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*