Personal Loan EMI A Part Of Husband's Net Monthly Income For Purposes Of Determining Maintenance Payable To Wife U/S 125 CrPC: Allahabad HC

The Allahabad High Court on Wednesday observed that while determining the monthly maintenance allowance payable to the wife under section 125 CrPC, the payment made by the Husband towards the monthly instalment of personal loan has to be added to his net monthly income.

The bench of Justice Surendra Singh-I added that merely on the ground that a wife is a BA degree holder and has done some professional course, no presumption can be drawn that she is earning sufficient money to maintain herself.

These observations were made by the single judge while allowing a revision plea moved by one Rakhi @ Rekha (wife/revisionist) seeking enhancement of the quantum of maintenance awarded by the Principal Judge, Family Court, claiming it to be on the lower side.

Vide Judgment dated November 1, 2022, the petition under section 125 of the CrPC filed by the wife was allowed, by which the husband was directed to pay her Rs. 5,000/- as a monthly maintenance amount. 

It was the contention of the wife's counsel that her husband (opposite party No.2) is working in the Indian Navy and is getting a monthly salary of about Rs.35,000/- to 40,000/- per month and therefore, the trial court should have fixed at-least 25 % of the net monthly salary of the opposite party No.2 as monthly maintenance to her.

On the other hand, the Counsel for the opposite party No.2/Husband objected to the maintainability of the criminal revision and contended that the revisionist-wife should have filed an application under Section 127 CrPC in the trial Court itself for enhancement of the monthly maintenance amount.

Having heard the counsels for both parties, the Court, at the outset, noted that according to the salary slip of the husband, the gross monthly salary of the husband is Rs.54,684/-, in which a total amount of Rs.20,664/- is deducted and a balance of Rs.34,020 is credited in his account.

The Court further noted that the deduction of Rs.20,664/- includes inter alia for house rent and payment of instalment of a personal loan of Rs.9000/- per month.

In view of this, the Court observed that the deduction of Rs.9000/- per month made for payment to the monthly instalment of the personal loan is not permissible and it should be added to the net monthly income of the husband to calculate the monthly maintenance amount payable to the wife.

Against this backdrop, the Court deemed it fit to consider his net monthly income to be Rs.34020 +Rs.9000/- = Rs.43,020/-.

Further, the Court took note of the Apex Cout ruling in the case of Kalyan Dey Chowdhury vs. Rita Dey Chowdhury Nee Nandy (2017), wherein the Top Court had held that 25% of the husband's net salary would be just and proper to be awarded as maintenance to the wife.

Consequently, the prayer for enhancement of maintenance allowance made by the revisionist wife was allowed and it was ordered that she would be entitled to Rs.10,000/- per month, which is approximately 25 % of the next monthly income of the Husband of Rs.43,020/-, as maintenance allowance.

Case title - Rakhi @ Rekha vs. State of U.P. and Another 2024 LiveLaw (AB) 163

Case Citation: 2024 LiveLaw (AB) 163

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