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Smt. Geeta Tiwari vs Shri Ashok Tiwari on 8 February, 2018

THE HIGH COURT OF MADHYA PRADESH
CRIMINAL REVISION NO. 861/2015
Jabalpur, Dated 08.02.2018

Shri A.D. Mishra, learned counsel for the applicant.

Shri Rishabh Rajak, learned counsel for the

respondent.

The applicant has filed this revision against the order

dated 24.03.2015 passed by the Principal Judge, Family

Court, Sagar in MJC No. 2/2014 thereby awarding the

maintenance of Rs. 7,500/- per month in favour of the

applicant.

2. Brief facts of the case are that the respondent and

applicant are husband and wife. They have performed their

marriage 30 years ago. As per the applicant, the respondent

is in habit of consuming liquor and ganja since long and

never discharge his family liabilities. The respondent,

therefore, started residing separately from the applicant

since 8-9 years. As the respondent refused to pay

maintenance to the applicant, she, therefore, filed an
application under Section 125 of the Cr.P.C. claiming

maintenance stating that she has no source of income and,

therefore, she is unable to maintain herself. The Family

Court vide order dated 24.03.2015 has allowed the

maintenance of Rs. 7,500/- per month to the applicant.

Being aggrieved by that order, the applicant has filed the

present petition for enhancement the amount of

maintenance.

3. Learned counsel for the applicant argues that the

respondent is working as Assistant Teacher and is getting

salary of Rs. 40,000/- per month and he also owned

agricultural land. He further submits that the respondent

has not filed any documents to show that he has taken a

loan from the bank and in absence of any documents

regarding the loan, the Family Court has erred in taking

into account that Rs. 12,000/- has deducted from his salary

towards the loan. In such circumstances, learned counsel

for the applicant submits that the amount of maintenance
awarded by the Family Court be enhanced accordingly.

Learned counsel for the applicant further relied on the

judgment passed by the Apex Court in the case of Shri

Bhagwan Dutt Vs. Smt. Kamla Devi and Another, (1975)

2 SCC 386 as well as the judgment passed by the Apex

Court in the case of Vinny Parmvir Parmar Vs. Parmvir

Parmar, AIR 2011 SC 2748.

4. On the other hand, learned counsel for the respondent

supports the order passed by the Family Court and submits

that the amount awarded by the Family Court is just and

proper. He submits that the salary of the respondent is

Rs.36,000/- and after deducting the amount of Rs. 12,000/-

per month towards his loan account he is getting only

Rs.24,000/- per month and in the said amount he has to

maintain his father and younger brother, therefore, the

amount passed by the Family Court be not modified or

enhanced.

5. I have heard learned counsel for the parties and
perused the record. From perusal of the record, it reveals

that the applicant has filed the documents regarding the pay

of the respondent before the Family Court which shows

that the respondent is working on the post of Assistant

Teacher in the Government School. According to pay slip

(Ex.-P/21), the net salary of the respondent is Rs. 43,341/-

and after deduction, he is getting salary of Rs. 36,391/- this

pay slip is of the month of July, 2014. Thereafter, there is

increase in the pay scale of the Government employee and

the respondent must be getting the higher pay scale then

Rs. 36,391/-. The petitioner has also examined the

accountant of the school in which he admitted that the

respondent is getting salary of Rs. 36,391/- after deduction

in the year 2014. So far as, the father of the respondent is

concerned, he is getting pension of Rs. 13,000/- per month

and his younger brother is residing separately. Thus, there

is no liability on the respondent any of his family members.

The Apex Court in the case of Vinny Parmvir Parmar
(supra), has considered the case of Bhagwan Dutt (supra)

in para 10, 11 and 12 and held as under:-

“10. In Shri Bhagwan Dutt Vs.
Smt. Kamla Devi and Another,
though this Court has considered
the amount of maintenance
payable to wife u/s 488 of the
Code of Criminal Procedure,
1898, the principle laid down is
applicable to the case on hand. In
para 19, this Court held:

19. The object of these
provisions being to prevent

vagrancy and destitution, the
Magistrate has to find out as to
what is required by the wife to
maintain a standard of living
which is neither luxurious nor
penurious, but is modestly
consistent with the status of the
family. The needs and
requirements of the wife for such
moderate living can be fairly
determined, only if her separate
income, also, is taken into
account together with the
earnings of the husband and his
commitments.

11. In Chaturbhuj Vs. Sita Bai,
which also relates to maintenance
claim by deserted wife u/s 125 of
the Code of Criminal Procedure,
1973. The following statement in
para 8 is relevant which reads as
under:

……Where the personal income
of the wife is insufficient she can
claim maintenance u/s 125 Code
of Criminal Procedure. The test
is whether the wife is in a
position to maintain herself in the
way she was used to in the place
of her husband. In Bhagwan Dutt
Vs. Kamla Devi it was observed
that the wife should be in a
position to maintain a standard of
living which is neither luxurious
nor penurious but what is
consistent with status of a family.

The expression “unable to
maintain herself” does not mean
that the wife must be absolutely
destitute before she can apply for
maintenance u/s 125 Code of
Criminal Procedure.

12. As per Section 25, while
considering the claim for
permanent alimony and

maintenance of either spouse, the
Respondent’s own income and
other property, and the income
and other property of the
applicant are all relevant material
in addition to the conduct of the
parties and other circumstances
of the case. It is further seen that
the court considering such claim
has to consider all the above
relevant materials and determine
the amount which is to be just for
living standard. No fixed formula
can be laid for fixing the amount
of maintenance. It has to be in
the nature of things which
depend on various facts and
circumstances of each case. 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.

These are all the broad principles
courts have to be kept in mind
while determining maintenance
or permanent alimony.”

6. Thus, in light of the aforesaid judgments as well as

the over all evidence produced by the applicant, this

revision is partly allowed and enhanced the amount of

maintenance awarded by the Family Court from Rs. 7,500/-

per month to Rs.10,000/- per month. The enhanced amount

shall be payable to the applicant from the date of passing of

this order.

(Ms.Vandana Kasrekar)
Judge
ashish

Digitally signed by ASHISH
KUMAR LILHARE
Date: 2018.02.15 01:37:59

-08’00’

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