Calculation of maintenance does not include house rent: High Court of Delhi

When the court decides the quantum of maintenance to be given by the husband to the wife, it shall not take into consideration deduction such as repayment of loan, rent etc. and shall only calculate deductions from tax or EPF. This was decided in the case of Nitin Sharma Vs. Sunita Sharma & Ors. [C RL.REV.P. 322/2020 & Crl.M.A. 13958/2020 and CRL.REV.P. 374/2020] by Hon’ble Justice Suresh Kumar Kait.

The subject matter of in these petitions is essentially a matrimonial dispute The marriage between the parties was solemnized as per Hindu rites and out this wedlock, two twin boys were born. Due to certain differences, parties started living separately and the two sons are in the custody of wife. The wife claimed she is helpless and unemployed and is totally dependent upon husband for her survival and that for their sons. Dissatisfied with the amount of interim maintenance awarded by the learned Family Court, the wife preferred an application seeking enhancement of interim maintenance and the said application was allowed. The petitioner/husband is seeking quashing of order vide which amount of interim maintenance has been enhanced to Rs.22, 000.

According to husband, the trial court has failed to appreciate that he had been regularly paying ad interim maintenance @Rs.10,000/- per month to his wife, though he himself has been earning Rs.39,560/- per month.. Also, he said that the trial court has also not taken into consideration the amount of rent paid by him. It is stated that in the affidavit of income filed by his wife, she has not shown her expenditures.

The stand of wife is that the amount of interim maintenance fixed after it was taken into consideration that husband’s mother was dependent on him. It was further stated that mother of husband is in a good health condition and even otherwise, she is entitled to free medical facilities from Central Railways Hospital. Also, while passing the order the trial court has divided the income of husband into six shares, whereas it should have been actually divided into five shares.

The court said that the trial court has rightly held husband responsible for maintaining his wife and children. The Supreme Court in Sunita Kachwaha Vs. Anil Kachwaha (2014) 16 SCC 715 has held “merely because wife was earning something, would not be a ground to reject her claim for maintenance particularly when proof of her earnings were not placed on record before the courts below.”

The court observed that while calculating the quantum of maintenance, the income has to be ascertained keeping in mind that the deductions only towards income tax and compulsory contributions like GPF, EPF etc. are permitted and no deductions towards house rent, electric charges, repayment of loan, LIC payments etc. are permitted. For this the court relied upon the Supreme Court case of Jasbir Kaur Sehgal Vs. Distt. Judge, Dehradun & Ors [(1997) 7 SCC 7] where it was observed “No set formula can be laid for fixing the amount of maintenance. It has, in the very nature of things, to depend on the facts and circumstances of each case. Some scope for leverage can, however, be always there. The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions”. The case was thus decided in the favour of the wife increasing the amount of maintenance by Rs.4000.

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