Partly allowed

Niranjan Singh Alias Niranjan Kumar v. the State of Jharkhand

Jharkhand HC18 Jul 2023Cr.Rev./468/2019

Case brief

AI extract

What is this about?

The High Court allowed the petitioner's criminal revision, modifying the lower court's maintenance award. The Court reduced the wife's maintenance to Rs. 6,000/- per month while upholding the child's maintenance at Rs. 3,000/-, based on statutory limits relative to the husband's income, and directed adjustment of arrears for interim payments.

What did the court decide?

Petitioner allowed in part; wife's maintenance reduced to Rs. 6,000/month; minor child's maintenance at Rs. 3,000/month upheld; arrears calculated after adjusting interim payments.

Niranjan Singh Alias Niranjan Kumar Vs the State… — Maintenance and Alimony | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 468 of 2019

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….

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Niranjan Singh @ Niranjan Kumar …… Petitioner Versus

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The State of Jharkhand

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Sudha Kumari Singh …… Opp. Parties

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PRESENT

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HON'BLE MR. JUSTICE SANJAY PRASAD

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For the Petitioner : Mr. Navneet Sahay, Advocate For the State : Mrs. Priya Shrestha, A.P.P. For the O. P. No. 2 :Mr. Soumitra Baroi, Advocate.

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ORDER

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C.A.V. on 13/12/2022 Pronounced on 18/07/2023

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….

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This Criminal Revision No. 468 of 2019 has been filed on behalf of the petitioner challenging the order dated 11.01.2019 passed by Sri Satya Prakash No. –II, the learned Principal Judge, Family Court, Dhanbad in the Original Maintenance Case No. 430 of 2017 whereby Sri Satya Prakash No. –II, the learned Principal Judge, Family Court, Dhanbad has allowed the petition of the opposite party no. 2 filed under Section 125 of the Cr. P. C. for maintenance and has directed the petitioner to pay maintenance amount of Rs. 10,000/- per month to the opposite party no. 2 towards her maintenance and a sum of Rs. 3,000/- per month towards the maintenance of her minor child i.e. total Rs. 13,000/per month, which are payable by the 10^th day of every succeeding month, from the date of application.

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The factual matrix of the case of the O.P. No. 2 is that on 18-09-2017, O.P. No.2 filed an application under Section 125 of Cr.P.C. being Original Maintenance Case No.430 of 2017 against the petitioner before the learned Principal Judge, Family Court at Dhanbad stating therein that the O.P No.2 and the petitioner are

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legally married wife & husband and their marriage was solemnized on 02-12-2015 at Dhanbad according to Hindu customs and after marriage, both lived together at Taregnadih and out of the wedlock, the couple has one child, aged about 07 months. It is alleged that after sometime, her in-laws had started physical and mental torture upon her and on 09-11-2016, the petitioner's family had kicked out the O.P. No.2 due to nonfulfillment of their demands of Scorpio Car and since then, she is living at her parental house where she gave birth to a child and the entire delivery expenses were paid by her family and the petitioner had never paid a single rupee. It is submitted that the petitioner is posted as a Government Teacher and earns Rs.30,000/- Per Month and also earns Rs.10,000/- Per Month from Tuition and misc. job. Whereas the O.P. No.2 has no sources to maintain herself and her minor child and she is dependent upon her parents. She prayed for directing the petitioner to pay Rs.10,000/- Per Month to her and Rs.5,000/- Per Month to her child.

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Heard learned counsel for the petitioner and learned counsel for the State and learned counsel for opposite party no. 2. 4. It is submitted by the learned counsel for the petitioner that the impugned order dated 11.01.2019 passed by the learned Principal Judge, Family Court, Dhanbad is illegal and not sustainable in the eyes of law. It is submitted that the impugned order is bad in law as well as on facts and as such the same is liable to be set aside. It is submitted that the impugned order dated 11.01.2019 passed by the Learned Court below in Original Maintenance Case No. 430 of 2017, is without jurisdiction. It is submitted that the petitioner did not appear before the learned court below and the learned court below, vide order dated 16-042018/17-04-2018, ordered the case to be proceeded ex-parte against the petitioner. It is submitted that thereafter, on 05-06-

