CM(M) No.1169/2008 Page 1 of 6 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CM(M) No.1169/2008 & CM No.14626/2008 Date of Decision: August 13, 2010 YOGENDER SINGH GAHLOT ..... Petitioner Through: Mr. Suresh Sharma, Adv. versus SUMAN GAHLOT ..... Respondent Through: Mr. R.P. Kaushik, Adv. with Respondent in person. % CORAM: HON’BLE MS. JUSTICE ARUNA SURESH (1) Whether reporters of local paper may be allowed to see the judgment? (2) To be referred to the reporter or not? Yes (3) Whether the judgment should be reported in the Digest ? Yes J U D G M E N T ARUNA SURESH, J. 1. Parties to the petition were married according to Hindu Rites and Customs on 27.11.1995. Two children were born out of the wedlock of the parties. Parties started living separately because of disputes and differences. Since third week of May 2007 the children are in the custody of their mother. CM(M) No.1169/2008 Page 2 of 6 2. Petitioner has filed a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act (hereinafter referred to as „H.M.Act‟). In the said petition, Respondent filed an application under Section 24 of the H.M.Act. The Trial Court vide impugned order dated 25.08.2008 was pleased to award maintenance @ Rs.3,500/- to the wife and sum of Rs.1,000/- per month to each of the children for their household expenses from the date of the filing of the application till the disposal of the case. This order was passed keeping in consideration the fact that Petitioner is paying school fee of both the children and also the rent of Rs.3,200/- per month for the premises which he has taken on lease for his residence and for the residence of his wife and children, wherein Respondent and the children are still residing. Aggrieved by the said order of the trial Court, petitioner has filed this petition. 3. It was submitted by the petitioner that the Trial Court has fixed maintenance on the higher side and failed to appreciate that he is bearing the educational expenses of the children and also that he is paying rent for the premises in which CM(M) No.1169/2008 Page 3 of 6 Respondent and children are residing. He is working as a Junior Warrant Officer in Air Force and posted at Jorhat, Assam. He gets only a sum of Rs.25,000/- per month and his cash-in-hand salary is only about Rs.12,607/- after compulsory deductions of Rs.1898/- towards P.A. and income tax. He is also paying Rs.3,784/- for repayment of the loan amount. According to him, Respondent is self employed and is running a beauty parlour and earning about Rs.15,000/- per month. Petitioner, therefore, is ready and willing to pay maintenance for the children only, besides their educational expenses which he is already incurring. 4. Mr. R.P. Kaushik, learned counsel for the Respondent has submitted that Respondent is not running any Beauty Parlour and has no independent income of her own. Therefore, the Trial Court rightly awarded maintenance @ Rs.3,500/- per month besides Rs.1,000/- per month to each of the children. 5. During the course of arguments, Petitioner was asked to produce his salary slip for the month of November, 2009. Despite the fact that enough opportunity has been given to the CM(M) No.1169/2008 Page 4 of 6 Petitioner to do the needful, he has failed to place Salary Certificate / Salary Slip for the month of November, 2009 or for any other month thereafter. 6. The Court took into consideration the salary of the petitioner in the year 2007 at the time when the said application was decided. Over a period of two years, salary of the petitioner must have increased by way of increments, or on revision of pay, if any. At the same time day to day life has become expensive and the prices for vegetables, fruits and other necessary household items have increased tremendously. Therefore, maintenance awarded by the Trial court cannot be considered to be on the higher side. 7. Petitioner has claimed that there are various deductions which are made from his salary and his carry home salary is meager. From the said carry home salary, he finds it difficult to pay maintenance as awarded to the Respondent and the children. The Court has to keep in mind consider the compulsory deductions required to be made from the salary of the employee while considering the income of the Petitioner. CM(M) No.1169/2008 Page 5 of 6 Any other voluntary deductions in no manner can be weighed by the Court for assessing his income. Compulsory deductions are towards P.A. and Income tax, besides Group Insurances of Rs.7,000/- per month. 8. The Trial Court rightly assessed the income of the petitioner in para 9 of its order as below:- “9. After going through the salary slip and reducing the necessary expenses I came to the conclusion that compulsory deduction are of Rs.1898/- per month and further he is paying around Rs.10,000/- P.A. as income tax, which came to Rs.900/- per month, which is liable to be deducted from his salary. As far as PF refund of Rs.2000/- and the loan amount of Rs.3784/- which he is paying, in my opinion both parties are liable to share the burden of this loan. Hence, in my opinion ½ of the said loan amount & PF advance be reduced from the gross income of non-applicant. Hence, the net salary of the petitioner came to Rs.12,607/-.” 9. Trial Court did take into consideration the deductions to which petitioner is entitled to be considered for the purposes of ascertaining his net pay. To avoid payment of maintenance, petitioner could get any deductions made from his salary, but then these deductions are not material. The Trial Court imposed 50% liability on the Respondent also for CM(M) No.1169/2008 Page 6 of 6 repayment of the loan amount of Rs.3784/- while considering the quantum of maintenance which has been awarded to the Respondent. 10. Under these circumstances, I find no merits in the petition, the same is accordingly dismissed. 11. Vide order dated 16th October, 2008, this Court had reduced the maintenance payable to the wife and the children from Rs.5,500/- to Rs.3,000/- per month. This was without prejudice to the rights of the parties on merits. Hence, Petitioner is directed to clear the arrears of maintenance which have become due and are payable by him to the Respondent wife within four months from today. ARUNA SURESH (JUDGE) AUGUST 13, 2010 vk