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Mukesh Kumar vs Rekha Rani And Another on 17 April, 2018

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

Criminal Revision No. 4700 of 2017 (OM)
Date of decision: 17.04.2018

Mukesh Kumar
…Petitioner
Versus

Rekha Rani and another
…Respondents

CORAM: HON’BLE MS. JUSTICE JAISHREE THAKUR

Present: Mr. Animesh Sharma, Advocate,
for the petitioner.

Mr. Harkesh Manuja, Advocate,
for the respondents.

****

JAISHREE THAKUR, J.

1. Challenge in the present revision is to the order dated 08.11.2016

passed by learned Sessions Judge, Panipat whereby the revision petition filed

by respondents has been allowed and maintenance of ` 4,000/- per month

awarded to the respondents by the Judicial Magistrate Ist Class, Panipat has

been enhanced to ` 15,000/- per month.

2. In brief, the facts as stated are that the petitioner solemnized a

marriage with respondent No.1 Rekha Rani on 11.02.2010, out of which

wedlock a minor daughter Naina – respondent No.2 was born. The respondent-

wife alleged harassment at the hands of her husband, the petitioner herein, for

not fulfilling a demand to bring a car and on account of this, she was subjected

to cruelty and eventually turned out from her matrimonial home in October,

2011. The petitioner filed a petition under Section 9 of the Hindu Marriage Act

for restitution of Conjugal rights and the respondent wife appeared there and

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made a statement on 11.04.2012 that she was ready and willing to reside with

her husband, however there was no change in his behaviour. She was

eventually thrown out of her matrimonial home at the time when she was three

months’ pregnant. She gave birth to a female child at her parental home. On

account of the fact that she was unable to sustain herself and her minor child,

she filed a petition for grant of maintenance under Section 125 Cr.P.C. The

matter was contested denying all the allegations therein while submitting that

the respondent wife had herself withdrawn from his company without any

reasonable cause. It was stated that the wife was earning about ` 10,000/- per

month while doing tailoring work and taking tuition. The Judicial Magistrate

Ist Class, Panipat on consideration of the evidence adduced held the

complainant wife and the minor child entitled to maintenance @ ` 3,000/- and

` 1,000/- per month, respectively from the date of filing of the petition. Against

the said order of maintenance, the complainant-wife and minor daughter

preferred a revision before the Sessions Judge, Panipat, who enhanced the

maintenance from ` 3,000/- and ` 1,000/-, respectively to ` 12,000/- per month

to be paid to the complainant wife and ` 3,000/- per months to the minor

daughter. This order dated 08.11.2016, was challenged by the husband by

filing a petition before the High Court i.e. CRM-M-3058-2017, which was

dismissed as withdrawn on 10.08.2017 on a statement made by the petitioner

that efforts were being made for an amicable settlement of the entire dispute

between the parties. After the dismissal of the said petition, the instant criminal

revision has been filed with an application for condonation of delay of 310

days in filing the revision petition.

3. Mr. Animesh Sharma, learned advocate appearing on behalf of the

petitioner contends that since there were chances of settlement being

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negotiated between the parties and that is why the petition under Section 482

Cr.P.C. i.e. CRM-M-3058-2017 was dismissed as withdrawn. It is only

thereafter when settlement failed, that the petitioner was constrained to file this

revision petition. It is further contended that the petitioner herein is an

Agriculture Development Officer and his gross earning is ` 49,339/- per

month. The salary slip as annexed with the record as Annexure P-6 would

show that after deducting an installment of ` 9701/- towards housing loan,

income tax of ` 2500/-, contribution towards National Pension Scheme (NPS)

of ` 4715/- and miscellaneous recovery of ` 1,000/-, net salary of the petitioner

is ` 31,363/- out of which he is, in fact, paying ` 12,165/- towards personal

loan, ` 3,656/- for second personal loan for financing brother’s marriage and `

4,200/- towards a car loan from SBI, therefore, after all deductions he is left

only ` 11,342/- per month and, therefore, is not able to pay a sum of ` 15,000/-

per month as maintenance. It is also argued that the payment of the enhanced

maintenance from the date of filing of the petition under Section 125 Cr.P.C. is

also not sustainable. In fact, in case the order of maintenance is silent regarding

payment from the date of the petition, it has to be construed that payment has

to be made from the date of the order.