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2018, the petitioner had filed a petition for recalling the order dated 16-04-2018/17-04-2018 by which the case was ordered to be proceeded ex-parte against the petitioner. It is submitted that the learned Principal Judge, Family Court, Dhanbad, vide order dated 07-07-2018, had rejected the petition dated 05-06-2018 filed by the petitioner. It is submitted that thereafter, on 03-08-2018, the petitioner moved before this High Court in Cr.M.P. No.2760/2018 for quashing the order dated 07-07-2018 passed by the learned Principal Judge, Family Court, Dhanbad in Original Maintenance Case No.430 of 2017 which is still pending before High Court. It is submitted that O.P. No. 2 got examined two (02) witnesses in support of her case. PW-1 is Sudha Kumari Singh, O.P. No.2 herself and PW-2 is Dulip Kumar Singh, Brother of O.P. No.2.

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It is submitted that the petitioner is always ready for reunion with the O.P. No.2 and to keep her and the child, presently aged about 02 year and 02 months, with him with honour and to maintain them properly. It is submitted that the O.P. No.2 has suppressed the facts she has lodged C.P. Case No.3428/2016 for the non-bailable offences alleged under Sections 498(A)/34 of IPC and Section 4 of Dowry Prohibition Act, 1961 against the petitioner and due to which, the petitioner is suffering from mental agony and physical harassment due to the forced litigation expenses. It is submitted that the O.P. No.2 has also suppressed the facts before the learned court below that pursuant to the order dated 03-05- 2018 passed by the High Court of Jharkhand in A.B.A. No.7357/2017 filed in connection with C.P. Case No.3428/2016, the O.P. No.2 is getting payment of ad-interim maintenance @ Rs.3,500/- per month since April, 2018 from the petitioner. It is submitted that the petitioner has already paid the ad-interim maintenance @ Rs.3,500/- per month till March, 2019 directly in the Bank Account of O.P. No.2 and these facts may be

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taken into account while adjudicating the instant case. It is submitted that the petitioner had joined his service on 16-08-2014 on the post of Block Teacher (Hindi) under the Education Department, Government of Bihar and at present, he is posted in the Upgraded Middle School, Jahangirpur (Jahanabad) and Gross Honorarium is Rs.12,524/- Per Month only, but till date, the petitioner has not been paid any Honorarium by the Govt. of Bihar and his appointment has also been declared improper vide order dated 08-06-2017 passed by the District Appellate Tribunal, Jahanabad in Complaint Case No. 49/2016. It is submitted that the Block Development Officer, Ratni, Faridpur (Jahanabad) vide Letter No.439 dated 09-04-2018 has requested the District Education Officer, Jahanabad to provide guidance for taking further steps for removal of the petitioner from his service. It is submitted that the learned court below has failed to appreciate that the petitioner does not have sufficient means from all sources for making payment of total Rs.13,000/- Per Month as maintenance allowance to O.P. No.2 and as such, the amount of total Rs.13,000/- Per Month awarded against him is improper, excessive and disproportionate to his income and it is not possible for him to pay the same to the O. P. No. 2. It is submitted that the learned court below has failed to appreciate that the petitioner has made several attempts for reconciliation with O.P. No.2, but the O.P. No.2 deliberately refused to live with the petitioner without any cogent and sufficient reasons. It is submitted that in view of Section 125(4) of Cr.P.C., a wife is not entitled to any maintenance, if she has voluntarily left the company of her husband and refuses to live with her husband without any cogent and sufficient reasons and as such, the O.P. No.2 is not entitled for any maintenance allowance from the petitioner. It is submitted that the quantum of maintenance awarded to opposite parties is

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exorbitant and the petitioner is not in a condition to pay the said maintenance and as such, the impugned order passed by the learned Court below is not sustainable in the eye of law and may be set aside in the interest of justice.

