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IN THE HIGH COURT OF JUDICATURE AT RAJASTHAN BENCH AT JAIPUR
Pankaj Bhandari, J.
Nirmala Gome - Appellant
Vs.
Hariballabh Gome D/o Shivram Gome - Respondent
Criminal Revision Nos. 1116 & 1339 of 2017
Decided On : 30-07-2018
MAINTENANCE - SECTION 125 CRPC - SECTION 25 DV ACT - SECTION 125(4) CRPC - SUMMARY: Court upheld the maintenance amount of Rs. 4,000/- per month awarded to the wife under Section 125 CrPC, but set aside the grant of maintenance from the back date. The court noted that the wife was also receiving Rs. 10,000/- per month as interim maintenance under the Domestic Violence Act.
Fact of the Case:
The wife, Nirmala Gome, filed a petition under Section 125 CrPC for maintenance from her husband, Hari Ballabh Gome, who was an Executive Engineer in PHED. The wife contended that she had no source of income and that the husband had many properties. The husband contended that the wife was harassing him and that he had been acquitted in a case filed by her under Section 498-A and 406 of IPC. He also contended that he was paying Rs. 10,000/- per month as interim maintenance under the Domestic Violence Act and that he was under suspension.
Finding of the Court:
The court found that the husband was receiving Rs. 54,000/- per month after deduction of State insurance, GPF and income tax, and that he had to pay an installment of Rs. 16,000/- per month. The court also found that the wife was residing in the house belonging to the husband and that her application for enhancement of interim maintenance in the domestic violence case had been allowed by the court below.
Issues: 1. Whether the maintenance amount of Rs. 4,000/- per month awarded to the wife under Section 125 CrPC was excessive or meagre? 2. Whether the grant of maintenance from the back date was justified?
Ratio Decidendi: 1. The court held that the maintenance amount of Rs. 4,000/- per month awarded to the wife was not excessive or meagre, considering the husband's income and the wife's lack of source of income. 2. The court held that the grant of maintenance from the back date was not justified, as the dispute between the parties with regard to 498-A and 406 of IPC stood decided in favour of the husband and his application for divorce on the ground of cruelty also stood decided in his favour.
Final Decision: The court dismissed the wife's revision petition and partly allowed the husband's revision petition. The amount of maintenance of Rs. 4,000/- per month would be payable from the date of the order of the court below.
Pankaj Bhandari, J.
Petitioner Nirmala Gome has preferred the Criminal Revision Petition No.1339/2017 and petitioner Hari Ballabh Gome has preferred Criminal Revision Petition No.1116/2017, aggrieved by order dated 03.06.2017 passed by Judge, Family Court No.3, Kota who has awarded Rs. 4,000/- per month to petitioner Nirmala Gome from the date of filing of the application. Petitioner Nirmala Gome has preferred revision petition for enhancement of the maintenance amount and petitioner Hari Ballabh Gome has preferred the revision petition for setting aside the order of maintenance.
2. It is contended by counsel for petitioner Nirmala Gome, that respondent Hari Ballabh Gome is Executive Engineer in PHED and looking to his salary, the maintenance awarded to the petitioner is meagre. It is also contended that respondent Hari Ballabh Gome has many properties and petitioner Nirmala Gome has no source of income. She is an advocate who is having no briefs and is only contesting her own case.
3. Counsel for petitioner Hari Ballabh Gome in Criminal Revision Petition No.1116/2017 has contended that his wife Nirmala Gome filed a case under Section 498-A and 406 of I.P.C. in which petitioner Hari Ballabh Gome was acquitted. Petitioner Nirmala Gome moved a petition under the Domestic Violence Act, wherein Rs. 3,000/- was awarded to her as maintenance. Thereafter, she moved an application for enhancement of maintenance, on ground of increase in salary by the implementation of Seventh Pay Commission. She prayed that interim maintenance be enhanced to Rs. 10,000/-. Court allowed the application and enhanced the interim maintenance to Rs. 10,000/- per month from 10.07.2017.
4. It is also contended by counsel for Hari Ballabh Gome that since Nirmala Gome is receiving Rs. 10,000/- per month as interim maintenance under the Domestic Violence Act, there was no justification in awarding additional Rs. 4,000/-. It is also contended that a divorce petition was filed by Hari Ballabh Gome on the ground of cruelty which stands allowed and a divorce decree is passed in favour of Hari Ballabh Gome by the Family Court on 30.03.2018. The limb of argument is that it is Nirmala Gome who is harassing Hari Ballabh Gome, the passing of decree of divorce on the ground of cruelty establishes the said fact. It is also contended that Hari Ballabh Gome is to look-after her mother and has to pay the loan and he is under suspension.
5. It is also contended that Nirmala Gome is an advocate who is also running a beauty parlour. The Court has wrongly rejected the plea of Hari Ballabh Gome on the ground that an advocate cannot indulge in other business. It is also argued by counsel for the petitioner Hari Ballabh Gome that there was no justification of Court to award maintenance from the date of filing of the application, reliance in this regard is placed on "Madan Lal Vs. Smt. Pushpa Devi, 2018 1 WLC(Raj) 666."
6. It is contended by counsel for the petitioner Nirmala Gome that there is a loan on the house in which Nirmala Gome is residing and Hari Ballabh Gome has not repaid the loan and Nirmala Gome had to arrange funds from her relatives to repay the loan.
7. I have considered the contentions.
8. Admittedly, petitioner is residing in the house belonging to Hari Ballabh Gome and her application for enhancement of interim maintenance in the domestic violence case stands allowed by the Court below and interim maintenance under the Domestic Violence Act has been increased from Rs. 3,000/- to Rs. 10,000/- per month.
9. While passing the order dated 10.07.2017, Court has mentioned that amount of Rs. 10,000/- under the Domestic Violence Act will be in addition to the maintenance given under Section 125 of Cr.P.C. by the Family Court. Hari Ballabh Gome was suspended as he has remained in custody and he is now receiving Rs. 54,000/- per month after deduction of State insurance, GPF and income tax. In addition he has to pay installment of Rs. 16,000/- per month and the net amount wh
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