Sunday, 3 March 2019

Whether husband is liable to pay increased maintenance to son after paying permanent alimony to wife?

To make a brief of the matter it can be seen from the record that owing to the marital dispute between the parties, there was divorce in between them as on 03.10.2013, as per order and decree in F.C. (Civil) No. 473/2008, under Section 13 of the Hindu Marriage Act. The present petitioner paid Rs. 5 lacs to the respondent as a permanent alimony. At the relevant point of time, there was another petition pending before the same Family Court praying for maintenance for the respondent/wife as well as her minor son which was also disposed of on 10.09.2013, in F.C. (Crl.) No. 22/2009 (prior to disposal of the divorce case), where in the learned Trial Court grant the maintenance of Rs. 2500/- to the wife and Rs. 2000/- to the minor child of the parties, by its order.

4. After the divorce was affected between the parties and the respondent/wife was granted the permanent alimony, so the respondent/wife come forward with a petition under Section 127 of the CrPC, praying for enhancement of the maintenance allowance to the minor child. The learned Trial Court upon adjudicating the matter and considering the necessity of the child and the income of the petitioner, directed the present petitioner to pay a sum of Rs. 5000/- per month by the order dated 14.02.2017.
Now in the context of liability, the maintenance always carries the meaning that it should be adequate to the needs of a person and according to the status and income of the person concerned. The child of the petitioner who was enrolled in an English Medium school cannot be stopped to carry on such education by showing inability by his parents. It is the bounded duty of a father to upbringing the child in a befitting manner without hindering his mental health as well as physical one. If the father denies such required amount, it will be nothing but denial of such mandatory requirement of a child for proper upbringing. Having a total salary of Rs. 61,138/- and even after deduction on various count, still the petitioner has sufficient income to provide maintenance to his child, as has been granted by the trial Court.

IN THE HIGH COURT OF GAUHATI

Crl. Rev. P. 78/2017

Decided On: 22.01.2019

Rupak Chowdhury Vs.  The State of Assam and Ors.

Hon'ble Judges/Coram:
Rumi Kumari Phukan, J.




1. Heard Mr. K.M. Haloi, learned counsel for the revision petitioner. Also heard Mr. K. Bhattacharjee, learned counsel appearing for and on behalf of the respondent No. 2.

2. The present revision petition has been preferred against the order dated 14.02.2017, passed by the learned Principal Judge, Family Court No. 1, Kamrup at Guwahati, in Misc. Case No. 378/2016, whereby the monthly maintenance to the son of the petitioner has been enhanced from Rs. 2000/- to Rs. 5000/-.

3. To make a brief of the matter it can be seen from the record that owing to the marital dispute between the parties, there was divorce in between them as on 03.10.2013, as per order and decree in F.C. (Civil) No. 473/2008, under Section 13 of the Hindu Marriage Act. The present petitioner paid Rs. 5 lacs to the respondent as a permanent alimony. At the relevant point of time, there was another petition pending before the same Family Court praying for maintenance for the respondent/wife as well as her minor son which was also disposed of on 10.09.2013, in F.C. (Crl.) No. 22/2009 (prior to disposal of the divorce case), where in the learned Trial Court grant the maintenance of Rs. 2500/- to the wife and Rs. 2000/- to the minor child of the parties, by its order.

4. After the divorce was affected between the parties and the respondent/wife was granted the permanent alimony, so the respondent/wife come forward with a petition under Section 127 of the CrPC, praying for enhancement of the maintenance allowance to the minor child. The learned Trial Court upon adjudicating the matter and considering the necessity of the child and the income of the petitioner, directed the present petitioner to pay a sum of Rs. 5000/- per month by the order dated 14.02.2017.

5. The present revision has been preferred to challenge the aforesaid findings of the Court, raising grievances that such an enhancement is 300% more than the earlier which is on the higher side and the petitioner has other liabilities to discharge. It is contended that the petitioner has his old ailing mother and one unmarried sister whom he has to maintain and that apart he has to pay EMI against the loan that was taken to pay Rs. 5 lacs towards the permanent alimony to the respondent/wife. Accordingly it has been submitted that such an enhancement is bad in law and liable to be interfered. However he is ready to pay the maintenance @ Rs. 4,000/- per month, for the sake of the child.

