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Deepak Shukla v. Smt. Savita Shukla
Structured Summary of the Opinion (Revision against order dated 9.9.1997)
Factual and Procedural Background
This revision challenges the order dated 9.9.1997, passed by the 1st Additional District Judge, Jabalpur, in Civil Suit No. 2A/96. The trial court ordered the applicant to pay the non-applicant Rs. 2,500 per month as maintenance pendente lite for the period June 1994 to September 1997. The trial court also awarded Rs. 200 for the non-applicant's appearance in Court on each date she appears, travelling expenses for her and one attendant by rail, and a lump sum of Rs. 5,000 for expenses incurred during the pendency of the suit, including counsel's fees.
The applicant filed the present revision under Section 24 of the Hindu Marriage Act (challenging interim maintenance awarded under that provision), contending that the amount awarded was excessive. The applicant relied in part on an earlier order dated 5.9.1995 by an Additional Chief Judicial Magistrate under Section 125 of the Code of Criminal Procedure (which had awarded Rs. 500 per month to the non-applicant), alleging that that criminal-court award was not taken into account by the trial court. The trial court had calculated the applicant's gross salary at Rs. 9,295 per month and treated Rs. 7,000 per month as the amount available to him after deductions (the applicant asserted a lower take-home pay on the basis of pay-slips). The revisional court considered the material on record, the applicant's pay-slips, the earlier CrPC order, and the conduct of the parties before making modifications to the impugned order.
Legal Issues Presented
- Whether the interim maintenance amount (Rs. 2,500 per month) awarded by the trial court under Section 24, Hindu Marriage Act, is excessive and liable to be reduced.
- Whether an earlier maintenance order under Section 125, CrPC (award of Rs. 500 per month dated 5.9.1995) needed to be taken into account and adjusted against the interim maintenance awarded under Section 24 of the Act.
- Whether the applicant's claimed take-home salary (as argued through pay-slips) justified reducing the interim maintenance, and whether the trial court's finding on the applicant's disposable salary was acceptable.
- Whether the conduct of the non-applicant is a relevant factor for determining interim maintenance and, if so, whether it warranted reduction of the amount.
- Whether the daily appearance cost/travel allowance (Rs. 200 per appearance and travel expenses for the non-applicant and an attendant by rail) awarded by the trial court should be interfered with.
Arguments of the Parties
Applicant's Arguments
- The applicant contended that the trial court failed to account for an earlier order dated 5.9.1995 by the Additional Chief Judicial Magistrate under Section 125 CrPC awarding Rs. 500 per month to the non-applicant; that prior liability ought to reduce any interim maintenance awarded under Section 24 of the Hindu Marriage Act.
- The applicant's counsel asserted the applicant's take-home salary was only Rs. 4,993 per month (based on pay-slips) and that directing payment of Rs. 2,500 per month plus arrears would leave him with insufficient funds, in view of his family obligations (he has his mother to maintain).
- The applicant argued that the conduct of the non-applicant is a relevant consideration in fixing interim maintenance and that the wife’s conduct (as set out in pleadings and statements) was unwarranted; counsel relied on Smt. Jasbir Kaur Sehgal v. District Judge, Dehradun & Ors. (AIR 1997 SC 3397) as authority that conduct can be relevant.
- The applicant contended that the rate of Rs. 200 per day for the non-applicant's appearance and travel expenses was excessive and might encourage unnecessary court appearances, causing harassment to the applicant.
Non-applicant's Arguments
- The non-applicant's counsel argued that the revisional court should not interfere with the trial court's exercise of discretion under Section 24 of the Hindu Marriage Act by invoking Section 115 of the Civil Procedure Code; neither error of law nor error of fact were proper grounds for interference under Section 115 in this context.
- It was submitted that interim maintenance under Section 24 is determined on the basis of applications and affidavits without recording evidence, and the trial court had exercised discretion after considering facts and circumstances; that discretion should not be lightly disturbed.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Smt. Jasbir Kaur Sehgal v. District Judge, Dehradun & Ors., AIR 1997 SC 3397 (also cited as II (1997) DMC 338 (SC)) | That the conduct of the parties could be a relevant consideration while awarding maintenance. | The revisional court applied this principle by considering the conduct of the non-applicant as a relevant factor and reducing the interim maintenance amount from Rs. 2,500 to Rs. 1,500 per month. |
| Rathvendra Singh Choudhary, Jabalpur v. Seema Bai, 1998 MPLJ 450 | The opinion references this Court's decision; no specific rule or principle from this case is detailed in the provided opinion. | The decision was cited by the applicant's counsel; the revisional court noted the reference but the opinion does not state any specific reliance or detailed application of the case's holdings. |
Court's Reasoning and Analysis
The court proceeded through a sequential analysis of the contested elements, applying the material on record and the parties' submissions as follows:
- Income and pay-slips: The court examined annexed pay-slips (Annexure A1 for August 1997 and Annexure A10 for October 1994). Although Annexure A1 showed a take-home salary of Rs. 4,993 out of gross emoluments of Rs. 9,295, the court found an unexplained deduction (described as "Professional Tax Mis. Rec.") of Rs. 2,255 which could not plausibly be professional tax. Annexure A10 also showed deductions. Because the applicant failed to provide an item-wise explanation of deductions from gross salary in response to the Section 24 application, the court declined to accept the low take-home figure based solely on two pay-slips.
