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Smt. Meeta Shain vs K.P. Shain on 18 January, 2018

1 Criminal Revision No.636/2015
[Smt. Meeta Shain Vs. K.P. Shain]

HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
SINGLE BENCH:
HON. SHRI JUSTICE G.S. AHLUWALIA

Criminal Revision No.636/2015

………Applicant: Smt. Meeta Shain

Versus

………Respondent: K.P. Shain
—————————————————————————————-
Shri M.P. Agrawal, Advocate for applicant.
Shri Devendra Kumar Sharma, Advocate for respondent.
—————————————————————————————-
Date of hearing : 18/01/2018
Date of Order : 18/01/2018
Whether approved for reporting : Yes
Law laid down:

Significant paragraphs:
ORDER

(18/01/2018)
Per Justice G.S. Ahluwalia,

This Criminal Revision under Section 19 (4) of the Family

Court Act, 1984 read with Sections 397, 401 of Cr.P.C. has been

filed against the order dated 20/4/2015 passed by the Principal

Judge, Family Court, Gwalior in M.Cr.C. No.294/2014 by which

the application filed by the applicant under Section 125 of Cr.P.C.

has been allowed and the respondent has been directed to pay

Rs.3,000/- to the applicant and Rs.2,000/- to the child. The
2 Criminal Revision No.636/2015
[Smt. Meeta Shain Vs. K.P. Shain]

present revision has been filed by the applicant for enhancement

of maintenance amount.

The necessary facts for disposal of the present revision in

short are that the applicant filed an application under Section 125

of Cr.P.C. against the respondent on the ground that she got

married to the respondent on 7/2/2004 at Kidnnur, District

Kottyam, Kerala as per Hindu rites and rituals. Gold and silver

ornaments, household articles, clothes, Rs.1,00,000/- in cash etc.

was given at the time of marriage. In spite of the harassment and

ill-treatment by the respondent, the applicant continued to perform

her marital liabilities and gave birth to a baby girl on 21/8/2008. It

was also alleged that the applicant has resided with the

respondent for about 10 years after her marriage. The respondent

used to beat her and she was not provided treatment in case of

medical emergency and even food was also not provided to her

on several occasions. In the month of November, 2013, the

applicant was badly beaten by the respondent and she was turned

out of her matrimonial house. The applicant informed her father on

telephone about the conduct of the respondent, as a result of

which, her father visited her matrimonial house and tried to

convince the respondent, who assured that he will not ill-treat her

in future and relying on the promises made by the respondent,

father of the applicant left the applicant and her child with the

respondent. However, the behaviour of the respondent did not
3 Criminal Revision No.636/2015
[Smt. Meeta Shain Vs. K.P. Shain]

improve and he continued to harass the applicant physically as

well as mentally. The applicant again informed her father about

the conduct of the respondent. On 26/4/2014 her father again

came to the matrimonial house of the applicant and tried to pursue

the respondent, but in his turn the respondent started abusing her

father and turned the applicant and her daughter out of the house,

as a result of which, the applicant after making a complaint to the

police station, came to Gwalior on 28/4/2014 alongwith her

daughter and from thereafter she is residing in her parents’ home.

After turning out the applicant from her matrimonial house, the

respondent did not take care of the applicant or her daughter and

did not make any arrangement for the maintenance of the

applicant. The applicant is residing in her parents’ home from

29/4/2014 and she has no source of income and with great

difficulties she is maintaining herself, as the father of the applicant

has already retired from service. The respondent is working on the

post of Senior Staff Assistant in Bhilai Steel Plant, Bhilai and his

monthly gross income is around Rs.35,000/-. The applicant is

completely dependent on the respondent and is entitled to get

Rs.20,000/- per month towards the maintenance and treatment of

herself and her daughter. The respondent has deserted the

applicant without any reasonable reason.

The respondent filed his reply and denied the allegations.

