Calculation of maintenance does not include house rent: High Court of Delhi

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 08.02.2021 Pronounced on: 18.02.2021 CRL.REV.P. 322 2020 & Crl.M.A. 13958 2020 NITIN SHARMA Through: Ms. Pooja Chhabra Advocate Petitioner SUNITA SHARMA & ORS. Respondents Through: Ms. Mamta Mayer & Mr. K.K. Krishan Prabhu Advocates CRL.REV.P. 374 2020 SUNITA SHARMA & ORS. Petitioners Through: Ms. Mamta Mayer & Mr. K.K. Krishan Prabhu Advocates NITIN SHARMA Respondent Through: Ms. Pooja Chhabra Advocate HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENT Vide above captioned first petition petitioner husband is seeking quashing of order dated 16.07.2020 passed by the learned Principal Judge Family Court Dawarka vide which amount of interim maintenance has been Crl. Rev. P. 322 2020 & Crl. Rev. P. 374 2020 enhanced to Rs.22 000 against the order dated 17.09.2019 passed by the learned trial court whereby he has been directed to pay maintenance of Rs.10 000 p.m. to respondent wife. Vide above captioned second petition petitioner wife is seeking modification of the order dated 16.07.2020 passed by the learned Principal Judge Family Court Dwarka vide which interim maintenance amount of Rs.10 000 per month awarded by the trial court has been enhanced to Rs.22 000 while claiming it to be on the lower side. The subject matter of dispute in these petitions is essentially a matrimonial dispute. Since the orders impugned in both the petitions are common therefore with the consent of learned counsel for the parties these petitions have been heard together and are being disposed of by this common judgment. In a petition under Section 125 Cr.P.C. filed by the wife the learned trial court vide order dated 17.09.2019 has passed following directions: “No settlement could arrive at between the parties in the counselling cell. However it appears that parties are agreeable to live in a rented accommodation. But the accommodation somewhere near his office. accommodation before the next date of hearing. By that is directed Crl. Rev. P. 322 2020 & Crl. Rev. P. 374 2020 time he is directed to pay Rs.10 000 per month as interim maintenance to petitioner. The petitioner shall give her complete address respondent where he can meet both his children as per his convenience.” Dissatisfied with the amount of interim maintenance awarded by the learned Family Court vide order dated 17.09.2020 the wife preferred an application seeking enhancement of interim maintenance and the said application was allowed vide order dated 16.07.2020 while observing as under: “In view of the above facts and circumstances the application filed by the petitioners for interim maintenance is allowed. The respondent is directed to pay a sum of Rs.7 400 per month each to petitioners no.1 to 3 i.e. Rs.22 000 PM from the date of filing of the application till the disposal of the petition. The respondent is directed to make the payment of entire arrears of maintenance within a period of 5 months from today. Any amount paid by the respondent to the petitioners as maintenance under the order of any court shall be adjusted against the arrears. The application is disposed of accordingly.” Aggrieved against the aforesaid orders parties have approached this Court for relief. The stand taken by husband is that the order dated 16.07.2020 is illegal and devoid of merits. According to husband the trial court has failed to appreciate that he had been regularly paying ad interim maintenance Crl. Rev. P. 322 2020 & Crl. Rev. P. 374 2020 @Rs.10 000 per month to his wife though he himself has been earning Rs.39 560 per month. Husband has alleged that the learned trial court has erred in taking his annual income at Rs.5 19 655 as per Income Tax Returns ITR) for the assessment year 2019 20 whereas his actual income as per ITR for the said year was Rs.4 36 880 after deduction of tax. He has further raised grievance that while passing the impugned order the learned trial court has not considered his salary receipt for the month of September 2019 but has wrongly considered one entry in the bank statement which showed credit of Rs.44 560 taking it to be his salary on 30.08.2019 whereas the fact is that in the month of August 2019 he had received annual dress allowance of Rs.5 000 in addition to his salary of Rs.39 560 p.m. Besides trial court has also not taken into consideration the amount of rent paid by him. It is stated that in the affidavit of income filed by his wife she has not shown her expenditures. Learned counsel for husband further submitted that the twin children born out of the wedlock of the parties are 06 years old and only a meagre sum of Rs.750 each has to be paid towards their school fees and the maintenance amount fixed at Rs.7 400 p.m. each person is exorbitant and difficult for the husband to pay as he has to take care of his old and ailing mother also Crl. Rev. P. 322 2020 & Crl. Rev. P. 374 2020 who is totally dependent upon him. Learned counsel for husband also submitted that he has not deserted his wife and rather she herself has chosen to stay away from him and learned trial court has failed to take into consideration provisions of Sub Sections 4 and 5 of Section 125 Cr.P.C. which provides that if wife has deserted her husband she is not entitled to any maintenance. 