Old Parents – Maintenance reduced

HIGH COURT OF JUDICATURE OF ALLAHABAD

(Judgment reserved on 26.07.2007)

(Judgment delivered on 09.08.2007)

Civil Misc. Writ Petition No.50478 of 2004

Prasad Kumar Chatterji Vs. Judge Family Court, Allahabad and another

Hon’ble S.U. Khan, J.

This writ petition has been filed by Husband against wife-respondent No.2-Smt. Sona Chatterji and is directed against order dated 20.10.2004 passed by Family Court, Allahabad in matrimonial case No.253 of 2001, Prasad Kumar Chatterji Vs. Sona Chatterji. The said order has been passed under Section-24, Hindu Marriage Act. Through the said order, petitioner-husband was directed to pay Rs.2,000/- as litigation charges to wife-respondent No.2 and monthly maintenance of Rs.1500/- per month. The Marriage Petition (Marriage Petition No.253 of 2001)before the Family Court has been filed under Section 9, Hindu Marriage Act for restitution of conjugal rights. Marriage took place in the Year 1994 and two sons were born out of marriage wedlock in the Year 1997, who were twins. Through the impugned order, petitioner has been directed to pay maintenance of Rs.1500/- per month. Learned counsel for the petitioner-husband has stated that at present carry home salary of the petitioner, who is working as cashier in Bata Company, is about 3500/- per month.

It appears that proceedings under Section 125, Cr.P.C. are also pending before the Family Court, Allahabad in the form of case No.194 of 2000 and in the said case, an order for payment of maintenance of Rs.1200/- per month for both the children (Rs.600/- per month per child) has been passed. The contention of learned counsel for the petitioner is that by virtue of orders passed in both the cases, he is required to pay Rs.2700/- per month. In this writ petition an interim order was passed on 30.11.2004 staying operation of the impugned order provided the petitioner deposited Rs.2,000/- towards cost of litigation and Rs.1000/- per month towards maintenance and continued to deposit maintenance amount till final disposal of the suit. After filing of the writ petition, petitioner filed an application for withdrawal of his case (Marriage Petition No.253 of 2001). The Family Court in that regard passed an order on 19.12.2006, copy of which is Annexure-2 to the Rejoinder Affidavit. From the perusal of the said order, it appears that there was some confusion regarding interpretation of interim order passed in this writ petition. In this writ petition, the two minor children were not impleaded as parties. Accordingly, it was argued before the Family Court that the interim order passed in this writ petition for payment of Rs.1000/- per month as interim maintenance was confined only to the maintenance payable to the wife and and not to the children, as children were not impleaded as respondents.

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In my opinion, interpretation was quite erroneous. Under order challenged in this writ petition, total interim maintenance of Rs.1500/- had been directed to be paid and it had further been clarified that the said amount was payable for all the three persons, i.e. wife and both the children @ Rs.500/- each. As the maintenance to the wife had been awarded @ Rs.500/- per month, hence there was no sense in staying operation of the said order and enhancing the amount from Rs.500/- month to Rs.1000/- per month. On the withdrawal application, Family Court, through its order dated 19.12.2006, held that withdrawal application could be allowed only if in pursuance of interim order passed by the High Court, entire amount was paid.

Even the court below found that the carry home salary of the petitioner was Rs.3500/- per month. Petitioner has got old parents also. In view of this, impugned order is modified and it is directed that petitioner should pay interim maintenance to the wife and the children @ Rs.600/- per month. (This amount when added to the amount of maintenance awarded to both the children @ Rs.1200/- in the case under Section 125, Cr.P.C. will come to Rs.1800/- per month.

An application for impleadment of the children has been filed, however there is no need to pass any order on the impleadment application, as the interest of children has been taken care of in the order.

Writ petition is accordingly disposed of.

Date:09.08.2007

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