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S.G. Shah, J.—The applicants herein are the original applicants, whereas Respondent No. 2 herein is the original respondent before the Family Court, Ahmedabad, in Criminal Miscellaneous Application No. 2427 of 2011 preferred by the present applicants claiming maintenance to the tune of Rs. 30,000/- from the Respondent No. 2. By impugned judgment and order dated 02.08.2013, Family Court No. 4, Ahmedabad, has awarded monthly maintenance of Rs. 3,500/- for applicant No. 1, Rs. 4,500/- for applicant No. 2 and Rs. 3,500/- for applicant No. 3 to be paid by the respondent No. 2. The respondent No. 2 and applicant No. 1 are husband and wife, whereas applicants No. 2 and 3 are their minor Sons.
So far as rights and liabilities of the parties are concerned, when the respondent No. 2 being husband has not challenged the impugned judgment, practically, he has accepted his liability to pay the maintenance, and therefore, the reasons for disturbance and separation between the husband and wife are not material at present, and therefore, those minor details of ill-treatment, dissertation and disturbances are not required to be reproduced herein, except referring the materially factual details for considering the quantum of maintenance, since the Revision is filed by the wife and minor children for enhancement of quantum of maintenance only. It cannot be ignored that even in affidavit-in-reply filed by the respondent No. 2, he has though tried to explain that impugned order is proper and not required to be interfered by this Court, it is his statement on oath in paragraph No. 16 of affidavit-in-reply that this Honourable High Court as well as Honourable Apex Court have considered the proper amount of maintenance under Section 125 of the Code as 1/3 amount of the salary of the husband, and therefore, it is his specific statement in the affidavit that the order of the learned Judge, Family Court, Ahmedabad, is just, proper and legal, and that there is no jurisdictional error in passing the order, and thereby, he is requesting and submitting that Revisional powers of the Honourable High Court is limited.
In view of the above facts, before discussing the submissions made by the applicants, it would be appropriate to consider the case of the respondents. It cannot be ignored that by order dated 03.09.2012, Family Court, Ahmedabad, has granted the interim maintenance of Rs. 3,500/- for applicant No. 1, Rs. 3,000/- for applicant No. 2 and Rs. 3,000/- for applicant No. 3 i.e. total amount of maintenance of Rs. 9,500/- per month. Such order has been challenged by the Respondent No. 2 before the High Court by way of filing Criminal Miscellaneous Application No. 15108 of 2012. However, on 26.03.2013, such application for quashing and setting aside the interim order of maintenance has not been pressed by the respondent No. 2 and requested the Court to issue directions to the Family Court to decide Criminal Miscellaneous Application No. 2427 of 2011 within 90 days. The arrear of maintenance, till such order, was, in between, paid by the respondent No. 2. In his affidavit-in-reply, respondent No. 2 has contended that in fact, parties have settled their dispute by arriving compromise in the year 2005 before the mediators belonging to their community and compromise was put on paper on 12.03.2005, and thereafter, they were living peacefully. However, on 29.07.2011, the applicant had started dispute with regard to Bungalow No. 21, Kamal Bunglow situated at Chandkheda where the applicants were residing separately, and which was given to her only in her name by the father of the respondent. Since then, respondent has to pay Rs. 5,000/- per month as rent. However, the applicants have challenged the said amount of rent of Rs. 5,000/- showing that practically the respondent was residing with his brother and rent receipts of Rs. 5,000/- produced only to reduce the amount of maintenance that may be paid to them. It is further contended by the respondent that in fact, brother and father of the applicants are builders and high-handed persons and they have made some illegal construction in the Bungalow, which was objected by the society and for such disturbance, she has in fact locked the bungalow and did not allow the respondent to enter into, and thereby the respondent stayed in Veranda for the whole night and on the next day also, he had to leave the house and purchased new clothes for reaching the office in time and since then practically the applicants who dragged out the respondent from the house where they were residing peacefully, only because of the reason that the house is registered in the name of the applicant No. 1. It is further contended that the father of the respondent is having several difficulties and he was admitted and operated for L4-L5 TLIF, and cost of the treatment was Rs. 4,00,000/-. It is further submitted that he had paid the maintenance amount regularly as awarded by the Family Court, Ahmedabad, and therefore, there is no reason to file such Revision. So far as study of the minor Sons are concerned, they have yet not reached to the standard where they need more expenses. In support of his claim, Respondent No. 2 has produced Notices dated 23.06.2011 and 06.07.2011 issued by the society. The applicants have also relied upon the reply filed by him before the trial Court wherein he has pleaded that in fact the applicant has admitted such facts in her statements dated 19.11.2004 before the Shahibaug Police Station that she owns the Bungalow and that it was given to her by her father-in-law i.e. father of the respondent. In his affidavit-in-reply filed before the trial Court, the respondent has also narrated the fact that the applicant is dominating and that she dragged him out from the house and that he had paid Rs. 30,000/- to her just before such incident, which is with her. It is also contended that for treatment of his father, respondent had to borrow Rs. 3,00,000/- from the family members. The respondent has also produced several documents to show the compromise between the parties as explained therein. However, all such documents are with reference to previous complaint filed by the wife under Section 498(A) of the Indian Penal Code wherein the respondent was acquitted vide judgment and order dated 10.08.2005.
