IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.280 of 2008 RAM PRATAP SINGH Versus SMT.VIJAYA DEVI ----------- 3 12/9/2008 Heard counsel for the petitioner. The impugned order granting Rs. 2,000/- per month by way of maintenance under section 125 of the Code of Criminal Procedure has been assailed by the counsel for the petitioner on two grounds, namely:- (I) When the take home amount of monthly pension of the petitioner was Rs. 1370/- per month plus dearness relief payable thereon, he could not be to pay Rs. 2,000/- per month; (II) There being no material on record to show any wilful negligence of the petitioner towards his wife-applicant in the maintenance case and the opposite party in the present case, the court below has committed an error in holding that the wife is entitled for payment of maintenance. 2 The first submission would be on the quantum of maintenance. The court below has gone into at a great length with regard to the income of the petitioner and it has found that the petitioner had been paid substantial amount by way of retirement benefit including commutation of pension and gratuity. It has further taken into account that the amount of pension of Rs. 1370/- per month plus dearness relief thereon, thereon was only part of his pension. It has also come to a finding that the petitioner has also income from the agricultural source and for this purpose the Court below has placed reliance on the oral evidence including that of the petitioner himself where in he had admitted income from agricultural source out of 7 to 8 bighas of land owned by him. The concept of take home salary or pension also has always been computed on the basis of statutory deductions, i.e. contribution of 8.33% towards G.P.F and certain amount towards group insurance as also the amount of income-tax. These are 3 only known to be the statutory deductions, but if the person being paid salary chooses to make contribution of any amount beyond 8.33% in his provident fund, that is his savings and that cannot be said to be take home salary. Similarly, when the petitioner had sold his 1/3rd pension by way of commutation and got consolidated amount, he cannot take a plea of take home amount of pension which is liable to be taken into consideration for fixation of amount of maintenance must be the actual amount of monthly pension. Judged in this background when the court below has found that a sum of Rupees two lacs was paid to the petitioner only on the head of gratuity and commutation, this Court taking into account the monthly pension of Rs. 1370/- per month and the dearness allowance paid thereon would hold that the total income from pension of the petitioner is itself sufficient to pay the amount of maintenance of Rs. 2000/- per month. The petitioner, infact has successfully evaded to answer his real 4 income a fact which was within his special knowledge and thus liable to be explained by him in terms of section 106 of the Evidence Act. From the entire reading of his statement before the court below it can be found that he has never disclosed as to what was his real income even after retirement and has disclosed only that his pension after commutation comes to Rs. 1370/- plus dearness allowances payable thereon. It is, thus, becomes clear that the petitioner has not given true picture of his income and therefore, this Court would not find the amount of Rs. 2,000/- per month maintenance in favour of wife to be excessive specially when it has also come on record that the petitioner is not only having 8 bighas of agricultural land but also a house which he could gift or donate to his sister-in-law. Coming to the issue of negligence, this Court would find it has come in evidence that from the marriage there was a son and two daughters and yet he was lavishly providing gift, on account of some closeness or intimacy between him and 5 his sister-in-law ( Bhabhi), and when the wife opposite party had found that the petitioner despite having three children and wife ( applicant) dependent solely on him had gone to donate or gift the house constructed from his income to his Bhabhi without providing sufficient funds and means for the wife children she had every reason to feel neglected and offended. In normal family atmosphere when the husband looks for any other women in preference to his wife, it cannot be said that he has not neglected his wife. The evidence on this score as discussed in the impugned order would go to show that the wife has every reason to live separately and claim maintenance. Therefore, this Court would not find any reason to interfere with the impugned order and accordingly, this application is wholly misconceived and is accordingly dismissed. After the aforesaid order was dictated in relation to the aforementioned two submissions recorded above, counsel for the petitioner on completion of the 6 order is willing to make more comment about the impugned order. He came out with a plea that the findings recorded by the court below by way of income from agricultural land was based on mere assumption and not on the basis of the evidence adduced by the parties. He has infact emphasized on this aspect by taking a plea that, true it is, that the petitioner had 8 bighas of land in his name, but then the court below was duty bound to first ascertain the income derived from such agricultural land. In the opinion of this Court counsel for the petitioner has virtually mixed the scope of the revision with the scope of appeal. This Court has only to find out as to whether order is vitiated on account of jurisdictional error and/or material irregularity. This Court does not appreciate the repeated insistence of the counsel for the petitioner that specific finding should be recorded in particular manner with regard to appreciation of evidence by the court below. This Court, in fact, finds that the petitioner has 8 7 bighas of agricultural land which was under his possession from which he has annual income in addition to retirement benefit and therefore it was sufficient for the court below to come to a finding that the income of the petitioner from all sources were good enough to constitute at least a liability of payment of maintenance Rs. 2,000/- per month for his wife. If such finding has been arrived by the court below on the basis of appreciation of the evidence the same cannot be re-appraised by this Court as on appellate court while exercising power under section 115 of the Code of Civil Procedure. Submission on behalf of the petitioner that the court below has not appreciated the evidence is itself an error of record. The court below, in fact, in paragraph 9 of the impugned order has recorded the following findings which has relevance and needs to be quoted hereinbelow:- “From scrutiny of the statement of witnesses of both petitioner and O.P. as well as the 8 petitioner’s show cause, I find that it is the admitted position of the case that the petitioner is legally wedded wife of the O.P. and both of them are living separate. The O.P. himself in his statement has stated that since 2003 he is not living with his wife. It may be that petitioner is living in the native house of the O.P. but she has denied that she is getting any income from cultivation of the land of her husband. The O.P. has of-course asserted that the lands are cultivated by his wife and son and he does not get any income from it. But his statement has been controverted by his own witness O.P.W.1 who stated that the O.P. is three brothers and all of them looks-after the land. Thus evidently the petitioner has got no source of income to maintain herself. So even if she is living in her husband’s house, she is entitled to get maintenance from him.” (Underlining by me for emphasis) It also appears that the findings recorded in paragraph 9 of the impugned order have also been reiterated with added emphasis in paragraph nos. 10 and 11 of the same impugned order. All these would 9 only indicate the Court below has not committed any material irregularity muchless any jurisdictional error in passing the impugned order, which alone could be the ground for interference by this Court in its revisional jurisdiction. In that view of the matter, this Court does not find any merit in this application and accordingly the same is dismissed. ( Mihir Kumar Jha, J. ) Abhay Kumar