10. Lastly learned counsel for husband submitted that from his salary husband has to meet his expenses like paying rent arranging for washer man cook etc. and in addition has to bear expenses of his mother. It was submitted that he is not escaping from his responsibilities towards his wife and children and his bona fide is made out from the fact that he has been regularly paying the interim maintenance amount of Rs.10 000 p.m. but vide order dated 16.07.2020 maintenance amount has been enhanced to Rs.22 000 which is highly exorbitant and therefore this order deserves to be set aside. 11. On the other hand the stand of wife is that the amount of Rs.22 000 fixed towards interim maintenance vide impugned order dated 16.07.2020 is on the lower side and the learned trial court has ignored several relevant factors while passing the said order. It is averred by wife that in the impugned order the amount of interim maintenance fixed @Rs.22 000 per Crl. Rev. P. 322 2020 & Crl. Rev. P. 374 2020 month has been arrived at by taking into consideration ITR for the assessment years 2018 19 and 2019 20 according to which the annual income of husband has been taken as Rs.5 19 655 and monthly income has been taken as Rs.44 560 . In addition learned trial court has also taken into consideration that husband’s mother as dependent upon him which are required to be looked into by this Court. 12. Learned counsel for wife submitted that as per affidavit dated 01.02.2021 filed by husband before the trial court he has only three dependants his wife and two minor children and his mother is not dependent upon him as she is getting monthly pension of Rs.17 199 from Northern Railways and in addition she also receives rent of Rs.8 000 per month from a house owned by her. As per the said affidavit his brother is married and employed and thereby their financial position is very strong. Learned counsel next submitted that mother of husband is in a good health condition and even otherwise she is entitled to free medical facilities from Central Railways Hospital. It was strenuously stated on behalf of the wife that while passing the order dated 16.07.2020 learned trial court has divided the income of husband into six shares whereas it should have been actually divided into five shares. Crl. Rev. P. 322 2020 & Crl. Rev. P. 374 2020 It is stated that taking the income of husband @Rs.44 560 per month and by dividing it into five shares the monthly share of each member comes to Rs.8 661 p.m. each person against the actual awarded maintenance of Rs.7 400 p.m. each person. It was also submitted on behalf of wife that she is unemployed and is currently living in a rented accommodation with her two children which are in her custody and therefore the amount of interim maintenance awarded by the trial court vide order dated 16.07.2020 is required to be enhanced. In rebuttal it is stated on behalf of husband that wife was a dance instructor prior to the marriage and thus had source of income. It was also submitted that the husband had got employment in Indian Railways on compassionate grounds sighting ailment of his mother and after tendering of ‘no objection’ by his mother and he had undertaken to take care of his mother and younger brother and therefore the learned trial court has rightly divided husband’s income into six shares. It was also stated on behalf of husband that he has taken a loan to clear debts of his family from friends and relatives and towards its repayment a substantial amount is being paid from his salary. Learned counsel for husband also submitted that the trial court has erroneously taken into Crl. Rev. P. 322 2020 & Crl. Rev. P. 374 2020 consideration his monthly income @Rs.44 560 p.m. month against the actual income of Rs.39 560 p.m. and therefore the maintenance awarded by the trial court has to be reassessed and the impugned order dated 16.07.2020 is liable to be set aside. It has also been empathetically stated on behalf of husband that the interim maintenance @Rs.10 000 awarded by the court vide order dated 17.09.2019 was just and proper and the said order be 17. At this stage it has been averred before this Court that the husband undertakes to purchase two LIC policies as soon as the loan amount of husband gets given effect to. over. I have considered the rival submissions made by both the sides and gone through the impugned orders dated 17.09.2019 and 16.07.2020 as well as other material placed on record. 