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On the other hand, learned counsel for the State has submitted that the impugned order passed by the learned Court below is fit and proper and no interference is required by this Court. It is submitted that the petitioner has deliberately refused the notice and as such, the learned Court below has fixed the ex-parte proceeding against him. It is submitted that opposite part no. 2 – wife has fully supported the case and has submitted that the petitioner has thoroughly neglected his wife and her child and also the opposite party no. 2 has compelled to file maintenance case against the petitioner and as such, the learned Court below has rightly granted maintenance of Rs. 10,000/- to the opposite party no. 2- wife and Rs. 3,000/- to her child i.e. total Rs. 13,000/- per month. It is submitted that P.W.-2, Dulip Kumar Singh is brother of the O. P. No. 2 and who has fully supported the case and as such, no illegality has been committed by the learned Court below and as such, the criminal revision application may be fit to be dismissed. 7. On the other hand, learned counsel for the opposite party no. 2, after adopting the submission of the learned A.P.P. has further submitted that the impugned order passed by the learned Court below is fit and proper and no interference is required by this Court. It is submitted that opposite party no. 2 is the legally married wife of this petitioner, but the petitioner is refusing to maintain them. It is submitted that this Criminal Revision Application is devoid of merit. It is submitted that although the petitioner had filed Cr. M. P. No. 2760 of 2018 for recalling the exparte order. However, the said Cr. M. P. No. 2760 of 2018 was withdrawn on 25.11.2019 as the same has become infructuous

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before the Co-ordinate Bench of this Court.

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The order dated 25.11.2019 is enclosed as Annexure- B to the counter affidavit filed on behalf of the opposite party no. 2 dated 21.08.2022. It is submitted that Anticipatory Bail of the petitioner was rejected twice, which is evident from the order dated 17.02.2020 passed in A. B. A. No. 7675 of 2018 by the Co-ordinate Bench of this Court, which is enclosed as Annexure-A to the counter affidavit filed by the O. P. No. 2. It is submitted that several times, Mediation has been held before this Court also and as such, the Co-ordinate Bench of this Court vide order dated 19.08.2019 passed in A. B. A. No. 7675 of 2018 enclosed as Annexure-C, has also observed that petitioner has not complied with the terms and conditions of the agreement prepared before the Mediator in JHALSA. It is submitted that the petitioner was granted sufficient opportunity to appear before the learned Court below, but he avoided to do so in spite of valid service of notice upon hi. It is submitted that the petitioner is getting monthly salary @ Rs. 35,000/- per month, which is evident from Annexure-D, which is photo copy of the salary slip dated 12.11.2021 issued by the Education Department, Government of Bihar, Patna. It is submitted that the petitioner has ousted and tortured the opposite party no. 2 in her matrimonial home. It is submitted that P.W.-1, Sudha Kumar Singh i.e. the wife –O. P. No. 2 has fully supported the case and as such, this Criminal Revision Application may be dismissed.

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Perused the Records and the impugned order passed by the learned Court below and considered the submissions of learned counsel for both the sides.

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It transpires from the pleadings of the parties that marriage between the petitioner and the opposite party no. 2 is admitted and even birth of a son due to matrimonial wedlock of the

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petitioner and the opposite party no. 2 is also admitted.

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From perusal of the Lower Court Records, it transpires that opposite party no. 2-wife had filed a petition under Section 125 of the Cr. P. C. on 20.10.2017 claiming maintenance of Rs. 10,000/per month to her and Rs. 5,000/- per month to her son total Rs. 15,000/- per month from the petitioner.

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It transpires that after institution of the case, notices were issued upon the petitioner by Speed Post and Courier as it reveals from the order sheet dated 06.11.2017. However, on 07.02.2018 when the petitioner did not appear before the learned Court below, then the Court again directed vide order dated 07.02.2018 for filing fresh requisites for appearance of the petitioner through Speed Post and Courier and which were issued on 15.02.2018 as it reveals from the order sheet. Even vide order dated 13.03.2018, opposite party no. 2-wife was directed to file fresh requisites through Speed Post and Courier for appearance of the respondent-petitioner fixing the date on 16.04.2018 and notices were issued on 23.03.2018 and when the matter was placed on 16.04.2018/17.04.2019, then the Court below has observed that the Speed Post has returned with refusal of the notice. After perusing the service report, the learned Court below fixed the ex-parte proceeding against the respondentpetitioner vide order dated 16.04.2018/17.04.2019.