He further submitted that he never ill-treated the applicant. He
4 Criminal Revision No.636/2015
[Smt. Meeta Shain Vs. K.P. Shain]

admitted that he is working on the post of Senior Staff Assistant in

Bhilai Steel Plant, Bhilai and submitted that free medical facility is

extended by the employer and, therefore, the allegation of not

providing any expenses for medical treatment is false. In fact it is

the applicant whose behaviour towards the respondent is not

good. The father of the applicant used to threaten the respondent,

as a result of which, he lodged a complaint on 13/11/2013 in

Police Station Kotwali, Sector 6, Bhilai. It was further alleged that

the police had also advised the applicant to live peacefully with the

respondent, but in spite of that she did not improve her conduct

and ultimately she alongwith her daughter, without the permission

of the respondent, collected her ornaments and belongings and

went back to Gwalior. The respondent further admitted that his

gross income is Rs.32,674/- and it was alleged that his net take

home salary is Rs.14,158/-. The applicant had also taken a house

loan, as a result of which, he is paying an additional installment of

Rs.5,292/- per month and his total saving is only Rs.9,000/-. It

was further mentioned in the reply that without raising any dispute,

the respondent is ready to pay Rs.3,000/- per month by way of

maintenance to the applicant and his daughter. Thus, it is clear

that the factum of marriage and the paternity of the daughter has

not been denied by the respondent.

In the trial, the applicant examined herself as PW-1 and her

father Mohanlal Agrawal as PW-2. However, it appears that the
5 Criminal Revision No.636/2015
[Smt. Meeta Shain Vs. K.P. Shain]

respondent was proceeded ex parte on 22/9/2014 and the

applicant was examined on 27/11/2014 and her father Mohanlal

Agrawal was examined on 13/4/2015 and since the respondent

was proceeded ex parte, therefore, the applicant or her witness

was not cross-examined at all. It is also clear that the respondent

also did not file any application for setting aside the ex parte

proceedings and he even did not examine himself and his

witnesses and ultimately the trial court passed an ex parte order

on 20/4/2015 directing the respondent to pay Rs.3,000/- and

Rs.2,000/- per month to the applicant and her child.

Challenging the quantum of the maintenance amount, it is

submitted by the counsel for the applicant that the maintenance

amount awarded is on a lesser side.

Per contra, it is submitted by the counsel for the respondent

that the maintenance amount awarded by the trial court is

adequate.

Heard learned counsel for the parties.

The respondent has not challenged the order dated

20/4/2015, therefore, the entitlement of the applicant to receive

the maintenance amount at the rate of Rs.3,000/- for herself and

at the rate of Rs.2,000/- for her child has not been challenged.

Since the applicant and her witness was not cross-examined by

the respondent and he himself did not appear as a witness and

has not challenged the findings of entitlement to receive the
6 Criminal Revision No.636/2015
[Smt. Meeta Shain Vs. K.P. Shain]

maintenance amount, this Court is of the view that no fault can be

found in the findings given by the trial court with regard to the

entitlement of the applicant to receive the maintenance amount.

The next question for determination is the quantum of

maintenance. It is well established principle of law that while

deciding the quantum of maintenance, the status of the parties

also plays an important role because the wife and the children are

entitled to enjoy the same status, which they would have

otherwise enjoyed in the company of husband/father.

In the present case, during pendency of the trial the

respondent had sent a copy of his salary slip by registered post to

the trial court. This salary slip is of the month of June, 2014,

according to which, the basic pay of the respondent was

Rs.16,876/- and he was getting Rs.14,918/- and, therefore, his

gross salary was 31,794/-. It is well established principle of law

that while calculating deductions from the salary only the

deductions which are compulsory under any statute can be taken

note of and any voluntary deduction by an employee cannot be

taken note of, because in order to show less take home salary, the

respondent can either enhance his contributions or deposits under

different heads voluntarily without any compulsion under the law

or he may take advances / loans and may claim installments

towards the deductions. Thus, any voluntarily deduction cannot be

considered.

7 Criminal Revision No.636/2015
[Smt. Meeta Shain Vs. K.P. Shain]

If the salary slip of the respondent is considered, then it is

clear that he was depositing Rs.8,025/- with the cooperative,

whereas he was repaying the installment of Rs.2,777/- under the

CPF loan. The respondent had taken a festival advance and

Rs.500/- was being deducted towards repayment of loan. Thus, it

is clear that the deduction of Rs.8,025/- under the cooperative

bank as contribution, Rs.2,777/- towards repayment of CPF loan

and Rs.500/- towards repayment of festival advance cannot be

taken into consideration in order to assess the take home salary

of the respondent. According to the salary slip, the monthly gross

pay of the respondent was Rs.32,674/- and after total deductions

of Rs.18,516/-, the take home salary of the respondent was

Rs.14,158/-. If an amount of Rs.8,025 + 2,777 + 500/-, i.e.

