2011(2) ALL MR 112
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.S. DALVI, J.
Kishor Shelar Vs. Sheetal Kishor Shelar
Writ Petition No.7363 of 2010
1st December, 2010
Petitioner Counsel: Mr. R. S. APTE,Mr. VAIBHAV PATANKAR
Respondent Counsel: Mr. HEMANT KENJALKAR
(A) Hindu Marriage Act (1955), S.24 - Interim maintenance - Calculation of husband's income - Biggest deduction from husband's salary was towards Voluntary Provident Fund - Due to VPF deduction, husband's salary is reduced to extent which deprives wife of maintenance - Hence only usual deductions must be allowed while calculating salary. (Para 4)
(B) Hindu Marriage Act (1955), S.24 - Interim maintenance - Father of husband is pensioner - Expenses towards niece, nephew cannot be taken as legitimate - Wife though was working earlier is not required to support herself from savings - Amount granted as interim maintenance is reasonable - Petition by husband liable to be dismissed. (Paras 6, 7, 8)
2. The Petitioner is serving with Maharashtra State Road Development Corporation Ltd. The Petitioner did not produce his salary certificate in the lower Court and required his wife to procure information under the Right to Information Act. The application was filed on 11th August, 2008. The husband as well as the wife were initially employed. The wife has since resigned under compelling circumstances. The resignation has been effected from 30th September, 2009. The learned Judge has considered the salary of the Petitioner of October, 2009. The order is passed in July, 2010.
3. The salary certificate of October, 2009 shows his gross earnings to Rs.35,794/- and his gross deductions to be Rs.12,736/-. The Petitioner takes exception to the learned Judge's consideration that month's salary included the arrears of Rs.3,063/- which he claims to deduct.
4. From the various salary certificates produced by the husband it is seen that the husband earns a gross amount of about Rs.30,000/- to Rs.35,000/- in the earlier months. We may take that as his gross earning. However the husband has made certain deductions. The biggest deduction is towards Voluntary Provident Fund (VPF). It is that amount which he voluntarily contributes to his provident fund in addition to the compulsory requirement of deductions from his salary towards provident fund. By deducting the said amount, the husband's salary would be reduced to that extent. That would constitute voluntary deduction to deprive his wife the maintenance. The voluntary provident fund is in a range of Rs.8,000/- to Rs.9,000/- each month. The Petitioner's gross income, therefore, would rise by Rs.8,000/- to Rs.9,000/-. Consequently, his salary would be taken to be at least Rs.38,000/- from which the usual deductions must be allowed. The other usual deductions are in a range of Rs.3,000/- to Rs.4,000/-. This would leave Rs.34,000/- net with the husband towards his salary.
5. The wife was earning as a teacher in Shri. D. D. Vispute College of Education. She appears to have certain disputes with regard to her salary. In a detailed letter of resignation dated 24th September, 2009 she has set out certain malpractices of the institution in payment of salaries. She has, therefore, not resigned of her own accord. She has resigned under constraint. The constraint was upon certain malpractices followed in the institution. Under these circumstances she remained only a home-maker after September, 2009. From October, 2009 only the Petitioner's income would have to be considered as aforesaid.
6. The Petitioner claims further deductions by way of expenses. The expenses are for supporting his parents. That would be a noble expenses. However the Petitioner's father is a pensioner, he is not completely dependent upon the Petitioner. The Petitioner would certainly have to expend some amount for his aged parents.
7. The Petitioner seems to be having an extended family. He claims expenses towards his niece and nephew. The Petitioner must first discharge his initial duty to maintain his wife. Charity begins at home. A family is constituted by the man, his wife and his children. The extended family would include his niece and nephew. His wife cannot be sacrificed or excluded to include them. The learned Judge has correctly considered these aspects. Those expenses cannot be taken as legitimate expenses because he is duty bound to maintain the wife.
8. Learned Counsel on behalf of the Petitioner argued that because the wife was earning earlier she must be taken to have saved some amount and must support herself from the savings. That would be ignoring the statutory duty of the husband to maintain and support the wife. The wife is not required to be supported from her earlier earnings. She is expected to be supported by her husband.
9. Consequently, the Petitioner's salary as computed hereinabove would be required to be considered to grant a reasonable amount as interim maintenance to the wife. The learned Judge has granted her Rs.9,000/- p.m.. That would be out of Rs.34,000/- earned by the Petitioner. Even allowing some amount for the support of the parents, that amount is legitimate, reasonable and proper.
11. The Petitioner has desired to settle the entire dispute upon lumpsum payment to the wife. The Petitioner has made some offer. The wife has to consider the offer. That would be done in the trial Court.