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Thereafter the opposite party no. 2-wife got examined two witnesses in support of her case, who are as follows:-

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(i) PW-1 is Sudha Kumari Singh, O.P. No.2 herself and

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(ii) PW-2 is Dulip Kumar Singh, Brother of O.P. No.2.

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However, no document was marked as Exhibit on behalf of the wife-opposite party no. 2.

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Thereafter the learned Court below had passed the impugned order dated 11.01.2019 by directing the petitioner to pay maintenance amount of Rs. 10,000/- per month to the opposite

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party no. 2 towards her maintenance and a sum of Rs. 3,000/- per month towards the maintenance of her minor child i.e. total Rs. 13,000/- per month and the maintenance amount was directed to be paid from the date of application and hence, the present Criminal Revision Application has been filed on behalf of the petitioner.

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Learned counsel for the petitioner has submitted that notice has not been served upon him and even the opposite party no. 2 has suppressed the factum of lodging the C. P. Case No. 342 of 2016 for the offences under Sections 498(A)/34 of IPC and Section 4 of Dowry Prohibition Act, 1961 against the petitioner. It is further submitted that even the opposite party no. 2-wife has also supressed that the petitioner was paying ad-interim maintenance @ Rs.3,500/- per month till March, 2019 in the Bank Account of O.P. No. 2. However, learned counsel for the petitioner has also submitted that he has joined his service on 16-08-2014 on the post of Block Teacher (Hindi) in the Upgraded Middle School, Jahangirpur (Jahanabad) and is getting Gross Honorarium Rs.12,524/- Per Month only and latter on his appointment has been declared improper vide order dated 08.06.2017 passed by the learned District Appellate Tribunal, Jehanabad in Complaint Case No. 49/2016, which have been enclosed as Annexure-2 and 2/1 respectively.

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From perusal of the order dated 08.06.2017 passed in Complaint Case No. 49/2016, it would appear that even the said case was filed by the petitioner for the arrears of payment under the Provisions of Bihar Panchayat Primary Teacher (Employment and Services) Rules, 2012 Modified Rule 16 of 2014 and his claim was rejected for arrears of Honorarium payment, but his application was partly allowed and it was found that he was employed as Block Teacher at Graduate Grade in Hindi Subject

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instead of Social Science. The Tribunal further observed that the petitioner’s name has not been found in the Social Science in the list of Trained Teacher from serial no. 1 to 202, but the petitioner was selected right from the beginning for Hindi Subject on the basis of marks obtained by him and he was employed as Block Teacher, Graduate Grade in Hindi Subject and as such, the claim of the petitioner that his appoint is improper is not correct.

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It also transpires from the pleading of the petitioner that he has paid ad-interim maintenance of Rs. 3,500/- per month to the opposite party no. 2 till March, 2019 in the light of the order dated 03.05.2018 passed by the Co-ordinate Bench of this Court in ABA No. 7357 of 2019. Thus it is own admission of the petitioner that he has not paid any amount to the opposite party no. 2 since March, 2019. However, ad-interim maintenance amount of Rs. 3,500/- per month paid by the petitioner to the opposite party no. 2 is liable for adjustment in view of the order dated 11.01.2019 passed by learned Principal Judge, Family Court, Dhanbad.

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The contention of the petitioner that he is paying adinterim maintenance of Rs. 3,500/- per month to the opposite party no. 2 in light of the order dated 19.08.2019 passed in A. B. A. No. 7675 of 2018 is concerned, the same has got no relevance in this in view of the fact that the Co-ordinate Bench of this Court had made only a temporary arrangement of paying Rs. 3,500/- per month to the opposite party no. 2 and her child for their survival whereas this case has been filed on behalf of the petitioner by challenging the impugned order by which he has been directed to pay maintenance amount of Rs. 10,000/- per month to the opposite party no. 2 i.e. his wife and a sum of Rs. 3,000/- per month towards the maintenance of her minor child and any amount paid by the petitioner pursuant to the order dated 19.08.2019 passed in ABA. No. 7675 of 2018 shall be subject to adjustment in the light

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of final calculation of the arrears of the maintenance amount in question.

