2021:DHC:588

$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 08.02.2021

Pronounced on: 18.02.2021
(1) + CRL.REV.P. 322/2020 & Crl.M.A. 13958/2020
NITIN SHARMA ..... Petitioner
Through: Ms. Pooja Chhabra, Advocate

Versus

SUNITA SHARMA & ORS. ..... Respondents

Through: Ms. Mamta Mayer & Mr. K.K.
Krishan Prabhu, Advocates

(2) + CRL.REV.P. 374/2020

SUNITA SHARMA & ORS. ..... Petitioners
Through: Ms. Mamta Mayer & Mr. K.K.
Krishan Prabhu, Advocates

Versus

NITIN SHARMA ..... Respondent

Through: Ms. Pooja Chhabra, Advocate

CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT

JUDGMENT

1. 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

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 2021:DHC:588

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.

2. 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.

3. 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.

4. 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
respondent submits that he shall find rented
accommodation somewhere near his office.

Respondent is directed to file suitable rented

accommodation before the next date of hearing. By that

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 2021:DHC:588

time, he is directed to pay Rs.10,000/- per month as

interim maintenance to petitioner.

The petitioner shall give her complete address to

respondent where he can meet both his children as per his
convenience.”

5. 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.”

6. Aggrieved against the aforesaid orders, parties have approached this

Court for relief.

7. 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

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 2021:DHC:588

@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.

8. 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,

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who is totally dependent upon him.

9. 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

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 2021:DHC:588

month [@Rs.7,400/- p.m. each person] 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.

13. 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.

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 2021:DHC:588

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.

14. 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.

15. 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.

16. 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

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 2021:DHC:588

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

given effect to.

17. At this stage, it has been averred before this Court that the husband

undertakes to purchase two LIC policies (with approximate EMI of

Rs.4,200/-each for both children) as soon as the loan amount of husband gets

over.

18. 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

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 2021:DHC:588

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

month.

20. 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 shares (two shares for husband and one share each

for mother, wife and two children) and 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

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 2021:DHC:588

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:-

Earnings Deductions
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

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 2021:DHC:588

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.

24. 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 Kumari (1970) 3 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:-

“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
otherwise unable to maintain themselves, shall be
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

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 2021:DHC:588

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 Kumari (1970) 3
SCC 129 : 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 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
expenses for maintaining the car for the purpose of

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 2021:DHC:588

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 (which is a kind of saving) 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

court.

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,

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 2021:DHC:588

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., (1997) 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
case…….”

28. In view of the aforementioned observations, husband cannot wriggle

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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.

30. 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

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 2021:DHC:588

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. (2015) 6 SCC 353 has observed as under:-

“2. Be it ingeminated that Section 125 of the Code of

Criminal Procedure (for short “the Code”) was conceived
to ameliorate the agony, anguish, financial suffering of a
woman who left her matrimonial home for the reasons
provided in the provision so 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

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 2021:DHC:588

maintenance from the husband on any legally permissible

grounds.”

32. Accordingly, I find that the trial court has erred in keeping mother’s

share in the income of husband.

33. 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/- (round of Rs.8910/-p.m.). Resultantly, the

wife shall be entitled to interim maintenance @Rs.26,736/- p.m. and in round

figure Rs.26,000/- instead of Rs.22,000/- p.m.

34. The impugned order dated 16.07.2020 is accordingly modified in

aforesaid terms. Needless to say, nothing stops the husband/ father to buy

LIC policies or any other kind of investment for the betterment and future of

his children.

35. The above captioned petitions and pending application are accordingly
disposed of.

36. The judgment be uploaded on the website of this Court forthwith.

(SURESH KUMAR KAIT)

JUDGE
FEBRUARY 18, 2021/r

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