- Acceptance of trial court's salary finding: The trial court had found gross salary Rs. 9,295 and held that Rs. 7,000 per month was available to the applicant after allowing for income tax, professional tax and other deductions. Although the revisional court acknowledged that this conclusion involved some guess-work rather than exact calculation, it held that the applicant was responsible for the lack of clarification and therefore the revisional court would not interfere with the trial court's finding absent material irregularity. Hence the court accepted the trial court's treated salary of Rs. 7,000 per month for the purpose of assessing maintenance.
- Failure to account for earlier CrPC order: The court observed that the trial court's order did not mention the earlier order dated 5.9.1995 by the Additional Chief Judicial Magistrate (the opinion refers to that court as "Katni" at para 3 and later also as "Kami" at para 7), which had imposed a liability of Rs. 500 per month on the applicant under Section 125 CrPC. Because that criminal-court liability pre-existed, the revisional court held that, if the applicant had paid the Rs. 500 per month pursuant to that order, that amount should be adjusted against the interim maintenance awarded under Section 24 of the Act.
- Conduct of the parties: The court reviewed the record and concluded that there was "great bitterness" between the parties and that the non-applicant's conduct appeared "full of acrimony and anger." Relying on the principle identified in Smt. Jasbir Kaur Sehgal (that conduct may be a relevant consideration), the revisional court found that the conduct of the non-applicant could properly be taken into account in fixing the quantum of maintenance.
- Adjustment of maintenance quantum: Balancing the trial court's assessment of disposable income (Rs. 7,000 per month), the absence of an adequate explanation of pay-slip deductions, the omission of the earlier Rs. 500 CrPC order from the trial court's calculus, and the relevance of the non-applicant's conduct, the revisional court concluded that the trial court had erred in fixing Rs. 2,500 per month. The revisional court reduced the interim maintenance to Rs. 1,500 per month for the period June 1994 to September 1997.
- Travel and appearance allowance: As to the Rs. 200 per appearance and travel allowance for the non-applicant and attendant by rail, the revisional court accepted the trial court's reasoning that a companion accompanies the non-applicant and that rail fare could legitimately amount to the award made; the revisional court found no reason to interfere with that part of the order. The revisional court also observed that it cannot determine when the non-applicant's presence is necessary and that the non-applicant herself must decide which hearings require her attendance.
- Expenses pendente lite (Rs. 5,000): No argument was advanced before the revisional court regarding the lump-sum grant of Rs. 5,000; the opinion records the absence of argument and does not disturb that part of the order.
Holding and Implications
Core Ruling: This revision is partly allowed. The impugned order dated 9.9.1997 is modified to reduce the interim maintenance payable by the applicant to the non-applicant from Rs. 2,500 per month to Rs. 1,500 per month for the period June 1994 to September 1997.
Implementation and immediate consequences:
- The applicant is directed to pay Rs. 1,500 per month (instead of Rs. 2,500) for the specified period as monthly instalments.
- If the applicant has already been paying Rs. 500 per month pursuant to the earlier order of the Additional Chief Judicial Magistrate dated 5.9.1995 (Misc. Cr. Case No. 161 of 1994), he may apply to the Trial Court with receipts of amounts paid or deposited in the Criminal Court; the Trial Court is to adjust those payments when fixing monthly instalments.
- The revisional court did not interfere with the trial court's award of Rs. 200 per appearance/travel allowance or with the lump sum of Rs. 5,000 for expenses pendente lite (no argument was advanced against the latter).
Broader implications: The opinion does not set out any new legal precedent beyond applying the established principle that the conduct of the parties can be relevant in fixing maintenance and reaffirming the limited scope for interference with trial-court discretion under Section 115 CPC. The decision's practical effect is confined to modification of the relief between these parties and instructions for adjustment of any amounts already paid under the prior CrPC order.