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It is surprising that the petitioner has not taken any steps in such A. B. A. No. 7675 of 2018, which is said to be pending before the Co-ordinate Bench of this Court till date. However, this Court is not required to go into the merit of the said A.B.A. case as it is subject matter of the Co-ordinate Bench.

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The opposite party no. 2, by filing counter affidavit, has asserted that the petitioner has not even complied with the order dated 19.08.2019 passed in ABA. No. 7675 of 2018 by which he was directed to live with this O. P. No. 2, but the petitioner failed to keep her properly with full honour and dignity and as such, she has returned to her Maike.

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From perusal of the evidence of P.W.-1-Sudha Kumari Singh enclosed with the Lower Court Records, it transpires that the petitioner was married with the opposite party no. 2 on 02.10.2015. However, she lived properly 10-15 days in her matrimonial home and she was ousted after being assaulted and tortured and she returned to her maike in February and thereafter, she again went to her matrimonial home in May and lived there for six months and she was also assaulted and ultimately she was ousted from Matrimonial Home on 09.11.2016 by her husband and since then she is living in her maike since her child was aged around 17 months. She also stated that her husband is a Government Teacher in Bihar Government and is earning Rs. 40,000/- per month whereas she has got no source of income and as such, the present case was filed. The witness was discharged after ex-party evidence.

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P.W.-2, Dulip Kumar Singh, who is the brother of the opposite party no. 2 and who has also supported the case of the O.P.No. 2 that after marriage between the petitioner and the opposite party

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no. 2 on 02.12.2015, his sister lived in matrimonial home for 15 days. Thereafter, there was demand of dowry and Car and his sister was assaulted and ousted from matrimonial home on 09.11.2016 and at that time, his sister was pregnant. He has stated that his sister is living in his house and has given birth to a child, who is aged about 19 months. It is evident that both the P.W.-1, Sudha Kumari Singh and P.W.-2, Dulip Kumar Singh were examined ex-parte and discharged without cross-examination.

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Thus P.W. 2 has also supported the case of the O.P. No. 2.

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It further transpires that for three different dates on 06.11.2017 in light of the order dated 30.06.2017, and 15.02.2018 in light of the order dated 07.02.2018 and on 23.03.2018 in light of the order dated 13.03.2018 passed by the learned Principal Judge, Family Court, Dhanbad, notices were sent upon the petitioner by the Speed Post as well as Courier and lastly it was reported by the postal peon in its service report that the petitioner has refused to accept the notice.

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Thus, the learned Court below has treated the service of notice upon the petitioner as validly served because the petitioner has refused to accept the notice, vide its order dated 16.04.2018/17/04/2018 passed by the learned Principal Judge, Family Court, Dhanbad.

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No doubt ex-parte proceeding has been held by the learned Court below in the absence of the petitioner, but this fact cannot be denied that the learned Court below has given ample opportunity to the petitioner to appear in the said Maintenance Case No. 430 of 2017, but the petitioner has failed to do so, Although the petitioner is a Government Servant and has been employed as a Teacher.

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However, so far as the quantum of maintenance amount is concerned, the same has to be decided on the basis of income of

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petitioner.

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It has been held in the case of Rajneesh Vs. Neha and Another reported in 2021 (2) SCC 324 at Para-77, 78, 79, 80, 112 and 113, which are as follows:-

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“Para- 77:- The objective of granting interim/permanent alimony is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded.

