IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.469 of 2008 PALLAB KUMAR AGRAWAL @ PALLAB AGRAWAL Versus SANGITA KUMARI ----------- 3 26/9/2008 Heard counsel for the petitioner and counsel for the opposite party. Reference may be made to the earlier order of this Court dated 15.9.2008, relevant portion whereof reads as follows : - "Counsel for the petitioner while seeking protection under Section 36 of the Indian Divorce Act would contend that the impugned order directing him to pay a sum of Rs. 4,000/- for the wife would be wholly against the spirit of Section 36 of the Indian Divorce Act which lays down that only 1/5th of the net income cold be payable as alimony pendentelite. Counsel for the petitioner however, is not in a position to say that as to how much is the current salary of the petitioner and what is his total emoluments that he has drawn in last three years. Under such circumstances, the petitioner is directed to produce a duly authenticated statement issued by the Head of the Department of the Gramin Bank showing the entire salary computation of the petitioner for the period of last three years as well as his current salary slip of the month of September, 2008." Today when Mr. Ashok Priyadarshi, counsel for the petitioner, has filed supplementary affidavit he would be first 2 apologetic for his incorrect stand taken by him on the last occasion with regard to restriction in section 36 of the Indian Divorce Act stating that only 1/5th amount is admissible for payment by the husband. Section 36 of the Indian Divorce Act has infact been already amended in 2001 and such restriction of 1/5th has been done away. Counsel for the petitioner would, however, submit that from the latest salary statement of the petitioner it would transpire that the gross salary of the petitioner working as Manager in Bihar Kshetriya Gramin Bank in JMG Scale-1, is Rs. 29,138.98 paise and out of the that salary deductions is to the tune of Rs. 9312.40 paise. In the said deduction there is also mention for house building loan, Festival Advance, interest on the over draft, which however cannot be taken to be statutory deductions. Statutory deductions, at best, can be Income-tax, amount of provident Fund, group insurance, union subscription, which would in the case of the petitioner total to a sum of 3 Rs. 3,000/- approximately and that would mean that the net salary of the petitioner is Rs. 26,000/- per month approximately. To make this thing clear, salary statement filed by the petitioner dated 22.9.2008 is reproduced hereinbelow:- Salary Deductions. Rs. Paise Rs. Paise. Basic 19920-00 P.F 780-00 D.A. 7924-18 Incom.Tax2000-00 H.R.A. 1294-80 F.A. 1000-00 ---------- H.B.L. 1150-00 Total 29138-98 Veh.Loan 1650-00 Group.Ins. 159-00 Union Sub. 15-00 Intt. On O.D. 2558-00 ---------- Total:- 9312-00 Now a question would arise that when from salary income of Rs. 26,000/- approximately four persons have namely, the petitioner, his wife, wife-opposite party, the son living with the wife- opposite party and the daughter living with the husband, petitioner have to be maintained, how much amount would be sufficient for the wife-opposite party and the son living with her for their sustainence and living with dignity. 4 Counsel appearing on behalf of the opposite party in this context has relied on a judgment of the Delhi High Court in the case of Annurita Vohra Vs. Sandeep Vohra reported in I (2004) Divorce & Matrimonial Cases 568, where the said Court had found out a practical solution for fixing the amount of maintenance by holding that such income should be divided into equal parts out of which two parts thereof should be given to the husband and the remaining part should be equally distributed to the dependants, family members. Counsel for the opposite party therefore would contend that the amount of Rs. 26,000/- should be divided into five parts, out of which two parts should be left for husband, one for the daughter living with him and remaining two shares one each for the wife and the son. He would thus calculate that a sum of Rs. 5,200/- being one part, the husband would be entitled to retain Rs. 15,600/- and leave the balance amount i.e, Rs. 10,400/- for maintenance of the wife and son who is living with her. 5 Counsel appearing on behalf of the petitioner would contend that this cannot be a fixed formula which can be made applicable in all cases. He would contend that the husband has to meet additional expenses of payment of house rent. He would further contend that he has to meet expenses not only for establishment but also on the educational expenses towards education of his daughter. Considering the aforementioned submission, this Court is of the view that when the court below has given only a sum of Rs. 4,000/- for the wife and Rs. 2,000/- for the son, the same is definitely within the paying capacity of the husband-petitioner. Accordingly, while this Court would not interfere with the impugned order and leave the parties on their present shape and conditions whereby and whereunder the petitioner in terms of the impugned order is required to pay a sum of Rs. 6,000/- per month as per the impugned order. 6 That being so, this Court would not find any reason to interfere with the impugned order and accordingly, this application is dismissed with a direction to the petitioner that if he has not already paid the entire arrears amount of maintenance in terms of the impugned order he would definitely do so within a period of three months from the date of receipt/production of a copy of this order failing which the opposite party shall have the liberty to move this Court for the violation of this order of the Court. It also goes without saying that the petitioner shall keep on paying the current amount from the months of October 2008 onwards positively and punctually by every 10th of the respective months. ( Mihir Kumar Jha, J.) Abhay Kumar