The fact remains that there was disturbance between the parties and when the respondent does not challenge the order of maintenance and on the contrary confirmed his liability, such defences are not material except to consider the fact about quantum or amount of maintenance. It is submitted that at least, the Court may consider that the wife is having an independent house of her own which is otherwise provided by in-laws.
So far as compromise before the mediators of community is concerned, the respondent has probably failed to prove the document on record since signed document is not there, but typed copy without signature of any of the parties is brought on record, and even if we believe that parties have entered into such compromise, it is for a limited purpose to arrive settlement pursuant to the complaint filed under Section 498(A). Since the dispute is settled on 12.03.2005, whereas separation is in the year 2011, the application for maintenance is also preferred in the year 2011, and therefore, even if the settlement between the parties with reference to the previous litigation, it would not hamper or affect any rights of the applicants to claim the maintenance. Even otherwise such compromise could not snatch the legal rights of the litigants to claim the maintenance or to seek appropriate legal reliefs after the date of compromise.
If we come to the issue of quantum of maintenance that may be awarded to the applicants, it is submitted that the respondent No. 2-husband is serving as Teacher in Swastik Vidhyavihar School and getting monthly salary of Rs. 40,000/-. It has been also brought on record that initially respondent was having commercial shop in Krishna Complex, Shahibaug, from which he was getting Rs. 3,000/- rent per month, but he had sold it out for Rs. 25,00,000/-, and when the respondent No. 2 could not rebut such evidence, his version of getting Rs. 3,00,000/- from his family members for treatment of his father could not be believed, and even if we do not consider the rental income on commercial shop shall be, if at all, sold it out, it becomes clear that income of the Respondent No. 2 is certainly more than Rs. 40,000/- per month. The applicants are able to prove the income of the Respondent No. 2 by calling certificates from the Swastik Vidhyavihar School, Ahmedabad. The certificates issued by the principal of the said School confirms that in the month of January 2013, the respondent No. 2 was getting total salary of Rs. 40,334/-; out of which, he was getting Rs. 34,053/- as take home-net salary, after deduction of Rs. 5,000/- for GPF, Rs. 2000/- for Professional Tax, Rs. 1000/- for Income Tax, and Rs. 81/- for Group Insurance. Therefore, except total deduction of Rs. 6,281/-, rest of the amount is received by the respondent No. 2 as his personal benefits, and even if the respondent is to stay in her separate house when he was getting House Allowance of Rs. 4,166/-, the total benefit of salary is certainly of Rs. 35,000/- in all.
As against that, the applicants have produced certain documents to show the expenditure incurred for the study of applicants No. 2 and 3, who are at the relevant time, aged about 14 years and 11 years respectively, wherein the applicant No. 2, namely, Dharmesh being elder Son, the applicant has paid more than Rs. 50,000/- in a year to one Aakash Institute towards his study. Similarly, some receipts are produced for the applicant No. 3 also. Therefore, there is a reason for the applicants to say that considering the growing age of their children and the cost of education, they are in need of more amount towards maintenance i.e. more than of Rs. 11,500/- per month awarded to them out of monthly income of Rs. 35,000/- of the respondent No. 2, which is almost 1/3 of the salary. The unbalance herein is to the fact that for 2/3 expenditure, the maintenance awarded is 1/3 and for 1/3 expenditure, the salary is allowed to be retained by the respondent is of 2/3.
It is obvious that there is no rule of thumb for calculation of the amount of maintenance and quantum of maintenance. However, at the same time, it is settled legal position that maintenance includes several requirements and not just bread and butter. It is also clear that so far as maintenance of the applicants No. 2 and 3 are concerned, it would be for a limited period till they become major, but till then the cost of disturbance between the parents, their lives and higher study should not be suffered only because of quarrel between the parents. Therefore, it would be appropriate to enhance the maintenance to some extent.
