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Judgments of Supreme Court of India and High Courts

Seema And Anr vs Gourav Juneja on 3 October, 2018

CRR(F)-205-2015 -1-
CRR(F)-276-2015

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH

(1)
CRR(F) No.205 of 2015 (OM)
Date of Decision: October 3, 2018

Seema and another

…Petitioners

Versus

Gourav Juneja
…Respondent

(2)
CRR(F) No.276 of 2015 (OM)

Gourav Juneja

…Petitioner

Versus

Seema and another
…Respondents

CORAM:- HON’BLE MS. JUSTICE JAISHREE THAKUR

Present:- Mr. Akshay Jindal, Advocate
for the petitioners in CRR(F)-205-2015 and
for the respondents in CRR(F)-276-2015.

Mr. N.S. Shekhawat, Advocate
for the respondent in CRR(F)-205-2015 and
for the petitioner in CRR(F)-276-2015.

********

JAISHREE THAKUR, J.

1. By this common order, this court shall decide above captioned

two criminal revisions, which have been filed seeking to challenge the

judgment dated 13.07.2015 passed by the District Judge, Family Court,

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Hisar whereby, husband-Gourav Juneja has been made liable to pay

maintenance @ ` 15,000/- per month to wife-Seema and @ ` 5000/- per

month to minor daughter-Tani. In CRR(F)-205-2015, wife and the minor

daughter are seeking enhancement in the maintenance amount whereas, in

CRR(F)-276-2015, the husband is seeking reduction in the same.

2. In brief the facts of the case (as taken from CRR(F)-205-2015)

are that a marriage of petitioner No.1-Seema was solemnized with

respondent-Gourav Juneja on 18.02.2012 as per Hindu rites and ceremonies

at Hisar. After marriage, both the parties resided together at Rohtak,

Gurgaon and Hisar and out of this wedlock, petitioner No.2-Tani was born

on 07.01.2013. On account of the fact that petitioner No.1 was harassed in

connection with the demand of dowry, she was turned out of the

matrimonial home. Since, she was not able to support herself, she filed a

petition under Section 125 of Code of Criminal Procedure (for short ‘the

Cr.P.C.’), which was allowed by the impugned judgment dated 13.07.2015

allowing maintenance @ ` 15,000/- per month to petitioner No.1-wife and

@ ` 5000/- per month to petitioner No.2 minor daughter, which judgment is

under challenge in both the criminal revisions.

3. Learned counsel appearing on behalf of the petitioners-

claimants submits that the respondent is an able bodied person and is

working as Deputy Manager at Manesar Plant, Gurgaon and earning more

than ` 1,65,000/- per month. Apart from that, he is also owner in possession

of four residential houses in Gandhi Nagar, Rohtak and one another house

in which the respondent with his family members is residing on the first

floor and the ground floor has been rented out, as well as other movable and

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immovable properties. It is also argued that besides having these immovable

properties, he is also having various bank accounts, insurance policies, debit

card and credit card, car etc. and living a luxurious life. It is contended that

the amount of maintenance that has been assessed is wholly, in adequate.

4. Per contra, learned counsel appearing on behalf of the

respondent-husband argues that petitioner No.1-wife was suffering from

acute problem of Schizophrenia since 2006, which fact was concealed by

her family members at the time of marriage. The marriage was a simple

marriage and no dowry articles were given in the marriage or after the birth

of the child. The allegations regarding demand of dowry and harassment

are denied as being false. It is argued that the plea of being unable to

support herself is patently false as in the petition under Section 9 of Hindu

Marriage Act, she stated that she was employed as a Lecturer of

Mathematics at GJU Hisar on a monthly salary of ` 12,000/- per month in

the year 2008-2009 and thereafter, she worked at Chhaju Ram Jat College,

Hisar as a Guest Teacher on contract basis. It is also contended that she

also has a monthly income of around ` 52,000/- per month. Learned

counsel for the respondent denied of getting a salary of ` 1,65,000/- per

month or that he was owner in possession of any property as mentioned by

the petitioners. It is stated that the respondent is getting ` 55,726/- per

month as salary and that he has to pay three loans i.e. two from LIC and one

from HDFC bank and apart from that, he has liability of old aged parents

and unmarried sister. It is contended that after paying monthly rent and

meeting all these liabilities, he has only ` 6950/- in hand from which he has

to bear his personal expenses as well. In support of his arguments, learned

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counsel relied upon judgments rendered in Damanpreet Kaur vs.

Indermeet Juneja and another, 2012(19) RCR (Criminal) 905 and

Mamta vs. Rajesh, 2001(1) RCR (Civil) 588.

