IMPORTANT POINT
Maintenance – Voluntary deduction cannot be said to be a statutory and mandatory deduction and it cannot be taken into consideration for calculating quantum of maintenance.

ORDER

This revision under Section 397/401 of Cr.P.C. read with Section 19(4) of Family Court Act has been filed against the order dated 14.12.2023 passed by IInd Additional Principal Judge Family Court Indore in M.Cr.C. 1049/2018 by which monthly maintenance at the rate Rs.5,000/- has been awarded to the applicant.

2. It is submitted by the counsel for applicant that the applicant and respondent are legally wedded husband and wife. The applicant filed an application under Section 125 of Cr.P.C. for grant of maintenance. By the impugned order, she has been awarded maintenance at the rate of Rs.5,000/- with a rider that the said amount shall be adjusted in case if the applicant is receiving maintenance amount under any other statute. It is further submitted that the respondent was directed to submit his salary slip which he has done and according to the salary slip of the month of July, 2024 his net salary is Rs. 38,373/-. Thus, it is submitted that the monthly maintenance at the rate of Rs.5,000/- per month is on a lower side.

3. Per contra, the revision is vehemently opposed by counsel for respondent. It is submitted that by order dated 13.12.2019 passed by 11st ASJ, Indore, in Criminal Appeal No. 176/2019, an amount of Rs. 7,500/- per month has been awarded under Section 20 of Protection of Women from Domestic Violence Act, therefore, the said amount is liable to the adjusted. It is further submitted that respondent had taken a loan for construction of house and accordingly he is required to pay a monthly installment of Rs.13,700/- and, therefore, it is clear that his net income is Rs.25,000/-per month. The applicant has a responsibility to look after his parents who are residing in Badwani.

4. Heard learned counsel for the parties.

5. According to the respondents, the applicant has been directed to pay Rs.7,500/- per month by order dated 13.12.2019 passed in Criminal Appeal No. 176/2019 decided by 11th ASJ Indore. Since counsel for applicant is not aware of this order, therefore, it is not known as to whether the respondent is regularly making payment of the said amount or not?

6. Be that whatever it may be.

7. So far as the loan is concerned, it is clear that it is a voluntary deduction and the amount in lump sum was already received by the respondent in advance which is being repaid by him in different installments, therefore, the said installment cannot be said to be a statutory and mandatory deduction. Furthermore, according to the applicant the said loan was taken after the separation and, therefore, it was deliberately done by the respondent to bring down his net take home salary. Therefore, it cannot be taken into consideration for calculating the quantum of maintenance.

8. The Supreme Court in the case of Rajnesh Vs. Neha and Another reported in (2021) 2 SCC 324 has laid down certain guidelines with regard to quantum of maintenance and has held as under:-

“77. The objective of granting interim/permanent alimony is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded.

78. The factors which would weigh with the court inter alia are the status of the parties; reasonable needs of the wife and dependent children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife. [Refer to Jasbir Kaur Se