IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.407 of 2004 Shyam Chandra Verma @ Shayam Chand Prasad @ Shyam Chandra Prasad, son of Late Ram Dhani Sao, resident of Mohalla-Shankarbar Tola, P.S. Mokama, District-Patna, at present posted as teacher, Girls High School, Jhajha, District-Jamui……………Opp. Party/Appellant. Versus Smt. Sabitri Kumari, @ Shavitri Devi wife of Shaym Chandra Verma, daughter of Late Ramashish Poddar, resident of Nai Saraka Chowk, P.S.-Chowk, District-Patna……………................Plaintiff/Respondent. For the appellant : Mr. Shambhu Saran Singh, Adv. For the respondent : Mr. Hare Ram Sah, Adv. ---------- 12. 16.9.2011 Heard the parties. 2. This appeal has been preferred by the appellant against an order of Additional Principal Judge, Family Court of Patna in Matrimonial Suit No. 207 of 1999 passed on 16.8.2004 whereby Rs. 2500/- per month has been allowed as permanent alimony in favour of the sole respondent who is divorced wife of the appellant. The records of this appeal show that before the notices could be served on the respondent, she appeared through her counsel on 17.8.2006. A memo of cross appeal was filed on her behalf on an earlier date 27.4.2006. In the memo of cross appeal the respondent has prayed for enhancing the monthly alimony to Rs. 6000/- per month. On behalf of respondent an interlocutory 2 application was filed bearing I.A. No. 5155/2007 which was dismissed for default in appearance on 6.5.2008. Again another I.A. was filed on 25.7.2008 bearing I.A. No. 4360 of 2008. The said I.A. is still pending and it shows that several documents of later period such as Income Tax Return of the appellant and affidavit before the Family Court as well as salary chart of the appellant have been brought on record for making a prayer to enhance the alimony to Rs. 12,000/- per month. 3. After hearing the parties, we find that it would not be proper for us to enter into documents introduced before us for the first time through I.A. No. 4360 of 2008 and to exercise original power of re-determining the alimony. Hence, I.A. No.4360 of 2008 is disposed of with liberty to the respondent to approach the concerned Family Court for appropriate relief on the basis of subsequent facts or developments. If such application is pending or filed, the same shall be considered and disposed of expeditiously in accordance with law. 4. We are confining our discussion to the merit of the order passed by the Family Court which is subject matter 3 of appeal and cross appeal. It may be indicated at the outset that learned counsel for the appellant raised an objection that counter appeal which is provided under the C.P.C. particularly order 41 should not be entertained because it is not maintainable. He further submitted that appeal under Section 19 of the Family Courts Act, 1984 is provided only against judgment and order of the Family Court whereas Order 41 deals with appeals preferred against judgment and decree of a Civil Court. 5.We find no merit in this objection because even if the judgment and order of the Family Court is not treated as a decree, the Miscellaneous Appeal which is being heard will be governed by provisions of Order 43 of the C.P.C. which inter alia adopts the procedure generally provided for disposal of appeals under Order 41 of the C.P.C. For this conclusion a perusal of Order 43 Rule-2 would be sufficient. It may also be pointed out that under Section 10 of the Family Courts Act, the provisions of the Code of Civil Procedure and of any law for time being in force have been made applicable to Suit and proceedings before the Family Court subject to the provisions of the Family Courts Act and the Rules made thereunder. 4 Appeal is admittedly a continuance of the proceeding before the Family Court and hence, provisions of C.P.C. are not excluded from proceedings or Suits before the Family Court or in respect of appeals arising from the judgment and orders of the Family Court. 