Suresh Kumar Malik v. Nidhi Malik

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported in the Digest? G.S.SISTANI, J. (ORAL) + CM NO.10022/2011 (EXEMPTION) in CM(M) 619/2011

1. Allowed, subject to all just exception.

2. Application stands disposed of.

3. Both parties have assailed the order dated 03.11.2010 passed on 2011:DHC:2901 an application filed by the wife under section 24 of the Hindu Marriage Act, whereby trial court has fixed maintenance @`7,000/ per month. The petitioner (husband) has assailed this order primarily on the ground that trial court has failed to take into consideration that petitioner earns a sum of `31,000/- per month, out of this amount, he has to pay `3500/- per month towards rent, `2000/- towards maintenance of his mother, `3,000/- on conveyance, `7067/- towards re-payment of car loan and `5,000/for maintenance to his child out of his first wife, which leaves a balance of around `4300/- for his survival and thus he would be unable to pay `7,000/- maintenance as fixed.

4. Counsel for the respondent (wife) submits that petitioner (husband) has not given correct break-up and no rent is to be paid by the petitioner (husband) as he is entitled to HRA and further no amount is being spent by him towards maintenance of his mother, as his parents have already filed a suit for injunction against him and thus if the relations are strained, it is not expected that petitioner (husband) would be paying maintenance to his mother. Counsel for the respondent (wife) further submits that amount shown towards re-payment of car loan cannot be considered as a mandatory deduction and if the petitioner (husband) does not have the means, he should not have taken the car on loan.

5. Counsel for the respondent (wife) also submits that at the time of passing of the order, petitioner (husband) had not pointed out that he has to pay `5,000/- towards maintenance of the child from his first marriage.

6. Counsel for the petitioner (husband) submits that order for payment of maintenance `5,000/- of the child from his first marriage, was passed on 18.04.2011, subsequent to filing of the CM(M)No.475/2011 by the wife, praying that the maintenance amount fixed is too meager for her survival, as she (wife) has no source of livelihood and she is solely dependent on this `7,000/and thus the amount should be increased.

7. Counsel for the petitioner (husband) submits that the trial court has fixed maintenance in excess to his salary, as out of the sum of `31,000/- after certain necessary deductions petitioner (husband) would be left barely `2,000/-.

8. Counsel for the petitioner in CM(M)No.619/2011 at this stage, submits that he does not press this petition and wishes to approach trial court by filing a review petition, on account of change of circumstances, as the order for paying maintenance @ `5,000/- to the daughter from the earlier marriage has been passed subsequently. Accordingly, the petition [CM(M)No.619/2011] is dismissed as not pressed, with liberty as prayed for.

9. Upon filing the appropriate petition, the trial court after hearing both the parties, shall dispose of the matter, in accordance with law. CM(M)No.475/2011

10. I have heard counsel for the parties and also perused the impugned order. Taking into consideration the salary of the petitioner which is `31,000/- per month, respondent (husband) works in a government job, thus, it cannot be said that the respondent (husband) has suppressed his true income. Further taking into consideration deductions for conveyance and the order of the maintenance passed in an application filed by the earlier wife and also taking into consideration other expenses, I find no infirmity in the order of the trial court, which would warrant interference under Article 227 of the Constitution of India.

11. Needless to say that in case a review petition is filed by the husband, both parties shall be at liberty to raise all grounds available and the trial court will dispose of the matter unaffected by any observations made by this Court.

12. The CM(M)No.475/2011 is dismissed.