19. The factual matrix of the case as noted in the impugned order dated 16.07.2020 passed by the trial court is that the marriage between the parties was solemnized as per Hindu rites on 02.05.2013 and out this wedlock two twin boys were born. Due to certain differences parties started living separately and the two sons are in the custody of wife. The wife claimed that Crl. Rev. P. 322 2020 & Crl. Rev. P. 374 2020 she is helpless and unemployed and is totally dependent upon husband for her survival and that for their sons. She further claimed that her husband had his own vehicle and is living a luxurious life and can easily maintain her and the children but is deliberately neglecting his responsibilities. On these assertions the wife has claimed interim maintenance @Rs.40 000 per It stands also noted in the order that as per income affidavit of husband placed on record he is working as a Technician in Indian Railways and getting monthly salary of Rs.37 418 p.m. and as per copy of ITR for the assessment years 2018 19 and 2019 20 placed on record husband’s gross income was Rs.5 19 655 p.a. that is to say Rs.43 305 p.m. However while taking into consideration a credit entry of Rs.44 560 made in husband’s bank account on 30.08.2019 trial court has taken his income to be Rs.44 560 p.m. and divided it into six sharesand thereby granted maintenance of Rs.7 400 p.m. each person. 21. So far as assertion of husband that his wife was a dance trainer prior to her marriage has rightly not been taken into consideration by the trial court as no document has been placed on record that wife had ever worked after Crl. Rev. P. 322 2020 & Crl. Rev. P. 374 2020 marriage or is still working. Keeping this fact in mind the learned trial court has rightly held husband responsible for maintaining his wife and children. The Hon’ble Supreme Court in Sunita Kachwaha Vs. Anil Kachwaha 2014) 16 SCC 715 has held that merely because wife was earning something would not be a ground to reject her claim for maintenance particularly when proof of her earnings were not placed on record before the courts below. 22. As far as monthly income of the husband is concerned as per his affidavit of income he has declared his income as Rs.37 418 p.m. whereas as per ITR for the assessment year his monthly income is Rs.43 305 p.m. As per credit in bank account his salary is Rs.44 560 p.m which the trial court has taken into consideration. The extract of copy of salary slip for the month September 2019 placed on record bifurcates his earnings and deductions as under: Pay 32900 NPST I 3685 DA 3948 CGIC C 30 HRA 7896 OP Unit AL 1033 TRAN ALL 4032 RLY EMP. 50 NHA 477 NZ HRE BND 1000 TRAV. ALL 750 NZ HRE LOAN 4451 Gross Pay 50003 Deductions 10249 Net Pay 39 754 Crl. Rev. P. 322 2020 & Crl. Rev. P. 374 2020 23. The aforesaid extract of husband’s salary slip of income and expenditure reveals that out of total gross pay of Rs.50 003 per month deduction of Rs.10 249 are made towards pension scheme insurance society membership and repayment of loan. In the opinion of this Court while calculating the quantum of maintenance the income has to be ascertained keeping in mind that the deductions only towards income tax and compulsory contributions like GPF EPF etc. are permitted and no deductions towards house rent electric charges repayment of loan LIC payments etc. are permitted. On this aspect the pertinent observations of Hon’ble Supreme Court in Dr. Kulbhushan Kunwar v. Raj Kumari3 SCC 129 which have been followed by a Bench of Punjab & Haryana High Court in Seema & Anr. Vs. Gourav Juneja 2018 SCC OnLine P & H 3045 are as under: to maintain “12. Section 125 Cr.P.C. stipulates that if any person having sufficient means neglects or refuses to maintain his wife his legitimate or illegitimate minor child who are themselves shall be otherwise unable obligated to do so. A moral duty and a statutory obligation is cast upon the husband to maintain his wife minor children parents who otherwise are not capable of maintaining themselves. A person cannot be permitted to wriggle out of his statutory liability by way of availing huge loans and reducing a substantial amount of his salary for repayment of the same every month. Deductions that are made from the gross salary towards long term Crl. Rev. P. 322 2020 & Crl. Rev. P. 374 2020 savings which a person would get back at the end of his service and such as deductions towards Provident Fund General Group Insurance Scheme L.I.C. Premium State Life Insurance can be deemed to be an asset that he is creating for himself. In arriving at the income of a party only involuntary deductions like income tax provident fund contribution etc. are to be excluded. Therefore such deductions cannot be deducted or excluded from his salary while computing