5. I have heard learned counsel for the parties, apart from perusing

the record.

6. The learned District Judge, Family Court, after taking into

consideration the arguments as raised, vide the impugned judgment, has

assessed maintenance @ ` 15,000/- per month to petitioner No.1 and @ `

5000/- per month to petitioner No.2, which has been assailed by both the

parties. The only question that needs to be settled in both these criminal

revisions is the quantum of maintenance that the petitioner No.1-wife and

petitioner No.2-minor daughter would be entitled to receive from the

respondent-husband. For settling this controversy, the income of the

husband and his liabilities would have to be referred to.

7. Marriage between petitioner No.1-Seema and respondent-

Gourav Juneja is not in dispute nor is it in dispute that the respondent is

working as Deputy Manager in the Maruti Suzuki India Limited at Gurgaon.

His salary slip for the month of August 2014 and September 2014 were

placed on the record as Ex.P1 and Ex.P2 and to prove the said salary slips,

Mr. Nitian Saraswat, Assistant Manager, stepped into the witness box as

PW1 wherein, it was shown that the gross salary of the respondent was `

1,04,456/- besides getting ` 15,000/- per annum as medical allowance and `

36,800/- per annum against LTC. During the pendency of the present

proceedings, Income Tax Return Acknowledgment of the respondent for the

assessment year 2017-18 has been placed on record as Annexure A-1, where

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the gross salary of the respondent has been reflected as ` 18,51,482/- and

with deductions under Chapter VI-A of ` 1,50,000/-, his total income has

been shown to be ` 17,01,480/-, on which tax has been assessed as `

3,45,507/-.

8. During the pendency of the present proceedings, respondent

has produced on record his salary certificate for the month of March, 2018

as Annexure P-8, as per which his gross emolument is ` 1,54,014.41, out of

which a total deductions of ` 48,128.7 has been made and after these

deductions, his net carry home salary comes to ` 1,05,885.70. So far as

deductions are concerned, a sum of ` 27,930/- has been deducted towards

income tax, ` 6456/- has been deducted towards PF (Provident Fund) and a

sum of ` 11,000/- has been deducted towards VPF (Voluntary Provident

Fund), apart from miscellaneous deductions of ` 132/-, ` 290.7 and ` 102/-

towards canteen charges (for tea, lunch etc.), ` 100/- towards

superannuation fund, ` 10/- towards Haryana Welfare Fund, ` 2000/-

towards transport charges, etc.

9. The respondent has also placed on record detailed chart

(Annexure P-9) to show his liabilities, which comes to ` 1,08,085/-. A

perusal of the same goes on to show that:

(i) he borrowed LIC Loan-1 for an amount of ` 13,00,000/- on

25.11.2010, of which he is paying EMI of ` 15808/-, which is still running

and the same is shown to be a loan against property for sister’s study and

house construction (Annexure P-11 is the approval letter of the same, which

shows that it was a Housing Loan only). Further, this is a housing loan,

whereas the respondent thorough out denied of having any immovable

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property in his name.

(ii) he further borrowed LIC Loan-2 for a sum of ` 6,50,000/- on

06.05.2011, of which he is paying EMI of ` 8254/-, which is still running

and the same is shown to be a loan for self marriage/sister’s study

(Annexure P-12 is the approval letter of the said loan, which is again a

housing loan). This is also a housing loan.

(iii) he further borrowed HDFC Loan-1 of ` 4,49,000/- in January 2012

and the same was closed in March 2015, of which he was paying EMI of

` 10741/- (Annexure P-13 shows that it was a personal loan).

(iv) he further borrowed HDFC Loan-2 for a sum of ` 8,91,000/- in

August 2014 and the same was closed in May, 2016, of which he was

paying EMI of ` 20,848/- (Annexure P-14 shows that it was a personal

loan).

(v) he further borrowed HDFC Loan-3 for a sum of ` 7,50,000/- in March

2015 and the same was closed in May 2016, of which he was paying EMI

of ` 17,549/-. Annexure P-15 shows that it was a personal loan.

(vi) he further borrowed HDFC Loan-4 for a sum of ` 13,40,000/- in May

2016, which is still running, of which he is paying EMI of ` 29,463/-

(Annexure P-16 shows that it is a personal loan).

(vii) he further borrowed HDFC Loan-5 for a sum of ` 3,00,000/- in April,

2017, which is still running, of which he is paying EMI of ` 6560/-

(Annexure P-17 shows that it is a personal loan).

