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2023 DIGILAW 800 (JHR)

Pratima Devi v. State of Jharkhand

2023-06-21

DEEPAK ROSHAN

body2023
JUDGMENT : DEEPAK ROSHAN, J. 1. Heard learned counsel for the parties. 2. The instant revision application is directed against the order dated 27.03.2018 passed by the learned Principal Judge, Family Court, Ranchi in Original Maintenance Case No. 01 of 2011; whereby the learned family court after considering the arguments and documents produced before him; ordered that the opposite party herein is directed to pay Rs. 5000/- per month to the applicant/petitioner herein from the date of the order. It was further ordered that the monthly maintenance allowances of Rs. 5000/- shall be paid on before 10th of each month of English Calendar. 3. The brief fact of the case is that original maintenance case No. 01 of 2011 was decided ex-parte vide judgment dated 02.03.2012 granting maintenance in favour of the petitioner herein at the rate of Rs. 4000/- per month from the date of filing of the maintenance case i.e. 06.01.2011 with lump sum expenses of proceeding of Rs. 10,000/-. Later, a miscellaneous case was filed by the opposite party-husband and the same was allowed and the ex-parte order passed in Original Maintenance Case No. 01 of 2011 was recalled and thereafter, the learned family court enhance the maintenance amount to Rs. 5000/- but it was ordered to be paid from the date of the order. 4. Mr. Sunil Kumar, learned counsel for the petitioner-wife submits that the learned family court has committed a gross error in passing the impugned judgment on two counts; firstly, the monthly maintenance amount has been enhanced only to Rs. 5000/- which should be at least Rs. 15,000/- per month and secondly the direction is to pay the amount of monthly maintenance from the date of the order which is against the settled principle of law. Learned family court has further erred in appreciating the fact that the property which is owned by the opposite party-husband gives heavy rental income which is almost Rs. 50,00,000/- per month and the amount which has been awarded is a meager amount of Rs. 5000/-. Learned family court should have appreciated the fact that in the present scenario of price escalation Rs. 5000/- is a very meager amount and should be enhanced to at least Rs. 15,000/-. 50,00,000/- per month and the amount which has been awarded is a meager amount of Rs. 5000/-. Learned family court should have appreciated the fact that in the present scenario of price escalation Rs. 5000/- is a very meager amount and should be enhanced to at least Rs. 15,000/-. He lastly submits that the enhanced amount which will be ordered by this Court shall also contain a direction about payment from the date of filing which is of the year 2011. 5. Learned counsel for the opposite party-husband submits that O.P. is a retired defence personal getting pension from the Department which is only Rs. 26,741 plus D.A. and he is maintaining his both sons. As a matter of fact both the sons were residing with the opposite party-husband and for their education and for their proper development the opposite party-husband is facing acute economical scarcity. Learned counsel further submits that the opposite party-husband has also to maintain his ailing parents, as such there is no requirement to enhance the amount from Rs. 5000/- which has been rightly awarded by the learned Family Court. He lastly submits that the learned trial court has not committed any error in awarding the maintenance amount of Rs. 5000/- from the date of the order; as such no interference is required. 6. Having heard learned counsel for the parties and after going to the impugned judgment and records of the case, it appears that the O.P. is a retired defense personal getting pension from the department and in addition to own re-employment he is getting salary from the Indian Railway. It is also an admitted fact that for the last more than 13 years the petitioner wife is residing separately on the ground of desertion and cruelty by the opposite party-husband. It also appears from the evidence of both side that from the year 2010 the petitioner is residing separately and once ex-parte maintenance order was passed in her favour and thereafter, as per the order made in anticipatory bail order Rs. 2,500/- is being paid to her by the opposite party-husband. Learned trial court after appreciating the evidences adduced by both side concluded and pass the following order. Para 16 of the impugned judgment is quoted herein-below: “16. 2,500/- is being paid to her by the opposite party-husband. Learned trial court after appreciating the evidences adduced by both side concluded and pass the following order. Para 16 of the impugned judgment is quoted herein-below: “16. Considering above facts and circumstances, it is clear that according to applicant she was subjected to cruelty and for the event a criminal case was filed but according to O.P. applicant left her matrimonial house of her own. The present case is a summary proceeding in which the court has to inquire neglect and refusal on the part of the O.P. From the evidence of both the parties it is clear that from the year 2010 the applicant Pratima Devi is residing separate and once ex-parte maintenance order was passed in her favour and thereafter as per the order made in anticipatory bail order Rs. 2500/- is being paid to her by O.P. The O.P. himself has stated that he has even filed one case for divorce which is pending. Over all situation is that the applicant is housewife not having any source of income and therefore it is duty of O.P. to maintain her. So far as payment of Rs. 2500/- is concerned as per the anticipatory bail that amount appears not sufficient, considering the present day to day cost of living. Although there is regular expenses on education of two children who are residing with O.P. I am of the considered view that it is