4. Per contra, Mr. Harkesh Manuja, learned counsel appearing on

behalf of the respondents argues that there is no proper explanation of delay of

310 days in filing the revision petition. In fact, no such effort had been made to

settle the dispute, rather the petitioner filed a petition under Section 13 of the

Hindu Marriage Act for dissolution of marriage before the Sessions Judge,

Panipat. It is also argued that the conduct of the petitioner is such that he would

not be entitled to any relief from this Court on account of the fact that the

petitioner on an earlier occasion had made a statement and given an

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undertaking to deposit all arrears of maintenance but failed to do so and is

continuously avoiding making payment of maintenance. It is also argued that

the payments that have been made towards personal loans taken, cannot be

excluded from his source of income.

5. I have heard learned counsel for the parties and perused the record

of the case.

6. Admittedly, a marriage was solemnized between the parties, out

of which wedlock a minor child was born. There has been a series of litigation

between the parties amongst them being FIR No. 863 dated 17.11.2012

registered under Sections 498-A, 323, 406 and 506 IPC, a petition under

Section 9 of the Hindu Marriage Act as well as a divorce petition under Section

13 of the Hindu Marriage Act. These proceedings arises out of the order passed

in a petition filed under Section 125 Cr.P.C. wherein the amount of

maintenance made payable to the respondents herein has been enhanced from

` 3,000/- to the respondent wife and ` 1,000/- per month of the minor child to

` 12,000/- and ` 3,000/- respectively from the date of the petition.

7. The first question that has to be dealt with is whether the instant

criminal revision would be maintainable in view of the fact that the petitioner

herein had already approached this Court by filing a petition under Section 482

Cr.P.C. i.e. CRM-M-3058-2017, which was dismissed as withdrawn on the

ground that there was a possibility of an amicable settlement between the

parties.

8. An application has been preferred seeking condonation of delay

of 310 days in filing of the present criminal revision and an objection has been

taken that a second revision petition is not maintainable under Section 125

Cr.P.C. The first petition i.e. CRM-M-3058-2017 had been filed invoking the

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inherent powers of the Court under Section 482 Cr.P.C. whereas the instant

revision has been filed under Section 401 Cr.P.C. by the husband against the

order enhancing maintenance which is a statutory right available to him.

Section 401 Cr.P.C. of the Code gives the power of revision to the High Court.

The basic object behind the Code in section 401 is to empower the High

Court to exercise the powers of an Appellate Court to prevent failure of

justice in cases where the Code does not provide for appeal. The power,

however, is to be exercised only in exceptional cases where there has been a

miscarriage of justice owing to a defect in the procedure or a manifest error

on the point of law, excess of jurisdiction, abuse of power. Moreover the

petitioner herein has a right to contest the order of enhancement which was

allowed on an revision filed by the respondent wife. There was no

adjudication of the rights of the petitioner in proceedings that had been

withdrawn. Therefore, the revision petition is maintainable. The argument

raised that the conduct of the petitioner is such that the delay should not be

condoned, cannot be a ground to deny him relief if it can be established that

there was sufficient cause in not filing the revision within time. The delay in

filing the revision has to be explained. It is submitted that the delay was on

account of trying to effect a compromise with the respondent -complainant

which did not fructify. The CRM-M-3058-2017 was filed within time and got

dismissed as withdrawn on 10.08.2017 and thereafter the instant petition has

been filed after compromise talks failed. Therefore, the delay can easily be

condoned since the petitioner was not negligent or tardy in pursuing his case.

9. The second question that requires to be considered is whether the

Sessions Judge has erred in enhancing the maintenance payable from ` 4,000/-

per month to ` 15,000/- per month. The quantum depends upon the status of

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the parties including financial position of the husband and the reasonable

demands of the claimant. Various factors have to be taken into

consideration while determining the quantum of maintenance payable. It is

submitted that the petitioner herein is paying income tax, contribution

towards National Pension Scheme and apart from this, is alsopaying a car loan

and two personal loans and, therefore, after deductions has only an amount of

` 11,342/- in hand which is not sufficient to pay maintenance of ` 15,000/- as

assessed by the Sessions Judge, Panipat. It is argued that only ` 11,342/- in

hand, it is not possible for the petitioner to sustain himself, his brother and his

wife.

