D.G.R.PATNAIK, J. - (1.) This application has been filed by the petitioner against the order dated 22.3.2005 passed by the Family Court, Dhanbad, in M.P. Case No. 111 of 2004, in a proceedings under Section 125, Cr PC initiated on the basis of the application filed against him by his wife namely the opposite party No. 2 claiming a sum of rupees nine thousand for maintenance of herself and for her two minor school going children.
(2.) BY the impugned order, learned Court below has directed the petitioner husband to pay maintenance amount of rupees fifteen thousand per month, out of which two minor children are to get rupees four thousand each, and the remaining amount of rupees seven thousand to be availed by the opposite party. The petitioner has assailed the impugned order on the ground that the order was passed without giving an opportunity of hearing to the petitioner. Learned Counsel explains that the claim for maintenance was initially made for rupees nine thousand only. Thereafter evidence were allowed to be adduced and on the date of hearing, the opposite party filed a petition for amendment of her original application to allow her to enhance the claim of maintenance from rupees nine thousand to fifteen thousand. Though a copy of the petition was served on the petitioner, but no opportunity was given to him to submit his rejoinder to the prayer for amendment of the claimed amount. Learned Counsel further submits that the Court below has failed to consider that the take -home monthly salary of the petitioner even on the date the impugned order was passed was Rs. 19,928/ - only after all deductions, though his gross salary was Rs. 35,000/ - per month. Besides the statutory deductions and deduction towards loan obtained by the petitioner for the medical treatment of his father, the amount of salary left with them is less than Rs. 20,000/ per month. It is argued that the Court below has considered the gross salary ignoring the fact that the take -home salary is much less. It is further submitted that admittedly, the opposite party is gainfully employed and derives from employment a monthly income of more than rupees seven thousand and five hundred.
(3.) ON the other hand, learned Counsel for opposite party while controverting the grounds of the petitioner, submits that it is true that initially the opposite party in her prayer for maintenance has claimed a total sum of rupees nine thousand for herself and for her two minor children, but considering the expenses of the family, she has sought Rs. 15,000/ - per month. Learned Counsel explains that on the same date when the petition was filed for enhancement of the amount, the opposite party was also examined and an opportunity to the petitioner was given for cross -examining her on all aspects of her claim including the claim of Rs. 15,000/ -. It is further submitted that even under financial constraints, the opposite party has been bringing up her two minor children and her daughter has qualified for her admission to IIT and on her admission, she would be in need of at least rupees one lakh per year towards her education and this amount cannot be borne by the opposite party with the meager amount of her salary and an inadequate amount of maintenance received from her husband.;