1. This revision is directed against the order dated 9.9.1997, passed by 1st Additional District Judge, Jabalpur, in Civil Suit No. 2A/96, whereby the applicant is directed to pay Rs. 2,500/- per month, to the non-applicant, towards maintenance pendente lite for the period from June, 1994 to September, 1997. The non-applicant was also granted Rs. 200/- for her appearance in the Court on each date in which she appears, and travelling expenses for to and fro journey, for herself and her one attendant, who accompanies her in the said journey by Railways. A further sum of Rs. 5,000/- was also granted by the Trial Court to the non-applicant for the expenses incurred by her during pendency of the suit, including the cost of the Counsel.
2. In this revision, filed by the applicant, against the order under Section 24 of Hindu Marriage Act, (henceforth 'the Act'), the grievance of the applicant is that an excessive amount was awarded in two consolidated cases, one under Section 9 of the Act and another under Section 13 thereof, for a decree of divorce, filed by the applicant.
3. The first contention of the learned Counsel for the applicant is that there is an order dated 5.9.1995 passed by the Additional Chief Judicial Magistrate, Katni, under Section 125 of the Code of Criminal Procedure. In that case, Rs. 500/- per month has been awarded to the non-applicant by way of maintenance. The award of maintenance under Section 125 of the Code of Criminal Procedure against the applicant was not taken into account while considering the grant of maintenance under Section 24 of the Act.
4. Secondly, the learned Counsel for the applicant contended that the take- home salary of the applicant is only Rs. 4,993/- per month and, therefore, payment of Rs. 2,500/- per month by the applicant, in adition to the arrears incurred during the pendency of the suit, would render him without any money. He has his mother to maintain and, therefore, the amount is excessive. The learned Counsel for the applicant further contended that in allowing the application under Section 24 of the Act, conduct of the non-applicant is a relevant factor for determining the interim maintenance during the pendency of the cases under the Act. The learned Counsel for the applicant took me through the allegations made by the wife in her reply as well as in her statement for showing that the conduct of the non-applicant was unwarranted. Hereferred to a decision of Supreme Court in Smt. Jasbir Kaur Sehgal v. District Judge, Dehradun & Ors., reported in AIR 1997 SC 3397, II (1997) DMC 338 (SC), in which Their Lordships of the Supreme Court observed that conduct of the parties could be a relevant consideration. The attention of this Court was also drawn to a decision of this Court in the case of Rathvendra Singh Choudhary, Jabalpur v. Seema Bai, reported in 1998 MPLJ 450.
5. On the other hand, the learned Counsel for the non-applicant argued that the impugned order does not call for interference by this Court in exercise of its power under Section 115 of the Civil Procedure Code. Neither the error of law nor the error of fact can be looked into under Section 115 of the Civil Procedure Code. The determination of the interim maintenance under Section 24 of the Act is on the basis of applications and affidavits. No evidence was recorded and, therefore, the amount determined was based on the discretion of the learned trial Judge, looking to the facts and circumstances of the case. This discretion should not be lightly interfered with under Section 115 of the Civil Procedure Code.
6. It appears that the applicant is employed as a Deputy Manager in M.P. State Industrial Development Corporation. Annexure A1 was his pay-slip for the month of August, 1997 and another pay-slip is Annexure A10, for the month of October, 1994. It is true that in Annexure Al, the take-home salary of the applicant is shown to be Rs. 4,993.00 out of the total emoluments received by the applicant, being Rs. 9,295.00, but in the last item mentioned as Professional Tax Mis. Rec, shows a deduction of Rs. 2,255.00. The professional tax could not be so high as to include that amount. The professional tax would be at the most Rs. 1,000/- per year. Therefore, it is not clear under what head this amount is deducted. Similarly, in the last column of Annexure A10, the pay-slip of the applicant, for the month of October, 1994, Rs. 544.00 have been shown to be deducted. Therefore, it is very difficult to adopt the contention of the learned Counsel for the applicant that take-home salary of the applicant would be Rs. 4,993/-. Since no attempt was made by the applicant in his reply to the application under Section 24 of the Act to give item-wise deductions of the amounts from the gross salary of the applicant, per month, to the Appellate Court, this Court cannot reduce the amount automatically on the basis of two pay-slips filed by the applicant. The Trial Court has held gross salary of the applicant to Rs. 9,295/- per month and has held that the salary of the applicant which he could make use of, would be Rs. 7,000/- per month. For this purpose the Court below has considered the fact that the applicant was required to pay income- tax as well as the professional tax and there would be other deductions. No doubt, this conclusion of the Trial Court is based on guess-work and not on the basis of actual calculation, but the applicant is, therefore, liable to be blamed for this rather than the Court. It was for the applicant to explain that how the deductions out of Rs. 9,295/- could be made and then take-home salary came to Rs. 4,993/- per month. It is very difficult to believe that the person earning Rs. 9,295/- per month would get his salary reduced to a sum of Rs. 4,993/- per month, by making various deposits which are not of compulsory in nature. Therefore, the Trial Court rightly deter- mined a deduction of Rs. 2,000/- per month from the gross salary of the applicant, holding it to be the compulsory deposits which the applicant would be compelled to make; and rest of the amount of salary was treated by the Trial Court to be the amount in the hands of the applicant, per month. This Court does not find any ma terial irregularity or illegality for interfering with the finding of the Court below, in the impugned order.
