SAKINABIBI GULABBHAI CHAUHAN Vs. HASAMKHAN MAHIMKHAN

JUDGEMENT

(1.) The petition arises out of the maintenance proceedings taken out by the petitioner-wife for herself and for minor son Aslamkhan. The petitioner-wife claimed maintenance on the ground that she had been treated with cruelty and she was deserted and the Opponent No. 1-husband was not taking care of herself and the minor son. The application was resisted by the opponent-husband. The trial court after appreciation of evidence came to the conclusion that the opponent-husband was earning at least Rs. 500 to Rs. 600 per month and there was no evidence that he had any other liability. His parents were alive but it appeared to the trial court that the parents of the opponent- husband were being taken care of by another brother of the opponent-husband No. 1. The trial court ordered that the opponent-husband should pay an amount of Rs. 120/- per month to the petitioner and an amount of Rs. 80 per month to the minor child 164 Aslamkhan as and by way of maintenance. This order was passed by the trial court on March 31 1982 The opponent-husband felt aggrieved by the aforesaid order and preferred revision application being Criminal Revision Application No. 65 of 1982 in the court of Sessions at Mehsana. The learned Addl. Sessions Judge who heard the revision application confirmed the order of maintenance passed by the trial court but felt that the amount awarded was little excessive. In his opinion the amount of maintenance to be awarded to the petitioner-wife should not exceed 15th of the amount of total income of the opponent-husband. Therefore he directed that the amount of maintenance payable by the opponent-husband be reduced to Rs. 80/- per month from Rs. 120/- per month in respect of the petitioner (wife) and be also reduced to Rs. 50/- per month in respect of minor son Aslamkhan. It is not understood that on what basis the learned Addl. Sessions Judge has found out this formula. There is no such straight jacket formula. The law is that the amount of maintenance should not exceed Rs. 500/- per month in the whole and the amount of maintenance should be determined having regard to the income of the opponent- husband and the mode of living and status of the parties in life. Thus on this point the learned Addl. Sessions Judge has completely erred in following the rule of 1/5th amount of total income of the husband. Further the learned Addl. Sessions Judge has committed an error in taking into consideration the net pay of the opponent. It is an undisputed position that the opponent-husband is serving as a Postman. Without there being any evidence the learned Addl. Sessions Judge observed that the total pay of the opponent was Rs. 480 per month. From this amount he further deducted an amount of Rs. 80 on the basis of the hypothesis that the opponent-husband must be contributing this much amount towards provident fund. First of all there is no evidence to the effect that opponent-husband was contributing anything towards provident fund. Assuming for a moment that the opponent-husband was contributing an amount of Rs. 80/- per month towards provident fund the also this amount cannot be deducted. The opponent-husband is getting this amount deducted as savings from his salary. These savings when accumulated were to be received by him for his own personal benefits. The amount which the opponent-husband saves for himself cannot be deducted from his total income. Thus the learned Addl. Sessions Judge has committed another error while calculating the income of the opponent- husband.

(2.) The learned Magistrate on overall appreciation of evidence rightly came to the conclusion that the income of the opponent-husband was any where between Rs. 500 and Rs. 600. Having regard to the overall circumstances of the case the trial court determined Rs. 120 per month for the petitioner-wife and Rs. 80/- per month for the minor son Aslamkhan as and by way of maintenance. As discussed hereinabove the learned Addl. Sessions Judge has grossly erred in calculation of the income for determining the quantum of maintenance. There was no valid reason whatsoever for him to interfere with the judgment and order passed by the learned Magistrate. In this view of the matter the judgment and order passed by the learned Addl. Sessions Judge Mehsana is required to be quashed and set aside.

(3.) In the result the judgment and order dated August 10 1983 passed by the learned Addl. Sessions Judge Mehsana in Criminal Revision Application No. 65 of 1939 is quashed and set aside. 165 The judgment and order passed by the learned Judicial Magistrate First Class Kalol on March 31 1982 in Criminal Misc. Application No. 53 of 1981 is restored. 4 Rule made absolute accordingly. Rule made absolute