6. The learned counsel for the respondent/wife however contended that such an objection raised by the petitioner towards the maintenance of the child is not maintainable as because he being the father has failed to discharge his liability in proper manner and the respondent/wife is to incur lots of expenses while upbringing the child who is a student of Class-III and has to bear much expenses towards the education like quarterly fees, uniforms, annual fees, school bus fare @ Rs. 1200/- per month and other miscellaneous expenses apart from fooding and lodging etc.

7. The learned counsel for the petitioner has filed an additional affidavit to brought on record the current pay slip and also averred in his affidavit that due to taking of the personal loan from the Bank, he has to pay EMI of Rs. 14,777/- and he has already paid Rs. 5 lacs to the respondent/wife as permanent alimony and as such he is facing financial crisis. He has also mentioned about his liability to be incurred towards his old mother and the unmarried sister.

8. The learned counsel for the respondent has however rebutted such statement of the learned counsel for the petitioner that there is no such financial burden on the part of the petitioner towards his mother as she is getting monthly pension of Rs. 2,000/- per month and the petitioner should not be hesitant to provide adequate maintenance to his child which is a paramount duty of a father.

9. Due consideration has been given to the submission so made by the parties and also the documents so annexed. Admittedly the marriage between the parties have already dissolved and the child is with his mother who has to bear all the expenses of the child apart from fooding, lodging and education, who is reading in an English Medium school wherein the tuition fees, expenses of school bus, etc. are always on a higher side.

10. As we find from the impugned judgment and order on record that the initial maintenance granted to the child was Rs. 2000/- per month vide order passed in F.C. (Crl.) No. 22/2009, on 10.09.2013, while the petitioner used to draw salary of Rs. 15,700/- Approximately ). At the time of enhancement of the maintenance for the child on 14.02.2017, the income of the petitioner was Rs. 38,234/-, as on November, 2016, which is now under challenge.

11. In view of the challenge made by the petitioner to the enhanced maintenance to the child, this Court directed the petitioner to produce his current salary slip. Accordingly now the same has been produced by way of an affidavit, which pertains to December, 2018. On perusal of the same, it reflects that as on December, 2018, the gross salary of the petitioner is Rs. 61,138/- and after deduction, his net salary is Rs. 55,730/-. Although he has stated about the Bank loan but the same is not reflected in the pay slip and in this regard it is submitted by the learned counsel for the petitioner that the said deduction is not made from his salary. Even if the EMI of Rs. 14,777/- is taken into account, still the petitioner has net income of more than Rs. 40,000/-. As has been stated, the petitioner has no exclusive liability towards his mother because she is already getting an amount of Rs. 2,000/- as pension.

12. Now in the context of liability, the maintenance always carries the meaning that it should be adequate to the needs of a person and according to the status and income of the person concerned. The child of the petitioner who was enrolled in an English Medium school cannot be stopped to carry on such education by showing inability by his parents. It is the bounded duty of a father to upbringing the child in a befitting manner without hindering his mental health as well as physical one. If the father denies such required amount, it will be nothing but denial of such mandatory requirement of a child for proper upbringing. Having a total salary of Rs. 61,138/- and even after deduction on various count, still the petitioner has sufficient income to provide maintenance to his child, as has been granted by the trial Court.

13. The Revision Court can only interfere if the said findings of the trial Court is perverse and without any basis and/or without any appreciation of the subject matter before the Court.

14. As has been discussed above, the learned trial Court at the time of fixing the maintenance and also at the time of enhancement has taken note of all the necessary facts and income of the petitioner while arrived at the decision and the same is neither luxurious nor excessive but it is sufficient and adequate to meet the requirement of the child.

15. In the opinion of this Court, there is no irregularity or illegality in the order so passed by the learned trial Court and accordingly the same is affirmed.

16. In this context, the enhanced amount has been written in words as Rupees five thousand although in figure it has been mentioned as Rs. 5,500/- (rupees five thousand five hundred). Accordingly, it is directed that the petitioner will pay Rs. 5,000/- (Rupees five thousand) as monthly maintenance, as directed by the learned trial Court.

17. The revision stands disposed of accordingly.


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