It would be appropriate to recollect some decisions of the Apex Court on the subject.
9.1. In the case of Shail Kumari Devi and Another Vs. Krishan Bhagwan Pathak @ Kishun B. Pathak, , wherein though wife was residing in the house belonging to respondent-husband and though she was receiving income from the land in her possession, which was belonged to her husband, out of salary of Rs. 10,000/-, when the High Court reduced the amount of maintenance to Rs. 750/- for each appellant and two minor daughters, the Supreme Court has enhanced it to Rs. 2,000/- for wife and Rs. 1,000/- for minor daughters as awarded by the Family Court.
9.2. In the case of Chaturbhuj Vs. Sita Bai, the High Court has held that deserted wife is entitled to maintenance and the expression "unable to maintain herself" does not mean that wife must be absolutely destitute before she can apply for maintenance under Section 125 of the Code Criminal Procedure.
9.3. In the case of Jayanta Kumar Laha v. Kabita Laha reported in 1994 SCC (Cri.) 1749, the Supreme Court has enhanced the amount of maintenance from Rs. 600/- per mensem to Rs. 1,600/- per mensem though the gross salary of husband was only Rs. 5400/-.
9.4. In the case of Sipra Bhattacharyya Vs. Dr. Apares Bhattacharyya, , the High Court has enhanced the amount of interim maintenance in pending divorce proceedings from Rs. 4,000/- to Rs. 7,000/- when the trial Court has failed to consider her application for such enhancement.
9.5. In the case of S. Jayalakshmi (Mrs) v. T. Prakash Rao (1996) 8 SCC 501, when the daughters were studying in engineering and 12th standard, the amount of maintenance was increased by the Supreme Court from Rs. 50 per month to Rs. 1,000/- per month. When husband was serving as Assistant Engineer, the Supreme Court has also directed the husband to deposit Rs. 30,000/- in the name of each daughters and to pay Rs. 1,00,000/- at the time of their marriage.
9.6. In the case of Bhushan Kumar Meen Vs. Mansi Meen @ Harpreet Kaur, , when husband''s salary was Rs. 35,000/-, the Supreme Court has confirmed the interim maintenance as Rs. 5,000/- for wife alone.
If we consider the unit system like awarding compensation, in all there would be 6 units. Two units for the applicant No. 1, whereas one unit to each applicants No. 2 and 3 and two units for respondents, thereby, out of 6 units of all the income, the applicants are entitled to 4 units. However, in absence of any such specific settled legal position instead of awarding 2/3 maintenance from the salary as maintenance, it would be at least appropriate to award 50% amount of the income of the Respondent No. 2-husband as maintenance for three persons i.e. applicants No. 1, 2 and 3. It is obvious that so far as maintenance of applicants No. 2 and 3 are concerned, it would be for a limited period i.e. 4 years for applicant No. 2 and 7 years for applicant No. 3. But for the applicants No. 2 and 3, they need maintenance for better education and better growth. Therefore, total financial benefits to the respondent from his salary is at least Rs. 35,000/-, and that there may be some other incomes from the commercial property held by the respondent. Considering the fact that take home salary is only Rs. 30,000/- per month and the applicants do not have their residential accommodation, it would be just and proper to enhance of maintenance amount from Rs. 11,500/- to Rs. 15,000/- per month, and thereby, Rs. 5,000/- to each applicants.
Therefore, present Criminal Revision Application is partly allowed. The impugned judgment and order dated 02.08.2013 passed by the Family Court No. 4, Ahmedabad, in Criminal Miscellaneous Application No. 2427 of 2011, is hereby modified in the following terms; considering the fact that once the applicants No. 2 and 3 become major, liability of the Respondent No. 2 to pay the maintenance to them would practically come to an end:
(1) The Respondent No. 2 is liable and shall pay Rs. 5,000/- to each applicants for maintenance till applicant No. 2 becomes major.
(2) The Respondent No. 2 is liable and shall pay Rs. 7,000/- to each applicants No. 2 and 3 till applicants No. 2 and 3 become major.
(3) The Respondent No. 2 is liable and shall pay Rs. 10,000/- towards maintenance of applicant No. 1 after applicants No. 2 and 3 becomes major.
However, in case of any change of circumstances, both the parties are at liberty to apply before the trial Court for redressal of the grievance. In that case, the trial Court is free to decide such application relying upon the evidence available at that time and in accordance with law, without being influenced by any of the observations and directions contained in this judgment.
With the aforesaid directions, present Criminal Revision Application is partly allowed. Rule is made absolute to the above extent.