very short compass. The revisionist and respondent no.1 married on 28.11.2004. They stayed together for a long. But, when the dispute arose, they started living separate. Two minor children, respondent nos. 2 and 3 are staying with the mother, the respondent no.1. The respondent no.1 filed an application under Section 125 of the Code seeking maintenance on the ground that she has to maintain her two minor children, whereas, the revisionist is a man of means, who is employed as Teacher in the Educations Department, therefore the maintenance @ Rs.3000/- per month be paid to them. 3. This application under Section 125 of the Code was objected to by the revisionist on the ground that after the death of his father, he has responsibility of maintaining his mother, sister and brother. According to the revisionist, the respondent no.1 has been staying separate without any reason. According to the revisionist, the respondent no.1 also works in a school. She is a qualified teacher. 4. In evidence, both the revisionist and the respondent no1 were examined and certain documents were also produced. By the impugned order, the revisionist has been directed to pay maintenance, which is impugned. 5. Heard learned counsel for the parties and perused the record. 6. Learned counsel for the revisionist would submit that the amount of maintenance, as granted is on higher side. He would submit that the revisionist has responsibility to maintain his widowed mother and two brothers, who are younger to him and are preparing for the competitive examination. He married his sister in the year 2018 for which, he had taken loan. Learned counsel for the revisionist would submit that the amount of maintenance, as granted is on higher side. He would submit that the revisionist has responsibility to maintain his widowed mother and two brothers, who are younger to him and are preparing for the competitive examination. He married his sister in the year 2018 for which, he had taken loan. The revisionist had also constructed a house at Chorpani, after taking a loan. It is submitted that the respondent no.1 is staying in the house with their children. 7. Learned counsel also placed reliance on the principles of law, as laid down in the case of Dr. Kulbhushan Kumar Vs. Smt. Raj Kumar and another, (1970) 3 SCC 129 , in that case, in paras 21 and 22, the Hon’ble Supreme Court observed as hereunder:- “21. A sum of Rs.250 per month for the maintenance of the wife of a person occupying the position of the appellant cannot be said to err on the liberal side. The High Court, in our opinion, very rightly fixed that sum making it subject to the limit of 25 per cent of the income as found by the Income Tax authorities. We have no reason to take any different view. Subject to our observation as to the determination of the income of the appellant, the appeal against the wife is dismissed with costs.” “22. As regards the appeal in the case of the daughter, the High Court fixed the amount of monthly maintenance at Rs.150 till such time as she marries but so as not to exceed 15 per cent on the average monthly income of the father. No ground was shown as to why we should make a variation in the amount fixed in her case. We uphold the finding of the High Court in this respect. There will be one set of hearing fee.” 8. Reference has also been made to the judgment in the case of Kalyan Dey Chowdhury Vs. Rita Dev Chowdhury Nee Nandy, (2017) 14 SCC 200 , in which reference has been made to the judgment passed in the case of Dr. Kulbhushan Kumar (supra). 9. On the other hand learned counsel for the respondents would submit that the revision deserves to be dismissed at the outset. Rita Dev Chowdhury Nee Nandy, (2017) 14 SCC 200 , in which reference has been made to the judgment passed in the case of Dr. Kulbhushan Kumar (supra). 9. On the other hand learned counsel for the respondents would submit that the revision deserves to be dismissed at the outset. He would submit that the revision has been filed on two grounds that the revisionist has taken a loan for constructing a house from the Branch of the bank. It is argued that there is no such Branch of the bank at a place as alleged by the revisionist. It is also submitted that according to the revisionist, he had also purchased a car. It is argued that the car is for the use of the revisionist and not for the respondents. Therefore, it may not have any effect while considering the grant of maintenance. 10. While considering an application under Section 125 of the Code various factors are to be kept in mind. They are financial resources, liabilities, social status etc. There cannot be any mathematical formula that may help application in each and every case in such matters. Each case must be dealt with on its own facts. 11. Of course, in the case of Dr. Kulbhushan Kumar (supra), the Hon’ble Supreme Court approved the limit of 25% of the income of the husband as maintenance. In the same judgment, in para 22, the Court also upheld that a monthly maintenance not exceeding 15% of the income of the father be given to the daughter till such time as she marries. 12. The Court may in all such cases have to take into consideration all the factors. The Court always attempts to reach to the closest of the actual maintenance needed for the claimant. It has some assessments. Both the revisionist and the respondent no.1, in the evidence supported their respective claims. It is admitted that revisionist constructed a house at Chorpani, where now the respondent no.1 is staying with their children. There is no dispute that the mother of the revisionist is staying with him. In his cross examination Page 2 second last paragraph, the revisionist has admitted that his one brother Dinesh is on a private job in Delhi. He cannot be said to be a dependent on the revisionist. There is no dispute that the mother of the revisionist is staying with him. In his cross examination Page 2 second last paragraph, the revisionist has admitted that his one brother Dinesh is on a private job in Delhi. He cannot be said to be a dependent on the revisionist. Another brother Rajiv, according to the revisionist is teaching in a private school, but he is not getting any honorarium. It is also a fact as admitted by the respondent no.1 that the house which the revisionist had constructed is very close to her father’s house. 13. Learned counsel for the parties would submit that at the relevant time, when the impugned order was passed, the respondent no. 2 was about 14 years of age and the respondent no.3 was about 10 years of age. Both were studying. 14. The salary of the revisionist is admitted to be Rs.62,000/- at the relevant time. In the instant case the fact that the private respondents are staying in the house constructed by the revisionist is also much significant in arriving at a just amount of maintenance. It is also a fact that the house is constructed away from the family house of the revisionist and it is close to the father’s house of the respondent no.1. The respondent no.1, the wife, was awarded Rs.15,000/- per month, as maintenance. Keeping in view the liability, financial responsibilities, status and other attending circumstances, this Court is of the view that the amount of maintenance, as awarded needs modification as follows:- (i) The wife shall get maintenance @ Rs.14,000/- per month. (ii) The respondent no.2 shall get Rs.6000/- per month (iii) The respondent no.3 shall get Rs.5000/- per month. (iv) Total Rs.25,000/- per month maintenance is awarded to the private respondents. 15. The revision is partly allowed accordingly. 16. The impugned judgment and order is modified to the extent, as indicated above.