Rs.11,302/-, is excluded from the deductions, then his take home

salary would come to Rs.25,460/-. It was further mentioned in the

reply that the respondent has taken a house loan. Loan is nothing

but receipt of salary in advance and taking of house loan cannot

be said to be a statutory compulsion. If the respondent had

voluntarily taken a house loan knowingfully well that he will be

required to repay the installments, then the same cannot be taken

into consideration while assessing the take home salary. Thus,

this Court is of the view that the net take home salary of the

respondent is Rs.25,460/-.

At this stage, it is submitted by the counsel for the
8 Criminal Revision No.636/2015
[Smt. Meeta Shain Vs. K.P. Shain]

respondent that certain proceedings are pending before the

Supreme Court and the applicant has admitted in those

proceedings that she is working as Assistant Teacher somewhere

in Chennai and, therefore, he prays for some time to place the

same on record.

The prayer for adjournment was vehemently opposed by the

counsel for the applicant. It was submitted by him that the present

case is a revision arising out of the order passed by the court

below and the court below has specifically come to a conclusion

that the applicant has no independent source of income. The

applicant was given full opportunity by the trial court, but he

neither engaged any lawyer nor appeared before the trial court

and even the reply was sent by the registered post. He did not

cross-examine the applicant and did not examine either himself or

any of his witnesses. Even in the present case, the respondent

has filed his Vakalatnama on 4/9/2015 and more than two and half

years have passed, but neither he has chosen to file any reply nor

he has filed any document. Even the cause-list of the hearing

party cases was uploaded by the High Court well in advance, but

still no step has been taken by the respondent to place any

document on record, on which he wants to rely. Furthermore, it is

submitted by the counsel for the applicant that if the respondent is

of the view that certain events have taken place subsequent to

passing of the order by the trial court, then the only remedy
9 Criminal Revision No.636/2015
[Smt. Meeta Shain Vs. K.P. Shain]

available to him is to file an application under Section 127 of

Cr.P.C. It was further submitted that in the Supreme Court the

respondent did not appear for reconciliation proceedings, which

clearly shows that he is not interested in reconciliation and is only

interested in delaying the proceedings.

Undisputedly, the respondent is working as a Senior Staff

Assistant in Bhilai Steel Plant, Bhilai. There is nothing on record to

suggest that the applicant has any independent source of income.

The take home salary of the respondent is Rs.25,460/-.

Considering the status of the parties, prince index, inflation rate,

prices of the articles of daily need coupled with the fact that the

expenses on the baby child must be increasing day by day to

cater the need of her higher studies, this Court is of the view that

the compensation of Rs.3,000/- and Rs.2,000/- to the applicant

and to the child needs to be enhanced.

Accordingly, the order dated 20/4/2015 passed by the

Principal Judge, Family Court, Gwalior in M.Cr.C. No.294/2014 is

affirmed subject to the modification that in place of Rs.3,000/- per

month, as awarded by the trial court, to the applicant and in place

of Rs.2,000/- per month granted to the daughter, the respondent

shall pay Rs.4,000/- per month to the applicant and Rs.3,000/- per

month to her daughter by way of maintenance. The enhanced

amount shall be payable from 20/4/2015, i.e. the date on which

the order was passed by the Principal Judge, Family Court,
10 Criminal Revision No.636/2015
[Smt. Meeta Shain Vs. K.P. Shain]

Gwalior.

The order dated 20/4/2015 passed by the Principal Judge,

Family Court, Gwalior in M.Cr.C. No.294/2014 is hereby modified

to the extent mentioned above.

Accordingly, the application succeeds and is hereby allowed.

(G.S. Ahluwalia)
Judge
18/01/2018
Arun*

Digitally signed by ARUN KUMAR MISHRA
Date: 2018.01.23 16:32:29 +05’30’
11 Criminal Revision No.636/2015
[Smt. Meeta Shain Vs. K.P. Shain]

HIGH COURT OF MADHYA PRADESH, JABALPUR,
BENCH AT GWALIOR

Gwalior : Dated 18/1/2018
Shri M.P. Agrawal, Advocate for appellant.
Shri Devendra Kumar Sharma, Advocate for respondent.
Arguments heard.

Order dictated, signed and dated on separate sheets.

(G.S. Ahluwalia)
Judge
Arun*

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