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Promila Nangia Vs. Baldev Raj Nangia - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 403 of 1988
Judge
Reported in38(1989)DLT198
ActsCode of Civil Procedure (CPC), 1908 - Sections 115; Hindu Marriage Act, 1955 - Sections 24
AppellantPromila Nangia
RespondentBaldev Raj Nangia
Advocates: Ashok Kumar and; Anil K. Kher, Advs
Excerpt:
.....to rs. 1000 per month. - - in the year 1978-79 and she bad been working since then. j observed 'that in deciding as to what should be the maintenance which should be payable, there should be a starting point'.after analysing decisions on this point the learned judge came to the conclusion that 'one-third is a good and rational starting point, remembering that it is not an inflexible ruler but only a starting point'.on the facts of that case the maintenance of rs......prayed for enhancement to the extent of rs 1000.00 . (3) the case of the respondent before the addl. district judge was that after deductions he was getting a pay of rs. 1400.00 p.m. it was also asserted that the petitioner had inherited business from her father and she had completed her secretarial course from y.w.c.a. in the year 1978-79 and she bad been working since then. (4) the trial court noted that the parties did not press the application for some time. he also observed that the respondent has not been able to give the name of any institution or organisation in which the petitioner is alleged to have been working, (5) according to the add). district judge the net salary of the husband is rs. 5055.00 and after deducting income tax and permissible deductions the amount came to.....
Judgment:

B.N. Kirpal, J.

(1) This is a revision petition filed against the order dated 12th July, 1988 whereby the Addl. District Judge, Delhi has disposed of the application under Section 24 of the Hindu Marriage Act filed by the petitioner for enhancement of maintenance pendente lite.

(2) The petition for maintenance was initially filed in September, 1985 and it was directed that the petitioner should get Rs. 550.00 as maintenance per month. The petitioner prayed for enhancement to the extent of Rs 1000.00 .

(3) The case of the respondent before the Addl. District Judge was that after deductions he was getting a pay of Rs. 1400.00 p.m. It was also asserted that the petitioner had inherited business from her father and she had completed her secretarial course from Y.W.C.A. in the year 1978-79 and she bad been working since then.

(4) The trial court noted that the parties did not press the application for some time. He also observed that the respondent has not been able to give the name of any institution or organisation in which the petitioner is alleged to have been working,

(5) According to the Add). District Judge the net salary of the husband is Rs. 5055.00 and after deducting income tax and permissible deductions the amount came to Rs. 3600.00 The Addl. District Judge enhanced the maintenance from Rs. 550.00 p.m. to Rs. 650.00 p.m.

(6) Aggrieved by the aforesaid order the present revision has been filed. The contention of the learned counsel for the petitioner is that on a salary of Rs. 3600.00 p.m., computed after deducting permissible deductions, the Addl. District Judge ought to have awarded about 1/3 of the net salary as maintenance. Learned counsel refers and relies upon the decision of this Court in Devi Dutt Singh v Ra]nl Gandhi AIR 1984 Delhi 320.

(7) In Devi Dutt Singh's case the wife was a teacher in a school and it was found that she was having an income of Rs. 1270.00 p.m. The husband had an income of Rs. 2344.00 In that case the trial court awarded Rs. 600.00 p.m. as maintenance. The husband challenged that decision and Avadh Behari.J observed 'That in deciding as to what should be the maintenance which should be payable, there should be a starting point'. After analysing decisions on this point the learned Judge came to the conclusion that 'One-third is a good and rational starting point, remembering that it is not an inflexible ruler but only a starting point'. On the facts of that case the maintenance of Rs. 600.00 p.m. was upheld by this court.

(8) Learned counsel for the respondent has bi ought to my notice an order passed by P.K. Bahri.J. on 28th October. 1987 in Cr 1032/85 in which order it has been observed that 'The maintenance allowance should be usually granted to the extent of one-fifth of the salary to the wife'. It is pertinent to note that the decision of Avadh Behari.J in Devi Dutt Singh's case was not brought to the notice of P.K. Bahri.J. In a reasoned judgment Avadh Behari, J. has concluded that one-third of the salary which is being received by the husband is the starting point. The amount of maintenance which may be awarded can be more or less, depending upon the circumstances of each case. I find no support for the conclusion arrived at by P.K. Bahri, J. that the maintenance allowance which should be granted should be only to the extent of one fifth. There can be no mathematical basis in calculating the amount of maintenance which should be allowed. What has to be awarded must necessarily depend upon facts of each case. The Court has to take the totality of the circumstances into consideration and then find a just and equitable solution to very vexed problem.

(9) In the present case the respondent has not been able to show that the petitioner is earning any income. Merely alleging that she has inherited business after the death of her father does not amount to any proof of her earning any livelihood. It is not denied that the petitioner has two brothers. According to the learned counsel for the petitioner the father of the petitioner made a Will whereby the property was bequeathed to the brothers of the petitioner, and a suit regarding partition of the same is pending in this Court. It is alleged by the petitioner's counsel that the petitioner has only been granted a right of residence in the property. Be that as it may, there is no evidence on record, prima facie or otherwise, which can lead one to the conclusion that the petitioner has any source of income, independent of maintenance which was being provided by the respondent-husband.

(10) The respondent is a high Naval Officer getting a gross salary of Rs. 5055.00 . According to the learned counsel for the respondent the respondent's take-home pay is only Rs. 1760, as per the salary certificate dated 23rd May, 1988. The Addl. District Judge, however, has computed, on the gross salary of Rs. 5055.00 , the net salary of Rs. 3600.00 after taking into account the permissible deductions. I see no reason to adopt a figure different from that which has been arrived at by the Addl. District Judge Delhi.

(11) Proceeding on the basis that the disposable salary of the respondent is Rs 3600.00 p.m., and also for the reason that the petitioner is not earning any income, and applying the ratio of the decision in Devi Dutt Singh's case, I think it will be fair and equitable that the petitioner should be awarded maintenance of Rs. 1000.00 p.m.

(12) I might at this stage notice a contention by the learned counsel for the respondent to the effect that the revision of pay of the respondent took place with effect from 1st January, 1987 and it is from that date that he started getting a salary of Rs. 5055.00 p.m. In that view of matter, the enhanced maintenance should be allowed to the petitioner only with effect from 1st January, 1987.

(13) For the aforesaid reasons the petition is allowed, the order dated 12th July. 1988 passed by the Addl. District Jude, Delhi is modified and the maintenance of the petitioner is enhanced to Rs. 1000.00 w.e.f 1st January, 1987. The arrears of maintenance should be paid by the respondent to the petitioner before the final arguments on the divorce petition are beard.

(14) Parties to bear their own costs.


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