Sandwip Dhar vs Reshmi Majumder

Heard Mr. K Chakraborty, learned counsel appearing for the petitioner as well as Ms. R Majumder, learned legal aid counsel appearing for the respondent.

This petition, filed under Section 19(4) of the Family Courts Act, 1984 read with Sections 397(1) & 401(1) of the Code of Criminal Procedure is directed against the order dated 20.02.2019 (Annexure-12 to this petition) delivered in Misc. No. 38 of 2018 by the Additional Judge, Family Court, Agartala. By the said order, the petitioner has been directed to pay the maintenance allowance per mensem @ Rs. 15,000/- to the respondent, who was the petitioner in the Family Court proceeding, which was under Section 125 of the Cr.P.C.

The solitary ground that has been taken in this petition is that the finding of the court below, in respect of the earning of the petitioner is grossly erroneous for the mis-reading of Income Certificate produced by the petitioner in the proceeding under Section 125 of the Cr.P.C. The respondent, as the petitioner in the proceeding before the Additional Judge, Family Court, Agartala, had claimed that the petitioner herein had the monthly salary Rs. 80,000-1,00,000/. Whereas, the petitioner has submitted a salary certificate before the Family Court showing that his monthly gross salary was Rs. 47,173/-, at the relevant point of time. The said certificate, as referred, in the objection filed by the petitioner opposing the prayer for maintenance allowance, has been enclosed with this petition as Annexure-13.

As this court found certain obscurity in the said certificate issued by the employer of the petitioner herein for the month of December, 2018, the petitioner was asked to submit the Form-16 that was generated at the instance of the employer. Today, Mr. K Chakraborty, learned counsel appearing for the petitioner has produced the Form-16 issued under Section 203 of the Income Tax Act, 1961 primarily to locate the tax deducted at source on the salary. From there, it appears that during the assessment year 2019-2020 the income from the period from 01.04.2018-31.03.2019 that the petitioner had received is Rs. 8,89,596/-. Thus, the average monthly income comes to Rs.74,091/-. Thus, there appears a huge discrepancy.

But Mr. Chakraborty, learned counsel has submitted that he has the instruction that for revision of pay during that financial year the petitioner had received the arrear salary and that has resulted in unusual increase in the income. Even after deduction it has been shown in the Employer Certificate that the petitioner was receiving a sum of Rs. 29,784/-. Mr. Chakraborty, learned counsel has further attempted to analyse the liability that the petitioner has to discharge, like payment of loan, as taken by him from the employer.

According to him, after all deductions, the petitioner receives a sum of Rs.13,700/-. Therefore, the direction to pay Rs. 15,000/- per month is absurd, unrealistic and would leave the petitioner in a limbo as he would never be able to comply the said order.

This is the reason what Mr. Chakraborty, learned counsel has contended to show serious prejudice. According to them, it is a gross failure of exercising the jurisdiction as provided under Section 125 of the Cr.P.C.

Mr. Chakraborty, learned counsel has further submitted that while assessing the income of the husband, in order to pay the maintenance allowance to the wife, the relevant factor including the expenditure which the husband is bound to make, are to be taken due care.

In this respect, Mr. Chakraborty, learned counsel has placed his reliance on a decision of the apex court in Bhushan Kumar Meen vs. Mansi Meen @ Harpreet Kaur, reported in (2010) 15 SCC 372. The apex court in Bhushan Kumar Meen (supra) has observed as under:

"6. Having heard the learned counsel for the respective parties, and considering the reality of the situation to the effect that the appellant is receiving a sum of about Rs.9000/- in hand after deduction of various amounts, including the installments towards repayment of the home loan, we are of the view that the amount as awarded by way of interim maintenance is on the high side. At the same time, we cannot also shut our eyes to the fact that at present the respondent wife is not employed or at least there is nothing on record to indicate that she is employed in any gainful work. However, having regard to the qualifications that she possesses, there is no reason why she ought not to be in a position to also maintain herself in the future. Accordingly, we modify the order passed by the learned Magistrate, granting Rs.10,000/- per month to the respondent wife by way of interim maintenance and direct that the appellant husband shall pay to the respondent wife a sum of Rs.5000/- per month instead of Rs.10,000/- and all other terms and conditions, as indicated by the learned Magistrate, will continue to operate."

In reply, Ms. R Majumder, learned legal aid counsel has submitted that the analysis of deduction is grossly improper. Moreover, the total earning per annum cannot be understood by cost analysis as made by Mr. Chakraborty, learned counsel appearing for the petitioner. It cannot be expected that someone who is earning a sum around Rs.74,000/- per month, finally gets Rs.13,700/-. According to Ms. Majumder, learned legal aid counsel appearing for the respondent, the petitioner has been receiving more than 50,000/- per month even after deduction.

But this court finds no basis for this submission. As a result, while examining the question of legality in respect of the impugned order, this court has to do some guess work to find out the sum that comes to the petitioner after deduction or the sum that the petitioner can manage to get in his hand after the statutory deductions. According to this court, that would be around 30,000/- per month, even more than that.

Having observed thus, this court does not find any reason to interfere with the impugned order by which the petitioner has been directed to pay a sum of Rs.15,000/- per month in the mode as directed by the impugned order.

However, both the counsel have submitted in unison that there are two more litigations pending in two different courts, one before the court of the Judicial Magistrate and the other before the Family Court, Agartala. One is in respect of domestic violence and another for the restitution of the conjugal rights at the instance of the petitioner.

This court believes that the Family court shall take up a serious initiative for reconciliation of differences between the petitioner and the respondent forthwith. The initiative for reconciliation be taken by any rate, within 30 days from the date of receipt of the copy of this order.

If any amicable settlement can be struck out by the Family Court, on the basis of that, the dispute as existing between the parties be consigned to final settlement. In that event, this order be merged with the agreement and since this order has been passed by this court, that will not take a special character which cannot be covered by the agreement or by the terms of the settlement.

Ms. Majumder, learned legal aid counsel has submitted that the petitioner has not been paying the maintenance allowance for quite some time. Mr. Chakraborty, learned counsel for the petitioner has assured this court that he will take up the matter with the petitioner, but at the same time he has stated on instruction that arrear is pending.

Be that as it may, Ms. Majumder, learned legal aid counsel may exchange a statement of arrear maintenance allowance to Mr. Chakraborty, learned counsel for the petitioner within a fortnight from today and Mr. Chakraborty, learned counsel would advise his client accordingly. Otherwise, the respondent herein, may unleash an attachment action for recovering that amount.

Subject to the observations made above, this petition stands rejected.

A copy of this order be furnished to the learned counsel for the parties.