his “means” to pay maintenance. In the case of Dr. Kulbhushan Kunwar v. Raj Kumari3 SCC 129 : 1971 AIR234 while deciding the question of quantum of maintenance to be paid the argument raised that deduction not only of income tax but also of house rent electricity charges maintaining a car and the contribution out of salary to the provident fund of the appellant was not allowed. Only deductions towards provident fund which had to be made compulsorily were allowed. The relevant portion of Dr. Kulbhushan Kunwar s casereads as under:— income tax and contributions the expenses for maintaining a car and “19. It was further argued before us that the High Court went wrong in allowing maintenance at 25% of the income of the appellant as found by the Income Tax Department in assessment proceedings under the Income Tax Act. It was contended that not only should a deduction be made of income tax but also of house rent electricity charges the contribution out of salary to the provident fund of the appellant. In our view some of these deductions are not allowed for the purpose of assessment of “free income” as envisaged by the Judicial Income Tax would certainly be deductible and so would contributions to the to be made compulsorily. No deduction is permissible for payment of house rent or electricity charges. The expenses for maintaining the car for the purpose of fund which have Crl. Rev. P. 322 2020 & Crl. Rev. P. 374 2020 appellant s practice as a physician would be deductible only so far as allowed by the income tax authorities i.e. in case the authorities found that it was necessary for the appellant to maintain a car.” 13. In a nutshell a husband cannot be allowed to shirk his responsibility of paying maintenance to his wife minor child and parents by availing loans and paying EMIs thereon which would lead to a reduction of his carry home salary.” 25. Applying the similar ratio to the case in hand I find that though the wife has not disputed deduction of Rs.1 000 p.m. towards NZRE BH NDLS however it is the duty of the Court to see the material available on record and to award just and fair maintenance. In this view of the matter I find that while calculating income of the husband deduction of Rs.1 000 towards NZRE BH NDLS contribution and Rs.4 451 NZRE BH Loan from his gross income of Rs.50 003 cannot be permitted. Hence husband’s net income in hand comes to Rs.44 552 p.m. and rounding it off to Rs.44 560 it has so rightly been arrived at by the trial 26. So far as the plea put forth by the husband that he has to pay rent for his accommodation is concerned it cannot be taken into consideration as he is duty bound to arrange for accommodation for his wife and children who are dependent upon him. Moreover the claim of wife is that husband is staying in the house owned by his mother which is a three storeyed building Crl. Rev. P. 322 2020 & Crl. Rev. P. 374 2020 of which one floor is occupied by her on another floor husband is residing and as per rent agreement placed on record he is paying a sum of Rs.8 000 p.m. towards rent to his mother. During the course of arguments it was also admitted by learned counsel for husband that due to covid 19 husband was living in his mother’s house but he intends to soon move out to a rented accommodation and also alleged that the wife along with children is staying at her brother’s house which is disputed by learned counsel for wife who has placed before this Court a copy of rent agreement which shows that wife is staying in a rented accommodation. 27. Be that as it may. The Hon’ble Supreme Court in Jasbir Kaur Sehgal Vs. Distt. Judge Dehradun & Ors. 7 SCC 7 has observed as under: “8. …..No set formula can be laid for fixing the amount of maintenance. It has in the very nature of things to depend on the facts and circumstances of each case. Some scope for leverage can however be always there. The court has to consider the status of the parties their respective needs the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her In view of the aforementioned observations husband cannot wriggle Crl. Rev. P. 322 2020 & Crl. Rev. P. 374 2020 out of his responsibilities to provide shelter to his wife and minor children. 29. The next question which has to be decided by this Court is as to whether the court below was right in dividing husband’s income into six shares while calculating and granting interim maintenance. It is an admitted fact that mother of husband is receiving pension Rs.17 199 and medical benefits etc. It is also not in dispute that the three storeyed house is in the name of mother of which one floor is occupied by her another by the husband and the third floor is occupied by the brother of the husband. According to wife as per the copy of rent agreement placed on record husband is paying a sum of Rs.8 000 p.m. towards rent to her mother and such might be the position of brother too. And in this way mother is getting additional rental income of approximately Rs.16 000 per month. 