proper to grant maintenance allowance in favour of applicant, which is being determined @ Rs. 5000/- per month, considering the facts and circumstances of the case as well as the income of O.P.” 7. It further transpires from the record that the petitioner-wife sought information from the erstwhile department of the opposite party-husband i.e. the Navy Department and she received information indicating therein that the monthly pension of the opposite party-husband is Rs. 26,741/- per month with dearness allowances. It further transpires that the opposite party-husband has also commuted his pension and he received Rs. 5,22,742/- towards commuted pension, Rs. 4,07,217/- as DCRG and Rs. 2,62,930/- towards NGIS. Thus, it transpires that the husband received huge amount at the time of retirement from Indian Navy and as held by the learned Family Court that the petitioner is also working presently in Indian Railway. Thus, it can be interfered that the opposite party-husband is earning about Rs. 4,07,217/- as DCRG and Rs. 2,62,930/- towards NGIS. Thus, it transpires that the husband received huge amount at the time of retirement from Indian Navy and as held by the learned Family Court that the petitioner is also working presently in Indian Railway. Thus, it can be interfered that the opposite party-husband is earning about Rs. 40,000/- as pension apart from the consolidated amount of about Rs. 12,00,000/- which he received at the time of retirement which is evident from Annexure-A to the supplementary affidavit filed by the petitioner. However, this court cannot ignore the fact that both the sons are residing with O.P. No. 2-husband and their education and other requirements are being fulfilled by the husband; but at the same time the maintenance of wife by her spouse cannot be ignored and no husband can take an excuse to the effect that since he is having other liabilities and maintaining the wards; as such, he is not able to maintain her wife properly. Having regards to the aforesaid scenario, there won't be any embellishment in holding that Rs. 5000/- which has been enhanced from Rs. 4000/- by the learned Family Court is very merger amount if we go through the present price index; as such the impugned order requires interference. Hence, it is ordered that the Husband-O.P. No. 2 shall pay the maintenance amount of Rs. 10,000/- per month from the date of this order. In other words, from July 2023; the petitioner is entitled to receive Rs. 10,000/- as monthly maintenance which shall be paid by the O.P. No. 2-Husband by 10th of August 2023. It is further clarified that, the current maintenance of Rs. 10,000/- shall be paid by the Husband to the Petitioner by 10th of every succeeding month. 8. Now coming to the contention of the petitioner that the case is of 2011 and in earlier order, the learned Family Court has ordered to pay the maintenance amount from the date of filing of the application but only after the order passed by the court in anticipatory bail application the opposite party-husband started paying Rs. 2,500/- per month, though the ex-parte order dated 02.03.2012; the petitioner was ordered to pay Rs. 4000/- from the date of filing of the application. In this regard, it is to be seen that what amount should the petitioner get and from which date. 2,500/- per month, though the ex-parte order dated 02.03.2012; the petitioner was ordered to pay Rs. 4000/- from the date of filing of the application. In this regard, it is to be seen that what amount should the petitioner get and from which date. So far as enhanced amount of Rs. 5,000/- per month is concerned, it has been ordered by the learned trial court to pay from the date of the impugned order i.e. 27.03.2018; though in the 1st round of litigation the petitioner was ordered to pay Rs. 4000/- from the date of filing of the application. Having regard to the facts of the case, this court feels that interest of justice would be sufficed by holding that the petitioner is entitled for an amount of Rs. 4000/- per month from the date of filing of the original maintenance case till passing of the impugned order and Rs. 5000/- per month till toady i.e. from the date of this Order. For brevity, a schedule of payment is given herein below which the O.P. No. 2-Husband shall pay to her wife: 1. Rs. 4000/- per month from the date of filing of the original Maintenance Case i.e. from January 2011 as 06.01.11 is the date of filing; till March 2018 as the date of impugned order is 27.03.2018. 2. Rs. 5000/- from April 2018 (date of impugned Order) till June 2023. 3. Rs. 10000/- being the amount of regular/current maintenance, from July 2023, which shall be paid before 10th day of every succeeding calendar month. 9. So far as the arrear amount of maintenance is concerned; as ordered herein above at S. No. 1 and 2, the amount shall be calculated after deducting the amount which the opposite party-husband has already paid to the petitioner by the order of the court passed in anticipatory bail application and any other amount which he has already paid and only the balance amount arrived at shall be paid by the husband to the wife in equal installments, but not beyond a period of eight months; and in case beyond 31st March 2024. So far as current maintenance is concerned; it is once again clarified that the petitioner shall pay Rs. So far as current maintenance is concerned; it is once again clarified that the petitioner shall pay Rs. 10,000/- per month which he will start paying from August 2023 (for the month of July and so on) and the same shall be paid regularly on and before 10th day of every succeeding month. 10. Accordingly, the instant criminal revision application stands allowed and disposed of. 11. Let a copy of this order be communicated to the learned Family Court and to the petitioner through the officer-in-charge of concerned police station. 12. Let the lower court record be sent to the court concerned forthwith.