Crl. Revision No. 3086 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Revision No. 3086 of 2009 (O&M) Date of decision:- 06.09.2011 Smt. Bimal ....Petitioner Vs. Kapil Kumar ....Respondent CORAM: HON'BLE MR. JUSTICE A.N. JINDAL Present:- Mr. R.S. Sihota, Senior Advocate, with Mr. Ashok Sharma, Advocate, and Mr. B.R. Rana, Advocate, for the petitioner. Mr. A.S. Jattana, Advocate, and Mr. Harvinder Singh, Advocate, for the respondent. ***** A.N. JINDAL, J (ORAL) This petition is for enhancement of maintenance, preferred against the judgment dated 28.08.2009 passed by the District Judge, Family Court, Faridabad, fixing the maintenance of the petitioner to the tune of Rs.2500/- per month not with effect from the date of application, but from 01.01.2006. In short, the facts are that Bimal-petitioner was married to the respondent on 15.05.1994, but unfortunately she could not conceive. Lot of money was spent by the parents of the petitioner and they also met with the demands of the respondent but he was not satisfied. She was harassed, maltreated and physically Crl. Revision No. 3086 of 2009 (O&M) 2 assaulted by the respondent, but she continued tolerating the atrocities committed upon her by the respondent. Ultimately, she was turned out of the matrimonial home on 25.05.1999. Petitioner had also filed a criminal complaint; lodged an FIR No.205 dated 01.06.1999 under Sections 498-A, 406 IPC and had also filed a divorce petition against the petitioner. While claiming maintenance, she submitted that she being unable to maintain herself, deserves to be maintained by the respondent. The respondent is a Constable in Delhi police and was fetching a salary of Rs.9000/-, as on 05.09.2001 i.e. the date of filing of the petition and now he has monthly salary of Rs.19291/-. The petition was contested by the respondent, wherein he denied all the allegations and submitted that the petitioner was living separate without any reasonable cause and excuse, as such, she is not entitled to any kind of maintenance. As regards his income, he has stated that he was earning only Rs.4000/- per month, whereas the petitioner herself was also earning Rs.3000/- per month by stitching clothes etc. In support of her allegations, the petitioner examined ASI Suresh Chand, Accounts Branch (PW-1), in order to prove that the respondent was a Constable in 3rd Battalion, Vikaspuri, New Delhi. Similarly, Constable Narender Kumar, Accounts Clerk (PW-2) has also proved this fact. The petitioner herself appeared as PW-3. To the contrary, the respondent did not appear in the witness box to rebut the allegations levelled against him. However, his father Ram Gopal appeared as RW-1 to support the case of the respondent. Crl. Revision No. 3086 of 2009 (O&M) 3 After hearing the parties, the trial Court while holding that the respondent was having salary of Rs.9069/- and carry home salary as Rs.6991/- at the time of filing the petition, the petitioner was granted maintenance at the rate of Rs.1000/- per month up till December, 2005 i.e. period prior to the revised pay grades. Since the grades were revised on 01.01.2006, therefore, she was held entitled to Rs.2500/- per month as maintenance with effect from 01.01.2006 onwards. Still dissatisfied, the petitioner has come up in revision for enhancement of the maintenance. Undisputedly, the petitioner is legally wedded wife of the respondent. There is also no dispute that at the time when the petition was filed, a divorce petition was pending, but later on the respondent succeeded in getting the divorce. It has also not been disputed that a divorced wife is also entitled to maintenance. The basic dispute in the case appears to be that since after the marriage i.e. 15.05.1994, she could not conceive, therefore, the respondent sought divorce and ultimately he succeeded in doing so. Learned counsel for the respondent has also stated at bar that the respondent has now married and is having two children. But, at the same time, it cannot be disputed that the petitioner being a housewife unable to maintain herself, is bound to be maintained by the respondent. Now coming to the quantum of maintenance, it is not disputed that the respondent is a Constable in Delhi police. As per salary certificate, Ex.PW1/A produced earlier for the month of March, 2005, the salary of the respondent is shown as Rs.9069/- and carry home salary was Rs.6991/-. It has also not been disputed that now after 01.01.2006, the respondent is fetching a Crl. Revision No. 3086 of 2009 (O&M) 4 salary of Rs.19,291/- and his carry home salary is Rs.14,751/- per month. In order to find out as to what is the income of the respondent, the Court is not to go by the carry home salary. If the respondent, in order to get rid of the maintenance, takes loan and allows more than half of his salary to be exhausted in payment of installments, then that will frustrate the real object of assessing the income. But, it is the gross salary which is to be seen for assessing the maintenance. Sometimes, methods are derived to reduce the carry home salary. As such, the Family Court appears to have fallen in error while awarding maintenance on the basis of carry home salary. This Court also cannot lose sight of the fact that the petitioner being a deserted wife, could not pull on her life with a sum of Rs.1000/- or even Rs.2500/- per month as awarded by the trial Court with effect from 01.01.2006. It is not the fault of the petitioner that her application remained pending for 8 years. The trial Court has also not ignored this fact that the petitioner is entitled to be maintained as per financial status equivalent to that of the respondent considering his financial capacity and capability. But, the Court did not consider, as to whether the petitioner could live with the status equivalent to that of the respondent with a meager sum of Rs.1000/- or Rs.2500/- in these days of hiking prices. If we pose this question to ourselves, then the prudent mind would say, “certainly not.” Resultantly, taking view of the present day prices; the living conditions of the petitioner; the status of the respondent and his other dependents, maintenance for a sum of Rs.4000/- per month to be paid to the petitioner would not be inappropriate or on the higher side. Crl. Revision No. 3086 of 2009 (O&M) 5 For the aforesaid reasons, this petition is accepted; the impugned order is modified and the respondent is directed to pay a sum of Rs.4000/- per month as maintenance to the petitioner from the date of the application. (A.N.JINDAL) 06.09.2011 JUDGE ajp