Learned counsel for the appellant submitted that the reduction of interim maintenance by the High Court is contrary to the law laid down by this Court in Kalyan Dey Chowdhury vs. Rita Dey Chowdhury Nee Nandy, (2017) 14 SCC 200 wherein it was held that 25% 3 of the husband’s net salary would be a just amount to be awarded as maintenance to the wife.
Learned counsel further submitted that the husband’s net salary after deductions is Rs.1,24,338/- p.m. and the appellant is entitled to 25% of that amount i.e. Rs.31,084/- p.m. It is also the submission of the learned counsel that the respondent has failed to disclose his correct salary income before the High Court and misled the Court by furnishing wrong facts, on the basis of which the High Court reduced the interim maintenance from Rs.15,000/- per month to Rs.5,000/- per month, granted by the Judicial Magistrate, Sirkali as affirmed by the District and Sessions Judge, Nagapattinam. 10. Per contra, learned counsel for the husband submitted that the salary of his client was meager Rs.31,104/- p.m.
A perusal of the judgment of the original court and the First Appellate Court indicates that the salary slip of the husband for the month of April, 2016 was marked as Exht R-1 where his gross salary is shown as Rs. 1,19,730/- and the net salary is shown as Rs. 31,095/-. Projecting the net salary of Rs. 31,095/-, the husband contended that interim maintenance of Rs. 15,000/- per month would be unbearable as he has other dependents to look after.
On this aspect, the learned courts noted that barring the deductions for Income Tax and PF contribution, the other deductions mentioned in the Exht. R-1, salary slip are not compulsory deductions. Most of those deductions are of the optional category for which the respondent will enjoy future benefits.
The learned District Judge as the First Appellate Court specifically noted that the major portion of the deduction from salary of the respondent is towards loan repayment and these deductions were opted by the respondent to deny adequate interim maintenance to the appellant and to deceive her.
It was further noted that the respondent is working as an Engineer with the Airport Authority of India and he is feigning his incapacity to pay reasonable maintenance of Rs. 15,000/- per month, to his estranged wife.
No acceptable reason is discernible in the impugned judgment to reduce the interim maintenance sum of Rs. 5,000/- from Rs. 15,000/- concurrently fixed by the learned Judicial Magistrate which was affirmed by the First Appellate Court.
It cannot also be overlooked that this Court is considering only interim maintenance for the wife, in the proceedings under consideration.
Keeping the above circumstances in mind, we are of the considered view that the impugned order reducing the interim maintenance passed by the High Court was not merited and the same deserves to be set aside. Consequently, the order passed by the Judicial Magistrate, Sirkali as affirmed by the District and Sessions Judge, stands restored.
The appeal stands allowed to the above extent without any order on cost.
1
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.645 OF 2021
(Arising out of SLP (Crl.) No. 9800 of 2018)
K. KALAISELVI … APPELLANT
Versus
S. SIVARAJ … RESPONDENT
O R D E R
The Court is convened through Video Conferencing.
2. Leave granted. The instant appeal, by way of special leave, is
directed against order dated 10.04.2018 passed by the High Court of
Judicature at Madras in Criminal Revision Case No.1554 of 2017
whereby, the High Court partly allowed the Criminal Revision
Petition filed by the respondent (husband) and reduced the interim
maintenance from Rs.15,000/- per month, granted by the Judicial
Magistrate, Sirkali as affirmed by the District and Sessions Judge,
Nagapattinam, to Rs.5,000/- per month.
3. The brief facts of the case is that the appellant K. Kalaiselvi
and the respondent S. Sivaraj got married in 2013. Pursuant to
differences, the husband filed a Divorce Petition bearing HMOP
No.35/2015 before the Sub-Judge, Chidamabaram and the wife filed
M.C.No.29/2015 under the Domestic Violence Act before the Judicial
Magistrate, Sirkali against the respondent and his relatives.
2
4. The wife further filed CMP No.7098/2015 in M.C.No.29/2015
seeking interim maintenance. The Judicial Magistrate, Sirkali, upon
consideration of the arguments advanced by both sides, directed the
husband to pay the appellant (wife) an interim maintenance of
Rs.15,000/- per month.
5. The husband preferred Crl.A.No.07/2016 before the District and
Sessions Judge, Nagapattinam against the interim maintenance order
but the same was dismissed.
6. Aggrieved by the order of the District and Sessions Judge,
Nagapattinam, the respondent filed Crl.Rev.Case No.1554/2017, which
as discussed above, was partly allowed by the High Court by
reducing the interim maintenance from Rs.15,000/- p.m. to
Rs.5,000/- p.m.
7. Thus aggrieved by the impugned order passed by the High Court,
the wife has approached this Court by way of filing the present
appeal.