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Para- 78:- The factors which would weigh with the court inter alia are the status of the parties; reasonable needs of the wife and dependent children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a nonworking wife. [Refer to Jasbir Kaur Sehgal v. District Judge, Dehradun , (1997) 7 SCC 7; Refer to Vinny Parmvir Parmar v. Parmvir Parmar , (2011) 13 SCC 112 : (2012) 3 SCC (Civ) 290]

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Para- 79:- In Manish Jain v. Akanksha Jain [ Manish Jain v. Akanksha Jain , (2017) 15 SCC 801 : (2018) 2 SCC (Civ) 712] this Court held that the financial position of the parents of the applicant wife, would not be material while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations; the court should mould the claim for maintenance based on various factors brought before it.

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Para- 80:- On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependent family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able-bodied and has educational qualifications. [ Reema Salkan v. Sumer Singh Salkan , (2019) 12 SCC 303 : (2018) 5 SCC (Civ) 596 : (2019) 4 SCC (Cri) 339]

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Para- 112:- In Badshah v. Urmila Badshah Godse [ Badshah v. Urmila Badshah Godse , (2014) 1 SCC 188 : (2014) 1 SCC (Civ) 51] , the Supreme Court was considering the interpretation of Section 125 CrPC. The Court held : (SCC p. 196, para 13)

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“ 13.3. … purposive interpretation needs to be given to the provisions of Section 125 CrPC. While dealing with the application of a destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalised sections of the society. The purpose is to achieve “social justice” which is the constitutional vision, enshrined in the Preamble of the Constitution of India . The Preamble to the Constitution of India clearly signals that we have chosen the democratic path under the rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the courts to advance the cause of social justice. While giving interpretation to a particular provision, the court is supposed to bridge the gap between the law and society .”

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Para- 113:- It has therefore become necessary to issue directions to bring about uniformity and consistency in the orders passed by all courts, by directing that maintenance be awarded from the date on which the application was made before the court concerned. The right to claim maintenance must date back to the date of filing the application, since the period during which the maintenance proceedings remained pending is not within the control of the applicant.”

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It has been held in the case of Sunita Kachwaha and Others vs Anil Kachwaha reported in 2014 (16) SCC 715 at para 7, 8 and 10 as follows:-

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“Para-7:- Inability to maintain herself is the pre-condition for grant of maintenance to the wife. The wife must positively aver and prove that she is unable to maintain herself, in addition to the fact that her husband has sufficient means to maintain her and that he has neglected to maintain her. In her evidence, the appellant-wife has stated that only due to help of her retired parents and brothers, she is able to maintain herself and her daughters. Where the wife states that she has great hardships in maintaining herself and the daughters, while her husband’s economic condition is quite good, the wife would be entitled to maintenance.

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Para-8:- The learned counsel for the respondent submitted that the appellant-wife is well qualified, having post graduate degree

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in Geography and working as a teacher in Jabalpur and also working in Health Department. Therefore, she has income of her own and needs no financial support from respondent. In our considered view, merely because the appellant-wife is a qualified post graduate, it would not be sufficient to hold that she is in a position to maintain herself. Insofar as her employment as a teacher in Jabalpur, nothing was placed on record before the Family Court or in the High Court to prove her employment and her earnings. In any event, merely because the wife was earning something, it would not be a ground to reject her claim for maintenance.

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Para-10:-The impugned order of the High Court dated 26.06.2008 passed in Criminal Revision No. 2303/2007 is set aside and this appeal is allowed. The respondent is directed to pay the maintenance of Rs.3,000/- per month to the appellantwife as ordered by the Family Court and also pay the arrears of maintenance payable to the appellant-wife within the period of eight weeks.”

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Even in the case of Anju Garg and Anr. vs. Deepak Kumar Garg reported in 2022 Supreme (SC) 988, the Hon'ble Supreme Court has not interfered with the maintenance amount to the wife of Rs.10,000/- and it has been held in the above judgment at para-13, as follows:-

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"Para-13:-Though it was sought to be submitted by the learned counsel for the respondent, and by the respondent himself that he has no source of income as his party business has now been closed, the Court is neither impressed by nor is ready to accept such submissions. The respondent being an ablebodied, he is obliged to earn by legitimate means and maintain his wife and the minor child. Having regard to the evidence of the appellantwife before the Family Court, and having regard to the other evidence on record, the Court has no hesitation in holding that

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though the respondent had sufficient source of income and was able-bodied, had failed and neglected to maintain the appellants. Considering the totality of facts and circumstances, we deem it proper to grant maintenance allowance of Rs.10,000/- per month to the appellant-wife, over and above the maintenance allowance of Rs. 6,000/- granted by the Family Court to the appellant no.2son."