7. The next question is in respect of the interim maintenance, awarded by the Trial Court in favour of the non-applicant. In this regard, the take-home salary of the applicant being Rs. 7,000/- per month, there appears to be an error on the part of the Trial Court in determining Rs. 2,500/- per month as the amount of interim maintenance payable to the non-applicant. However, there are circumstances which were not considered by the Trial Court regarding the fixation of amount. It appears that the order dated 5.9.1995, passed by the Additional Chief Judicial Magistrate, Kami, in the proceedings under Section 125 of the Code of Criminal Procedure, was not brought to the notice of the Court below. Therefore, there is no mention of it in the impugned order. The Additional Chief Judicial Magistrate, Katni, by the order aforesaid, had already ordered the applicant to pay Rs. 500/- per month to the non-applicant from the date of that order, i.e. 5.9.1995. The liability of Rs. 500/- per month is imposed upon the applicant by an earlier order of the Criminal Court. It would, therefore, be necessary to adjust that amount, if paid by the applicant, out of the amount determined for payment of interim maintenance to the non-applicant.
8. In the opinion of this Court, the documents on record show that the applicant is facing a number of cases filed by the wife. It is also clear from the various order-sheets and replies filed that there is great bitterness between the parlies in the matrimonial case pending before the Court. There are two other cases pending before the other Courts. Whatever the past conduct of the applicant before the quarrel arose between the husband and the wife, the conduct of the wife seems to be full of acrimony and anger. It is not necessary to cull out the allegation against the non-applicant or the applicant from the record lest the cases of the parties be prejudiced. However, the conduct of the applicant and her Counsel is not such as it could not be taken into account for determining the quantum of maintenance.
9. In the opinion of this Court, looking to the conduct of the non-applicant which has been said to be a relevant factor while awarding maintenance, in the case of Smt. Jasbir Kaur Sehgal (supra), this Court is of the view that the amount of maintenance, granted by the impugned order, by the Trial Court to the non- applicant, should be reduced to Rs. 1,500/- from Rs. 2,500/- per month. Accordingly, the impugned order is modified to that extent.
10. The learned Counsel for the applicant stated that the amount of Rs. 200/- directed to be paid by the applicant towards cost of each day, of the appearance of the non-applicant in Court is just double of that the non-applicant was required to spend in coming to the Court at Jabalpur from Kami. The Trial Court has considered that the applicant shall be accompanied by a companion and, therefore, the will be required to spend not only on herself but also on her companion too. Therefore, even the rate of railway fare being double in this case, for a person to make journey from Kami to Jabalpur, there can be no interference with the impugned order. The learned Counsel for the applicant says that in this way, if the non-applicant is granted Rs. 200/- for her journey from Katni to Jabalpur, she would come to the Court on each and every hearing, causing harassment to the applicant. It cannot be determined by this Court when the presence of the non- applicant is necessary in the Court. It is the non-applicant who has to determine as to on which day of hearing she is required to be present in Court at Jabalpur, for her purposes, or on which day of hearing she does not require to do so. In view of this matter, there is no merit in the contention of the learned Counsel for the applicant in this regard.
11. No argument was advanced regarding grant of Rs. 5,000/- towards expenses pendente lite to the non-applicant.
12. As a result of the aforesaid discussion, it is hereby directed that the applicant shall pay to the non-applicant Rs. 1,500/- (Rupees one thousand five hundred) by way of maintenance from June, 1994 till September, 1997 as monthly instalments, instead of Rs. 2,500/- as granted by the Trial Court in the impugned order, in this regard. In case, the applicant has already paid Rs. 500/- per month to the non-applicant as per the order of Addl. Chief Judicial Magistrate, Katni, dated 5.9.1995, in Misc. Cr. Case No. 161 of 1994, then he shall apply to the Trial Court for reducing the monthly instalments with the receipts of the amounts he had already paid or deposited in the Criminal Court. The Trial Court shall, accordingly, adjust the amount for fixing the monthly instalments.
13. For the foregoing reasons, this revision stands partly allowed to the extent indicated above and the impugned order dated 9.9.1997 is modified accordingly.
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