In the said chart, the respondent has mentioned that he is

paying ` 18,000/- per month towards rent and placed on record photocopy

of the Rent Agreement as Annexure P-10, which was executed on

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13.3.2018. This court has minutely perused this chart as placed on record

by the respondent to show that out of his net income, his total expenditure

comes to ` 1,08,085/-. However, one thing which is very interesting to

notice here is that when HDFC Loan-1 was closed in March, 2015, he

borrowed HDFC Loan-3 in March 2015 itself. Further, when HDFC Loan-2

and HDFC Loan-3 were closed in May 2016, he borrowed HDFC Loan-4

closed in May 2016 itself. As per petitioner no.1-wife, she was thrown out

of the matrimonial home on 29.03.2013 and she filed the petition under

Section 125 Cr.P.C. on 16.09.2013 and the HDFC Loan-2 to 5 have been

borrowed, after the institution of the petition under Section 125 Cr.P.C.

10. This court again turns to the salary slip Annexure P8, as per

which after deductions (as reflected above), the net salary of the respondent

comes to ` 1,05,885/- per month, which does not include deduction of `

11,000/- towards VPF (Voluntary Provident Fund) which is involuntary.

11. 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

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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 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

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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.

12. In Vinny Parmvir Parmar v. Parmvir Parmar, (2011) 7 Scale

741, the Supreme Court held that the quantum of maintenance inter alia

depends on the status of the husband. There, the Court recalled the

considerations as follows:

“12…………………….The Court has to consider the status of the
parties, their respective needs, the capacity of the husband to
pay, having regard to reasonable expenses for his own
maintenance and others whom he is obliged to maintain under
the law and statute. The courts also have to take note of the
fact that the amount of maintenance fixed for the wife should
be such as she can live in reasonable comfort considering her
status and mode of life she was used to live when she lived
with her husband. At the same time, the amount so fixed
cannot be excessive or affect the living condition of the other
party……………………..”.

13. Similarly, in Jasbir Kaur Sehgal v. District Judge, Dehradun

and Ors., 1997 (7) SCC 7, the Supreme Court held that there can be no set

formula laid down for fixing the amount of maintenance. Rather, it depends

on the facts and circumstance of each case. Thus, the Court must consider

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the status of the parties, their respective needs and the capacity of the

husband to pay having regard to his reasonable expenses for his own

maintenance. Accordingly, the amount of maintenance should be such that

the wife is able to live in “reasonable comfort” considering her status and

lifestyle she had while living with her husband and she does not feel

handicapped during the prosecution of her case.

14. In the present case, the carry home net income of the

respondent (inclusive of house rent and other miscellaneous allowances),

after deductions towards Income Tax, Provident Fund etc. is amounts to

approximately ` 1,16,885/- per month. The involuntary VPF (Voluntary

Provident Fund) of ` 11,000/- is added to the net income. The repayment

towards installments of housing loan of ` 15,808/- (LIC Loan-1 taken

towards house construction and sisters study) and repayment of ` 8254/-

(LIC Loan-II taken on account of his marriage and sister’s study) and

repayment of other loans cannot be taken as statutory deductions. The

respondent ought to have placed his ITR and computation sheet on the

record to establish his exact income and liabilities, which he has failed to

do. The contention raised that he has the responsibility of looking after his

old aged parents and sister is not sustainable. The detailed chart, which is

placed on record as Annexure P-9 shows that mother of the respondent is

getting pension of ` 25,769/- per month and in this regard, reliance has been

placed upon the statement of account Annexure P-20. Though Annexure P-

9 refers to three different loans borrowed by mother of the respondent,

however, no such documents has been placed on record. Further, no

document been produced on record to establish that sister of the respondent

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is dependent upon him. Deduction from the gross pay would only be those

which are statutorily allowed. Any repayment of personal loans cannot be

agitated as legitimate deduction from his net salary.

15. The argument that petitioner No.1 was working and therefore

cannot claim maintenance is again not sustainable. Reliance on document

showing that she was working would have on bearing as these appointments

were prior to her marriage. Nothing substantial is available to show that the

petitioner No.1 is currently employed. 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 wife. The respondent 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 ` 1,16,885/- per month the

maintenance amount payable to the petitioners i.e. wife and the minor child is

enhanced to ` 20,000/- and ` 8000/- per month respectively. The enhanced

payment of maintenance would be payable from the date of passing of this

order. The impugned judgment dated 13.07.2015 is modified to this extent

only.

16. In view of the above, CRR(F) No.205 of 2015 is allowed and

CRR(F) No.276 of 2015 is dismissed.

(JAISHREE THAKUR)
October 3, 2018 JUDGE
vijay saini

Whether speaking/reasoned Yes/No
Whether reportable Yes/No

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