10. Section 125 Cr.P.C. stipulates that if any person having sufficient

means neglects or refuses to maintain his wife, his legitimate or illegitimate

minor child, who are otherwise unable to maintain themselves, shall be

obligated to do so. A moral duty and a statutory obligation is cast upon the

husband to maintain his wife, minor children, parents who otherwise are not

capable of maintaining themselves. A person cannot be permitted to wriggle

out of his statutory liability by way of availing huge loans and reducing a

substantial amount of his salary for repayment of the same every month.

Deductions that are made from the gross salary towards long term savings,

which a person would get back at the end of his service and such as deductions

towards Provident Fund, General Group Insurance Scheme, L.I.C. Premium,

State Life Insurance can be deemed to be an asset that he is creating for

himself. In arriving at the income of a party only involuntary deductions like

income tax, provident fund contribution etc. are to be excluded. Therefore,

such deductions cannot be deducted or excluded from his salary while

computing his “means” to pay maintenance. In the case of Dr. Kulbhushan

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Kunwar v. Raj Kumari 1971 AIR (SC) 234 while deciding the question of

quantum of maintenance to be paid, the argument raised that deduction not

only of income-tax but also of house rent, electricity charges, the expenses for

maintaining a car and the contribution out of salary to the provident fund of the

appellant was not allowed. Only deductions towards income-tax and

contributions to provident fund which had to be made compulsorily were

allowed. The relevant portion of Dr. Kulbhushan Kunwar’s case (supra) reads

as under :-

“19. It was further argued before us that the High Court went
wrong in allowing maintenance at 25% of the income of the
appellant as found by the Income Tax Department in assessment
proceedings under the Income Tax Act. It was contended that not
only should a deduction be made of income-tax but also of house
rent, electricity charges, the expenses for maintaining a car and
the contribution out of salary to the provident fund of the
appellant. In our view some of these deductions are not allowed
for the purpose of assessment of “free income” as envisaged by
the Judicial Committee. Income Tax would certainly be
deductible and so would contributions to the provident fund
which have to be made compulsorily. No deduction is permissible
for payment of house rent or electricity charges. The expenses for
maintaining the car for the purpose of appellant’s practice as a
physician would be deductible only so far as allowed by the
income-tax authorities i.e. in case the authorities found that it was
necessary for the appellant to maintain a car.”

In a nutshell, a husband cannot be allowed to shirk 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.

11. In the present case, the carry home salary of the petitioner after

deduction of installment of housing loan, income-tax, National Pension

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Scheme is only ` 31,363/- and rest of the deductions that have been made are

towards personal loans taken. The contention raised that he has the

responsibility of looking after his brother and the wife of his brother, is not

sustainable. Neither brother nor his wife are dependent upon the petitioner

herein, whereas the respondents are. Deduction from the gross pay would only

be those which are statutorily allowed. Any repayment of loans taken for the

marriage of the brother of the petitioner, EMI @ ` 4,200/- towards a car loan

from SBI, or personal loan taken to pay maintenance as alleged, cannot be used

as a legitimate deduction from his net salary.

12. The question of quantum had been decided by the Hon’ble

Supreme Court in Kalyan Dey Chowdhury vs. Rita Dey Chowdhury Nee

Nandy, (2017) 14 Supreme Court Cases 200, wherein it has been held that

25% of the husband’s net salary would be just and proper to be awarded as

maintenance to the respondent-wife. The petitioner herein has a responsibility

towards his wife and the minor child and, therefore, keeping in view the carry

home salary of the petitioner to be ` 31,363/- the maintenance amount payable

to the respondent wife would be ` 7,000/- and ` 4,000/- per month to the minor

daughter .

