(Per : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Appeal is admitted. Learned advocate, Mr. Pathan appearing for the opponent waives service of notice of admission of the appeal.
2. Looking to the small issue involved and the fact that question of maintenance payable to the wife by the respondent-husband is involved, we have, with the consent of the learned advocates for the parties, taken up the appeal for final hearing today itself.
3. Filing of paper book is dispensed with.
4. The appellant-wife had filed Family Suit No. 44 of 2010 before Family Court, Junagadh seeking maintenance from the respondent-husband. Such suit was partially allowed. In addition to Rs. 3,000/- per month that the wife receives from the husband by way of maintenance fixed under Section 125 of Criminal Procedure Code, the Family Court by the impugned judgement dated 30.06.2011, directed the respondent to pay additional maintenance of Rs. 850/- per month under Section 18 of the Hindu Adoption and Maintenance Act from the date of the order.
5. It is this order the appellant-wife has challenged in the present appeal seeking further enhancement of maintenance.
6. Having heard learned counsel for the parties and having perused documents on record, what emerges is that the appellant-wife receives Rs. 3,000/- per month by way of maintenance provided under Section 125 of Cr. P.C. The Family Court, while disposing of the suit, kept this aspect in mind and directed the husband to pay additional sum of Rs. 850/- per month by way of maintenance. The appellant-wife therefore, in all, receives Rs. 3,850/- per month from the husband by way of maintenance.
7. The Family Court though found that such maintenance of additional sum of Rs. 850/- was justified from the date of the suit I.e. 05.08.2006, however, was of the opinion that such liability of arrears would be more than Rs. 50,000/- and the husband would not be able to pay such a sizable sum. It was on this count that the Family Court denied any arrears to the wife towards maintenance fixed by the Court.
8. It is also an admitted position that the respondent-husband is employed as a Constable in the Police Department of the State of Gujarat. He, therefore, earns secured and sizable salary every month. It has also come on record that the respondent has married again and has four children from such second marriage. We need not comment on validity of such marriage since in any case, the opponent has the responsibility to maintain his children.
9. In order to come to a conclusion with respect to just maintenance to be paid to the wife, we had called upon counsel for the husband to place on record his latest salary statement. Counsel has accordingly produced the pay slip of the respondent for the month of February, 2012. The pay slip reveals that the respondent is in the pay band of Rs. 10,190/- with grade pay of Rs. 2,400/-. His basic pay thus is Rs. 12,590/-. He receives 58% D.A aggregating to Rs. 7,302/-. His gross salary inclusive of other allowances comes to Rs. 20,097/-. The salary slip curiously shows total deduction of Rs. 14,353/-. However, if the nature of such deductions are perused, it immediately emerges that he contributed Rs. 8,000/- in his GPF account. He has also been visited with deduction of Rs. 5,053/- towards income tax. Two things, therefore, emerge. Firstly Rs. 8,000/- of provident fund deduction is substantially voluntary in nature. In any case such contribution may it be voluntary or compulsory, goes towards the savings of an employee and is paid over upon his retirement, if not sooner done, with interest. Moreover, the deduction of Rs. 5,053/- of income tax must be viewed more closely. The deduction was made in the last month of financial year and such deduction may have been made principally in that month to offset for any shortfall in tax that the employee may have had to pay. In any case for an employee earning gross salary of Rs. 20,000/- per month and when he is contributing as much as Rs. 8,000/- towards GPF which contribution qualifies for deduction under Section 80-C of the Income Tax Act, his tax liability under no circumstances would be Rs. 5,000/- per month i.e. Rs. 60,000/- in a year. In fact, even considering the minimum contribution towards GPF which is 10% of the basic and considering the income tax exemption limit of Rs. 1,80,000/- per annum, his tax liability would be negligible.
10. Bearing in mind these factors, and considering on one hand that he draws gross salary of Rs. 20,000/- and on the other hand, the respondent also has liability to support as many as four children out of second marriage, we would like to provide for some increase of maintenance for the wife. While doing so, we bear in mind two more factors. Firstly that the Family Court granted no arrears though found increase in the maintenance justified from the date of filing of the suit and on the other hand the husband has permitted the wife to occupy his house for wife's residence. On consideration of these factors, we provide that from the date of this appeal before this Court, the wife shall receive additional maintenance of Rs. 1,000/- per month. In other words by modifying the order of the Family Court it is provided that under Section 18 of the Hindu Adoption and Maintenance Act, wife shall receive total monthly maintenance of Rs. 1,850/- from the month of March,2012. This would be in addition to Rs. 3,000/- per month that the wife is receiving in order passed under Section 125 of Cr.P.C. It is further clarified that till the month of March,2012, the appellant-wife shall receive monthly maintenance as provided by the Family Court in the impugned order. Appeal is disposed of accordingly.
[AKIL KURESHI, J.] [C.L.SONI, J.] JYOTI Top