CORAM-HON’BLE JUSTICE RAJEEV RANJAN PRASAD
As per the facts of the case petitioner was married to opposite party no.2 on 29/11/2012 and after sometime the behaviour of the husband changed and he started committing atrocities upon petitioner. As her husband was not taking care during pregnancy period she went to her parents house and after the birth of the male child on 09/11/2013 the parents of the petitioner took her to Mumbai to live with her husband were her husband again started to assault her therefore ultimately she was compelled to leave the residence of her husband at Mumbai and in 04/06/2015 she returned to her parents house along with her male child.As the husband of the petitioner has a salary of Rs 70000 from his employment in a public sector and have income from house rent and other properties where total monthly income of Rs 150000.In the above background the petitioner filed an application under section 125 of the CRPC in the learned Family court for maintenance and the opposite party oppose the application seeking maintenance.Where the learned family court framed an issues as whether the petitioner is unable to maintain herself and opposite party who is having sufficient means us neglecting his wife.On perusal of the impunged Judgement it appears both parties have examined witnesses in support of their respective case.The marriage between the parties and birth of the son from the said wedlock are the admitted facts.on point of income the opposite party no.2 produced salary slip which shows that opposite party no.2 getting gross salary of 63,949 out of which sum of Rs 31,346 per month was being deducted against his loan and got only 32,603 as salary in his hand upon consideration of the pleadings and the evidence brought in record the learned court held that the respondent between the parties is admitted and there is an allegations that the petitioner had been ousted from the residential house of the husband without any justifiable cause and behaviour.It has also been taken note of that she is unable to maintain herself and is entitled to get maintenance.The learned Family Court took into account the salary income of the opposite party no 2 in between 60000 and 70000 Were been noticed that opposite party no.2 was Rs 10000 to the petitioner by order of this court in miscellaneous case.The Family Court has granted Rs 10000 per month maintenance i.e Re 5000 to the petitioner and Rs 5000 to her minor son.
Law Involved/Legal Provisions
The revision application has been preferred fir setting aside the order passed by the learned Pricipal Judge,Family Court Vaishali.By the impunged order the learned family court has been pleased to grant maintenance of a sum of Rs 10000 of Rs 10000 in total being Rs 5000 per month for maintenance of the petitioner and Rs 5000 per month for maintenance and education of her minor son.
Whether the order passed by the learned family court is maintainable?
The Court Analysis And Decision
As per the Hon’ble court after hearing both the parties observed and state that this court find that the relationship between the parties is admitted.The opposite party no.2 has not challenged the impugned judgement on any ground.As per the Hon’ble court a husband cannot be allowed to shrik his responsibility of paying maintenance to his wife,minor child,and parents by availing loans and paying EMIs thereon,which would lead to a reduction of his carry home salary.This court has been informed that during the intervention period the Opposite party no.2 has been promoted and he is now Deputy Executive Engineer and his gross salary has been Rs 1,14,564 but in order to deprive his wife from getting an adequate amount of maintenance he has taken further loan and now total sum is Rs 80,405 is being deducted his salary Were opposite party no.2 Paying Rs 43,600 as EMI on account of MSEB Emp CCsoc Mumbai.This court finds from the impugned judgement and the materials on the record that the learned Family court did not have the benefit of the judgement of the Hon’ble apex court.As this court is of the considered opinion that for the reasons stated hereinabove the impugned judgement insofar as it fixes maintenance amount of Rs 10000 only cannot be sustain the test of law.Thus thus court sets aside the impugned order as regards quantum of maintenance and remand this matter to the learned Family Court to take a fresh view of the matter on the quantum.The Learned Principal Judge Family court shall fix the quantam of maintenance afresh upon consideration of the material available on the record after giving an opportunity to both the parties to file their respective affidavits.The entire exercise shall be carried out and Judgement fixing maintenance would be delivered by the learned Principal Judge family court within a period of four months from the date of receipt/production of a copy of this order.In meantime by virtue of the order of the Hon’ble court in the Miscellaneous case the opposite party no2 shall keep paying Rs 10000 per month to the petitioner.This application is allowed.
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Written by- Prachee