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A counter affidavit has been filed on behalf of the opposite party no. 2 in which pay slip of the petitioner has been enclosed as Annexure- D, which is Pay Fixation Slip under Resolution No.-1157 dated 29.08.2020 and Notification No. 1816 dated 12.11.2021 issued by the Education Department, Bihar, Patna, which reveals that basic pay of the petitioner revised basic pay of the petitioner is on 01.04.2021 is Rs. 25,330/- and revised basic pay is Rs. 26,100/- on 01.01.2022 respectively.

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Chart of the gross salary of the petitioner from April, 2021 is shown as Rs. 29,549/- in April, 2021 and Rs. 35,216/- in February, 2022.

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It is well settled that the petitioner cannot pay excessive maintenance amount as learned Court below has not tried to get income of the petitioner by marking his pay slip as exhibits, rather quantum has been decided merely on the oral evidence of the witnesses, who have stated that the petitioner is a Government Servant and is earning Rs. 40,000/- per month as P.W.-1-Sudha Kumari Singh has stated that the petitioner is earning Rs. 40,000/whereas P.W.-2, Dulip Kumar Singh has stated that the petitioner is getting Rs. 20,000/- per month as salary and Rs. 10,000/- by tution.

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Therefore, it is evident that the learned Court below was not justified in giving higher maintenance amount.

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No doubt amount of Rs. 10,000/- per month to the wife

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and Rs. 3,000/- per month to the minor son granted by the learned Court below is not so excessive, but payment has to be decided on the basis of income of the petitioner, who is the husband of the opposite party no. 2. Even according to the opposite party no. 2, gross salary of the petitioner is Rs. 29,649/- in April, 2021 and Rs. 35,216/- in February, 2022 and after statutory deduction, the petitioner has got Rs. 25884/- in April, 2021 and Rs. 28927/- in February, 2022 and hence, the amount of Rs. 10,000/- per month to the wife and Rs. 3,000/- per month to the minor son total Rs. 13,000/- appears to be excessive.

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It has been held in the case of Kalyan Dey Chowdhury Verus Rita Dey Chowdhury Nee Nandy reported in 2017 (14) SCC 200, maintenance amount can be fixed maximum 25 % of the salary of the husband.

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Therefore, maintenance amount of Rs. 10,000/- to the O. P. No. 2 i.e. the wife is modified to the extent that the petitioner is liable to pay Rs. 6,000/- per month to his wife i.e. opposite party no. 2 and however, so far as payment of Rs. 3,000/- per month to the minor son is concerned, the same is upheld as the son of the opposite party no. 2 is a school going child and he also needs greater care in his education for his better development and hence Rs. 3,000/- per month to the minor son is not excessive and it is upheld.

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It is further directed that amount paid by the petitioner in light of the order dated 03.05.2018 passed in A. B. A. No. 7357 of 2017 and the order dated 19.08.2019 and 08.01.2020 passed in ABA. No. 7675 of 2018 shall be liable for adjustment after making proper calculation by the learned Principal Judge, Family Court, Dhanbad and the petitioner is directed to pay remaining balance amount towards the arrears of the maintenance amount after adjusting the total amount paid by him in light of the orders

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passed by the Co-ordinate Bench of this Court in ABA. No. 7357 of 2017 and ABA. No. 7675 of 2018. The arrears must be paid within four months from the date of receipt of a copy of this order. 35. Thus, the Criminal Revision No. 468 of 2019 is allowed in part with the modification in the maintenance amount and with the observation and direction mentioned above.

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(Sanjay Prasad, J.)

¶97

Kamlesh/

Niranjan Singh Alias Niranjan Kumar v. the State of Jharkhand

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Niranjan Singh Alias Niranjan Kumar v. the State of Jharkhand

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