Final Order 7

Order Details: COPY OF ORDER
Pdf Text: CA 60/2023
MAHESH KUMAR
Vs.
SONIA
CA 68/2023
SONIA BADLEY
Vs.
MAHESH KUMAR
(COMMON ORDER)
22.05.2024
ORDER ON APPEAL
Present : Sh. Ravinder Kumar, Ld. Counsel for appellant.
Respondent in person.
Sh. Gautam Pal, Ld. Counsel for respondent.
1. Marriage of the appellant Mahesh Kumar (for sake of
convenience, hereinafter referred as appellant for both the
appeals) and respondent Sonia Badley (for sake of
convenience, hereinafter referred as respondent for both the
appeals) was solemnised on 17.01.2012, as per Hindu rites
and customs. Two daughters were born out of the said
wedlock, who are presently residing with the respondent.
Subsequently, the matrimonial relations between the appellant
and the respondent went into a phase of bad weather, which
led to filing of some litigations, including an application
u/s.12 of Protection of Women from Domestic Violence 2005
(hereinafter referred to as D.V. Act). In the aforesaid D.V.
Petition, respondent / wife of the appellant moved an
application u/s.23 of D.V. Act, seeking interim maintenance.
Ld. Trial Court took up the application on 25.02.2023,
allowed the same and granted monthly interim maintenance
of Rs.9,000/- each to the respondent and two minor daughters.
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CA 60/2023
MAHESH KUMAR
Vs.
SONIA
CA 68/2023
SONIA BADLEY
Vs.
MAHESH KUMAR
(COMMON ORDER)
The said order has been challenged via two separate appeals
by the appellant and respondent.
2. Contents of the application are perused. Submissions heard.
3. The marriage between the parties, sharing of domestic
relationship and the parentage of the children is not in
dispute. As far as the allegations of domestic violence are
concerned, same are not required to be discussed for the
purpose of the present issue, which relates to interim
maintenance only.
4. Now, adverting towards the quantum of maintenance. The
appellant has admitted the fact that he is a government
employee getting net salary to the tune of Rs.80,000/- per
month. He has some FDRs and savings in the bank account
and is residing in his own accommodation at Sonipat,
Haryana. He has claimed that he has monthly expenditures of
Rs.70,000/-, including EMIs of Rs.31,498/- and Rs.8,960/-
towards house loan and car loan.
5. On the other hand, respondent / wife is housewife, who is
residing separately in matrimonial home, which is in name of
the mother of the appellant. She is also taking care of two
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CA 60/2023
MAHESH KUMAR
Vs.
SONIA
CA 68/2023
SONIA BADLEY
Vs.
MAHESH KUMAR
(COMMON ORDER)
minor daughters aged about 8 years and 14 months
respectively. It may be noted that appellant has nowhere
disputed that respondent is a housewife without having any
source of income.
6. While passing the impugned order, Ld. Trial Court has relied
upon the observations made by the Hon'ble Punjab &
Haryana High Court in case titled as Seema & Ors. Vs.
Gaurav Juneja, 2018, wherein the Hon'ble High Court has
made following observations :
“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 Kumari 1971 AIR (SC) 234 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, the expenses for maintaining a car and
the contribution out of salary to the provident fund of the appellant
was not allowed. Only deductions towards income-tax and
contributions to provident fund which had to be made compulsorily
were allowed. The relevant portion of Dr. Kulbhushan Kunwar's case
(supra) reads as under :-
"19. It was further argued before us that the High Court
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CA 60/2023
MAHESH KUMAR
Vs.
SONIA
CA 68/2023
SONIA BADLEY
Vs.
MAHESH KUMAR
(COMMON ORDER)
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 expenses for maintaining a car and 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 Committee. Income Tax would
certainly be deductible and so would contributions to the
provident fund which have to be made compulsorily. No
deduction is permissible for payment of house rent or
electricity charges. The 8 of 12 CRR(F)-205-2015 & -9-
CRR(F)-276-2015 expenses for maintaining the car for
the purpose of 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." 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”.
7. In the aforesaid case, the Hon'ble High Court has clarified
that only involuntary deductions, like income tax and
provident fund contributions are to be excluded while
calculating the income of a party. The voluntary deductions
like EMIs towards house loan or car loan, cannot be excluded
because in form of such expenditures, a party actually creates
future assets for himself. Logically he should not be permitted
to do so at expense of the opposite party, who is entitled to
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CA 60/2023
MAHESH KUMAR
Vs.
SONIA
CA 68/2023
SONIA BADLEY
Vs.
MAHESH KUMAR
(COMMON ORDER)
maintenance. By applying the law laid down by the Hon'ble
High Court in the aforesaid case, Ld. Trial Court refused to
exclude the EMIs towards home loan and car loan. This Court
does not see any fault in the approach of the Ld. Trial Court
while calculating the income of the appellant.
8. Further, this Court can also not loose sight of the fact that
both the children are 8 years and 14 months in age.
Considering their age, it can be conveniently assumed that the
respondent is not incurring any major expenses on their
education. She is also not making any expenditure towards
rent because she is admittedly residing in a house which is in
name of mother of the appellant. Under the circumstances, the
total maintenance of Rs.27,000/- to the respondent and two
minor daughters appears to be reasonable.
9. After considering the monthly income and expenditures of the
appellant and the expenditure and expenses of the respondent,
this Court is of the opinion that Ld. Trial Court has rightly
calculated the income of the appellant and has granted a
suitable compensation to the respondent. This Court does not
see any reason to interfere with the impugned order. Both the
appeals are accordingly dismissed.
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CA 60/2023
MAHESH KUMAR
Vs.
SONIA
CA 68/2023
SONIA BADLEY
Vs.
MAHESH KUMAR
(COMMON ORDER)
10.A copy of this order alongwith TCR, if any, be sent back.
11.File be consigned to Record Room.
BABRU BHAN
ADDL.SESSIONS JUDGE-03,
NORTH WEST DISTT,
ROHINI COURTS
DELHI/22.05.2024
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