6. On merits, learned counsel for the appellant fairly submitted that views of the Family Court do not suffer from any such illegality or error so as to warrant any interference and, therefore, the alimony of Rs. 2500/- per month fixed by the order under appeal may be maintained by this Court. On the other hand, learned counsel for the respondent took us to the facts to show that even if the appellant is allowed to retain 2/3rd of his monthly income and pay to the respondent only 1/3rd for maintenance by way of alimony, the calculation made by the Court below suffers from apparent error in view of income or salary certificate of the appellant issued by the Headmaster of the School where the appellant is an Assistant Teacher. That certificate dated 3.4.2004 is available as Annexure-1 to the memo of cross appeal. The Family Court has relied upon that certificate and it is not in dispute. The certificate shows that the appellant in 5 the month of February, 2004 was getting total monthly salary of Rs. 12532/-. Out of this, deductions were being made towards G.P.F. of Rs. 477/- , towards General Insurance of Rs. 60/- and a total deduction of Rs. 2229/- towards Income Tax. The net payable in the month of February was Rs. 9766/- . On that basis, the Court below allowed alimony at the rate of Rs. 2500/- per month. 7. Normally, the Rule of 1/3rd and 2/3rd should have been applied by the Court below but considering the other liabilities such as that of old mother and widow sister, some minor favour was shown to the appellant. Even if that is accepted, as per submissions advanced on behalf of the respondent, the Income Tax deduction of Rs. 2229/- was clearly deduction for the whole year because by no reasonable basis income tax deduction would come to that much against a monthly income of Rs. 12532/-. The certificate issued in February relates to payments in the month of February 2004, but clearly the Income Tax deduction for the whole year appears to have been made prior to the month of March. Hence, approximately Rs. 2000/- has been wrongly ignored from the receivable income of the appellant on account of 6 accepting the entire Income Tax deduction as deduction for a particular month. From the discussion made in paragraph 9 of the judgment under appeal it has been shown that Rs. 2000/- has been deducted from the income of the appellant because he claimed that he was paying house rent for himself at the rate of Rs. 2000/- per month. Learned counsel for the respondent has submitted that the appellant has his own house and, therefore, he should not have made a claim that he was paying Rs. 2000/- per month as rent. This submission has been disputed by learned counsel for the appellant and, therefore, we have not entered into merits of the aforesaid submissions. However, another submission on behalf of the respondent is that even if the appellant was paying Rs. 2000/- or any other sum for himself by way of rental, the same could not have been deducted from his monthly income and, therefore, the amount of monthly alimony determined by the court below requires to be re-determined by including Rs. 2000/- shown as expenses on rent towards the monthly income of the appellant. 8. We find merit in both submissions on behalf of the respondent that only about Rs. 200/- should have been 7 excluded towards payment of Income Tax per month and claim of payment of rent should not have led to any deduction from the monthly income of the appellant available to him for meeting his expenses. As a result, a further sum of Rs. 4000/- per month becomes available for division and consequent enhancement of the alimony granted to the respondent by proportionate distribution in the ratio of 2/3rd and 1/3rd . Allowing 1/3rd of Rs. 4000/- as further alimony to the respondent, it is held that she ought to have been allowed Rs. 2500 + 1/3rd of Rs. 4000/- which comes to Rs. 3,833/- per month. We make this a round figure of Rs. 3,800/- per month. In view of the aforesaid discussion, the order under appeal is modified in favour of the respondent on the basis of her cross appeal and her permanent alimony is fixed at the rate of Rs. 3,800/- per month in place of Rs. 2500/- per month. The same with consequent arrears should be paid expeditiously to her within a period of three months. In case respondent has to file execution proceeding, it is expected that such proceeding shall be expedited and concluded as early as possible, preferably within four months. 9. To this extent, the cross appeal is allowed 8 whereas the appeal itself stands dismissed. There shall be no order as to costs. 10. We further clarify that in case arrears, if any, of the permanent alimony are not paid within three months, the learned Court below shall be at liberty to order for interest on such arrears at a rate up to 10% per annum. 11. The interim order in favour of the appellant shall stands vacated. Mkc/ (Shiva Kirti Singh, J.) Shivaji Pandey, J.)