31. Even if it is assumed that the rent agreement placed on record might have been manipulated to save income tax then also it cannot be lose sight of that mother is receiving a good amount of pension and is thus financially independent. In addition she is also getting medical benefits from a Government Hospital which is an added advantage towards her financial savings. Another plea put forth by the husband is that he had got employment Crl. Rev. P. 322 2020 & Crl. Rev. P. 374 2020 in Indian Railways on compassionate grounds after demise of his father only because his mother had refused to procure it on medical grounds and tendered “no objection’ in his favour and therefore he is liable to maintain her. The Hon’ble Supreme Court in Bhuwan Mohan Singh Vs. Meena & Ors.6 SCC 353 has observed as under: the provision so “2. Be it ingeminated that Section 125 of the Code of Criminal Procedurewas conceived to ameliorate the agony anguish financial suffering of a woman who left her matrimonial home for the reasons that some suitable arrangements can be made by the court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play and that is where the obligations of the husband in case of a wife become a prominent one. In a proceeding of this nature the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field it is the obligation of the husband to see that the wife does not become a destitute a beggar. A situation is not to be maladroitly created whereunder she is compelled to resign to her fate and think of life “dust unto dust”. It is totally impermissible. In fact it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour if he is able bodied. There is no escape route unless there is an order from the court that the wife is not entitled to get Crl. Rev. P. 322 2020 & Crl. Rev. P. 374 2020 maintenance from the husband on any legally permissible 32. Accordingly I find that the trial court has erred in keeping mother’s share in the income of husband. In this view of the matter taking the income of husband @ Rs.44 560 p.m. and diving it into two shares for him and remaining for his dependants i.e. wife and two children that is to say by making five shares each one is entitled to the share @Rs.8912 JUDGE Crl. Rev. P. 322 2020 & Crl. Rev. P. 374 2020 

Summary: When the court decides the quantum of maintenance to be given by the husband to the wife, it shall not take into consideration deduction such as repayment of loan, rent etc. and shall only calculate deductions from tax or EPF. This was decided in the case of Nitin Sharma Vs. Sunita Sharma &amp; Ors. [C RL.REV.P. 322/2020 &amp; Crl.M.A. 13958/2020 and CRL.REV.P. 374/2020] by Hon’ble Justice Suresh Kumar Kait. The subject matter of in these petitions is essentially a matrimonial dispute The marriage between the parties was solemnized as per Hindu rites and out this wedlock, two twin boys were born. Due to certain differences, parties started living separately and the two sons are in the custody of wife. The wife claimed she is helpless and unemployed and is totally dependent upon husband for her survival and that for their sons. Dissatisfied with the amount of interim maintenance awarded by the learned Family Court, the wife preferred an application seeking enhancement of interim maintenance and the said application was allowed. The petitioner/husband is seeking quashing of order vide which amount of interim maintenance has been enhanced to Rs.22, 000. According to husband, the trial court has failed to appreciate that he had been regularly paying ad interim maintenance @Rs.10,000/- per month to his wife, though he himself has been earning Rs.39,560/- per month.. Also, he said that the trial court has also not taken into consideration the amount of rent paid by him. It is stated that in the affidavit of income filed by his wife, she has not shown her expenditures. The stand of wife is that the amount of interim maintenance fixed after it was taken into consideration that husband’s mother was dependent on him. It was further stated that mother of husband is in a good health condition and even otherwise, she is entitled to free medical facilities from Central Railways Hospital. Also, while passing the order the trial court has divided the income of husband into six shares, whereas it should have been actually divided into five shares. The court said that the trial court has rightly held husband responsible for maintaining his wife and children. The Supreme Court in Sunita Kachwaha Vs. Anil Kachwaha (2014) 16 SCC 715 has held “merely because wife was earning something, would not be a ground to reject her claim for maintenance particularly when proof of her earnings were not placed on record before the courts below.”