The Allahabad High Court while treating the pension as the monthly income of the husband, held that awarding 25 percent of the monthly income of the husband as maintenance is not excessive.
A Single Bench of Justice Surendra Singh-I heard the Criminal Revision filed by Matapher.
By means of the criminal revision, the revisionist has challenged the order dated 10.12.2019 passed by the Additional Principal Judge, IIIrd, Family Court, Allahabad in Maintenance Case filed u/s 125 CrPC and order dated 07.12.2022 passed by the Additional Principal Judge, Family Court, Allahabad in Misc Case instituted u/s 127 CrPC.
By the order dated 10.12.2019, the Additional Principal Judge, IIIrd, Family Court, Allahabad had allowed the application filed u/s 125 Cr.P.C and granted maintenance of Rs 7,000/- per month to opposite party no 2, Smt Durga Devi.
By the order dated 07.12.2022, the Additional Principal Judge, Family Court, Allahabad, had rejected application u/s 127 Cr.P.C filed by the revisionist, Matapher.
Averment has been made by the counsel for the revisionist that in the trial court, arguments were made on behalf of the revisionist that opposite party no 2, Smt Durga Devi was not his legally wedded wife and her both children were not his children. He had requested the trial court for a DNA test but the trial court did not pass any order on his application for the DNA test.
It has also been submitted that the trial court without application of judicial mind to the facts and circumstances of the case and the evidence on record, passed the order dated 10.12.2019 and 07.12.2022 and allowed the application of opposite party no 2 u/s 125 Cr.P.C and rejected the application u/s 127 Cr.P.C filed by the revisionist respectively.
The aforesaid orders were illegally passed by the court against the provisions of law merely based on surmises and conjectures. Therefore, they are liable to be set-aside.
It has also been submitted that the revisionist’s marriage was not solemnized with the opposite party no 2, Smt Durga Devi and the children of opposite party no 2 are not born out of their wedlock.
It has also been submitted that opposite party no 2, Smt Durga Devi is cultivating his farm and taking the income arising out of selling of crops. Her son has also been settled and her daughter has been married. Therefore, the trial court has provided maintenance allowance to the opposite party no 2 without any justification.
Counsel for the revisionist said that the revisionist left his village for his education in his childhood. After completing education, he came into government service and solemnized his marriage with Gayatri Devi.
Two sons were born out of their wedlock. In the year 2013, he retired from the government job. Since then he has been residing in Allahabad along with his wife and children. His brother, Vansh Raj kept opposite party no 2, Smt Durga Devi and is residing in the village with her.
In the year 2013, his son Saurav Pathak died. On that occasion, his brother Vansh Raj visited his house. He threatened the revisionists not to move towards the agricultural land otherwise he will face dire consequences.
Counsel for the revisionist further said that on 03.11.2016, opposite party no 2, Smt Durga Devi lodged Case u/s 420, 467, 468, 469, 471 I.P.C in Police StationDhoomanganj, District- Allahabad, against the revisionist in collusion with his brother, Vansh Raj. She has also filed a complaint case on 17.12.2015 u/s 12 of the Domestic Violence Act against him. His brother, Vansh Raj has illegally occupied the share of the revisionist in his parental agricultural land.
He also said that the revisionist filed an objection against the application u/s 125 Cr.P.C and produced his oral and documentary evidence. He had filed application u/s 127 Cr.P.C for alteration of maintenance allowance granted by the court concerned vide order dated 10.12.2019. The court concerned illegally allowed the application filed u/s 125 Cr.P.C by the opposite party no 2, Smt Durga Devi and rejected the application of the revisionist filed u/s 127 CrPC.
It has also been submitted that the revisionist is 79 years old and suffering from old-age related diseases for which he is undergoing treatment at Medanta Hospital, Lucknow.
It has also been submitted on behalf of the revisionist that he had filed application u/s 127 Cr.P.C for modification of the maintenance allowance granted in favour of opposite party no 2 by the trial court.
The Court noted that,
The application was filed on the ground that the trial court while granting maintenance allowance u/s 125 Cr.P.C had not only taken into consideration his monthly pension of Rs 34,656/- but also included in it income from agricultural land and had fixed the total monthly income as Rs 40,000/- per month. The trial court on the basis of his monthly income of Rs 40,000/- had granted Rs 7,000/- per month as maintenance allowance to opposite party no 2 whereas he is not in possession of the agricultural land and he is not getting any income from the crops grown on it. The cultivation of their agricultural land is being done by opposite party no 2 and she is utilizing the income by selling the crops grown on it but the trial court while rejecting his application u/s 127 Cr.P.C did not consider his pleadings in this regard.
The Court observed that,
From the above analysis, I am of the opinion that the trial court has rightly concluded that opposite party no 2 is the legally wedded wife of revisionist Matapher. As far as the quantum of maintenance determined by the trial court as Rs 7,000/- per month payable to the opposite party no 2, Smt Durga Devi, the monthly income of revisionists should be taken into consideration. The revisionist had admitted in his pleadings as well as deposition that he retired in the year 2013 and is getting Rs 34,656/- as monthly pension.
The Apex Court in Kulbhushan Kumar Vs Raj Kumari, (1970) 3 SCC 129 has held that 25% of the husband’s net salary would be just and proper to be awarded as maintenance allowance to the wife. The amount of permanent alimony awarded to the wife must be befitting the status of the parties and the financial capacity of the husband to make the payment.
The trial court has added Rs 5,344/- as agricultural income into the amount of monthly pension of Rs 34,656/- of the revisionist Matapher and has taken his monthly income as Rs 40,000/-. The objection of revisionists is that he is neither in possession nor drawing any income from the agricultural land. Even if the income from agricultural land is excluded, admittedly revisionists are earning Rs 34,656/- as monthly pension.
“Applying the law laid down by the Apex Court, 25% of monthly pension will be Rs 8,664/- whereas the trial court has granted Rs 7,000/- per month as monthly maintenance allowance to the opposite party no 2, Smt Durga Devi. Therefore, the maintenance allowance granted to the opposite party no 2 cannot be considered as excessive vis-a-vis the monthly pension of the revisionist rather it is on the lower side. Therefore, the trial court has rightly rejected his application filed u/s 127 Cr.P.C for reduction in the maintenance allowance on the ground that he is not drawing any income from the agricultural land.
From the above discussion, I am of the view that there is no illegality, irregularity, or jurisdictional error in the impugned orders dated 10.12.2019 and 07.12.2022 passed by the trial court. There is no merit in the criminal revision and is liable to be dismissed”the Court further observed while dismissing the petition.
“The monthly maintenance allowance provided by the trial court of Rs 7,000/- shall be payable to the opposite party no 2, Smt Durga Devi from the date of her filing application u/s 125 Cr.P.C which shall be payable till 10th of each calendar month. The arrears of maintenance allowance shall be paid by the revisionist in four equal amounts within a period of six months. The amount of maintenance allowance already paid to the opposite party no 2 shall be set off against this amount”, the Court ordered.