13. The counsel for the petitioner has submitted that the amount of

maintenance has to be assessed from the date of passing of the order. The

JMIC, Panipat while deciding maintenance, had awarded that the amount

would be paid from the date of the application, and in revision filed by the

wife, the maintenance was enhanced to ` 15,000/- per month, however the

order was silent as on what date the same would be made effective. Whereas

counsel for the respondents submits that the enhancement too would be

from the date of the application and failure to mention would not make it

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payable from the date of the order.

14. Section 125(2) stipulates ‘Such allowance shall be payable from

the date of the order, or, if so ordered, from the date of the application for

maintenance.’

15. The supreme court in the matter of Shail Kumari Devi v.

Krishan Bhagwan Pathak (2008) 9 SCC 632 decided the question

“whether the applicant-wife and her daughter are entitled to maintenance

from the date of the order passed by the Family Court or from the date of

application made by them under Section 125 of the Code” and after much

deliberation held “We, therefore, hold that while deciding an application

under Section 125 of the Code, a Magistrate is required to record reasons

for granting or refusing to grant maintenance to wives, children or parents.

Such maintenance can be awarded from the date of the order, or, if so

ordered, from the date of the application for maintenance, as the case may

be. For awarding maintenance from the date of the application, express

order is necessary. No special reasons, however, are required to be

recorded by the Court. In our Judgment, no such requirement can be read

in sub section (l) of Section 125 of the Code in absence of express provision

to that effect.” Further Hon’ble the Supreme Court in the case referred as

Jaiminiben Hirenbhai Vyas Anr vs Hirenbhai Rameshchandra Vyas

another (2015)2 SCC 385 held :-

“5. Section 125 Cr.P.C., therefore, impliedly requires the
court to consider making the order for maintenance effective
from either of the two dates, having regard to the relevant
facts. For good reason, evident from its order, the court may
choose either date. It is neither appropriate nor desirable that
a court simply states that maintenance should be paid from

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either the date of the order or the date of the application in
matters of maintenance. Thus, as per Section 354(6) CrPC, the
court should record reasons in support of the order passed by
it, in both eventualities. The purpose of the provision is to
prevent vagrancy and destitution in society and the court must
apply its mind to the options having regard to the facts of the
particular case.

6. In Shail Kumari Devi v. Krishan Bhagwan Pathak
(2008) 9 SCC 632, paras 39-41 this Court dealt with the
question as to from which date a Magistrate may order
payment of maintenance to wife, children or parents. In Shail
Kumari Devi this Court considered a catena of decisions by
the various High Courts, before arriving at the conclusion that
it was incorrect to hold that, as a normal rule, the Magistrate
should grant maintenance only from the date of the order and
not from the date of the application for maintenance. It is,
therefore, open to the Magistrate to award maintenance from
the date of application. The Court held, and we agree, that if
the Magistrate intends to pass such an order, he is required to
record reasons in support of such order. Thus, such
maintenance can be awarded from the date of the order, or, if
so ordered, from the date of the application for maintenance,
as the case may be. For awarding maintenance from the date
of the application, express order is necessary.” (emphasis
supplied)

16. There is no such express order passed by the Session Judge,

Panipat in respect to allowing maintenance from the date of the petition.

Argument raised by counsel that the order so passed is in continuation to the

order of the JMIC, can not be sustained in view of the fact that judgment

rendered in Jaiminiben Hirenbhai Vyas Anr (Supra) relying on Shail

Kumari Devi v. Krishan Bhagwan Pathak (2008) 9 SCC 632, specifically

hold that failure to specify the date from when payment will become due

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would necessarily mean that it would be from the date of the order.

17. Resultantly, the maintenance amount of ` 15,000/- per month to

the respondent wife and the minor daughter being excessive is reduced to

` 11,000/- per month and the impugned order is modified and this revision is

partly allowed. The maintenance of ` 11,000/- per month is payable to the

respondents on or before 10th of every succeeding English calender month and

that too from the date of the order as passed by the Addl. Sessions Judge,

Panipat.

18. Petition stands allowed accordingly.

17.04.2018 (JAISHREE THAKUR)
Satyawan JUDGE

Whether speaking/reasoned Yes.
Whether reportable No.

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