8. Heard Mr. G. Sivabalamurugan, learned counsel appearing on
behalf of the appellant and Mr. R. Nedumaran, learned counsel
appearing on behalf of the respondent (husband) at length. Also
carefully perused the material placed on record.
9. Learned counsel for the appellant submitted that the reduction
of interim maintenance by the High Court is contrary to the law
laid down by this Court in Kalyan Dey Chowdhury vs. Rita Dey
Chowdhury Nee Nandy, (2017) 14 SCC 200 wherein it was held that 25%
3
of the husband’s net salary would be a just amount to be awarded as
maintenance to the wife. Learned counsel further submitted that the
husband’s net salary after deductions is Rs.1,24,338/- p.m. and the
appellant is entitled to 25% of that amount i.e. Rs.31,084/- p.m.
It is also the submission of the learned counsel that the
respondent has failed to disclose his correct salary income before
the High Court and misled the Court by furnishing wrong facts, on
the basis of which the High Court reduced the interim maintenance
from Rs.15,000/- per month to Rs.5,000/- per month, granted by the
Judicial Magistrate, Sirkali as affirmed by the District and
Sessions Judge, Nagapattinam.
10. Per contra, learned counsel for the husband submitted that the
salary of his client was meager Rs.31,104/- p.m. Learned counsel
further submitted that no material is adduced by the appellant to
prove that his client is getting the salary of Rs.1,20,000/- p.m.,
after all deductions. It is also the submission of the learned
counsel for the respondent that the appellant is highly qualified
with double PG degree of MA, M.Phil and M.Ed and she herself has
admitted that she was a teacher and she quit a job on her own.
11. A perusal of the judgment of the original court and the First
Appellate Court indicates that the salary slip of the husband for
the month of April, 2016 was marked as Exht R-1 where his gross
salary is shown as Rs. 1,19,730/- and the net salary is shown
as Rs. 31,095/-. Projecting the net salary of Rs. 31,095/-, the
husband contended that interim maintenance of Rs. 15,000/- per
month would be unbearable as he has other dependents to look after.
4
On this aspect, the learned courts noted that barring the
deductions for Income Tax and PF contribution, the other deductions
mentioned in the Exht. R-1, salary slip are not compulsory
deductions. Most of those deductions are of the optional category
for which the respondent will enjoy future benefits.
12. The learned District Judge as the First Appellate Court
specifically noted that the major portion of the deduction from
salary of the respondent is towards loan repayment and these
deductions were opted by the respondent to deny adequate interim
maintenance to the appellant and to deceive her. It was further
noted that the respondent is working as an Engineer with the
Airport Authority of India and he is feigning his incapacity to pay
reasonable maintenance of Rs. 15,000/- per month, to his estranged
wife. No acceptable reason is discernible in the impugned judgment
to reduce the interim maintenance sum of Rs. 5,000/- from Rs.
15,000/- concurrently fixed by the learned Judicial Magistrate
which was affirmed by the First Appellate Court. It cannot also be
overlooked that this Court is considering only interim maintenance
for the wife, in the proceedings under consideration.
13. Keeping the above circumstances in mind, we are of the
considered view that the impugned order reducing the interim
maintenance passed by the High Court was not merited and the same
deserves to be set aside. Consequently, the order passed by the
Judicial Magistrate, Sirkali as affirmed by the District and
Sessions Judge, stands restored.
5
14. The appeal stands allowed to the above extent without any
order on cost.
.......................CJI.
(N.V. RAMANA)
.............…….........J.
(A.S. BOPANNA)
..............…..........J.
(HRISHIKESH ROY)
NEW DELHI;
JULY 19, 2021.
6
ITEM NO.29 Court 1 (Video Conferencing) SECTION II-C
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s).9800/2018
(Arising out of impugned final judgment and order dated 10-04-2018
in CRLRC No.1554/2017 passed by the High Court of Judicature at
Madras)
K. KALAISELVI Petitioner(s)
VERSUS
S. SIVARAJ Respondent(s)
IA No.155202/2018 - PERMISSION TO FILE ADDITIONAL
DOCUMENTS/FACTS/ANNEXURES
Date : 19-07-2021 This matter was called on for hearing today.
CORAM :
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE A.S. BOPANNA
HON'BLE MR. JUSTICE HRISHIKESH ROY
For Petitioner(s) Mr. G.Sivabalamurugan, AOR
For Respondent(s) Mr. R. Nedumaran, AOR
UPON hearing the counsel the Court made the following
O R D E R
The Court is convened through Video Conferencing.
Leave granted.
The appeal stands allowed to the extent indicated in the
signed order without any order on cost.
(SATISH KUMAR YADAV) (R.S. NARAYANAN)
DEPUTY REGISTRAR COURT MASTER (NSH)
(Signed order is placed on the file)
