Father Can't Escape Duty To Maintain Children Citing Loan Repayments, EMI Commitments: Gujarat High Court

The Gujarat High Court has held that payment of EMI or loan repayment by the father cannot reduce his liability to maintain his children, adding that he has to provide for expenses towards food, clothing, residence, medical needs of the children and even tuition expenses. In doing so the court directed the father to maintain his three minor triplets from his first marriage, along with his other dependents. Justice Gita Gopi in her order held:"Having noticed in the judgment of Deepa Joshi (supra), that deduction arising out of financial commitment such as loan repayment cannot be placed on the same footing as necessary expenditure so as to substantially reduce the liability of the maintenance, considering the fact that the father in the present case has been not ordered to pay for the maintenance amount for his first wife, but his liability to maintain the child cannot be subordinate to any such financial arrangement of paying EMI or loan repayment. The father cannot deny payment for the food, clothing, residence, medical need of the children, even the tuition expenses. The father has to proportionally bear the expense. The dependents for respondent would be the three applicant children, his second wife and his son from second marriage. The mother of respondent–father is having her pension income, thus excluding her with the respondent–father, the total unit would be six. Considering the father income as Rs.14,600/- from the notification dated 16.07.2019, individual unit would have the share of Rs.2433.33 paise. Since the prayer was made to enhance the maintenance amount from Rs.1800/- to Rs.3,000/-. The same prayer is allowed from the date of notification of the father's salary i.e. 16.07.2019. Each applicant – child would be entitled for support amount of Rs.1,000/- each, from that day. The amount already paid would be appropriated accordingly". The ex wife of the husband had filed a plea before the Magistrate court for her three children seeking maintenance from the father under Section 125 Cr.PC. The magistrate court ordered the father to pay Rs.1800 to the mother per month.Thereafter, the mother as a guardian of the three children had filed application for enhancement of the maintenance amount under Section 127 Cr.PC on 30.04.2018. The trial while rejecting the application on 30.04.2019 had noted that all the three children were getting scholarship from the government and the salary of the mother was more than Rs.40,000. It was noted that when the original order was passed, the father was earning Rs.5500 per month and at that time, the mother was earning Rs.27,500 while during the trial, at that time of her testimony, her income had increased to Rs.36,000. The Family Court had observed that the increase in salary has not been disclosed by the mother and the fact of children receiving scholarship has also been suppressed. The court had noted that the bank account statement of the children were on record which disclosed that scholarship money received was not withdrawn. Thus, the family court had observed that the mother had not come with clean hands and had suppressed the fact of the scholarship and the increase in her salary, and thus rejected her application.The contention raised by the father before the high court was that mother is earning more than father, and comparing the income, no burden should be laid down on the father.The father had shown his income as Rs.14,600. The regular payment of EMI has stated to be toward the loan of Rs.40,000/- to cover the medical expenses of father which was taken on mortgaging jewellery of the second wife.The court noted that the father had married again and from that marriage, he has a child. He is also paying insurance premium for his child from second marriage, the court noted."Having considered the judgment of Rajnesh (supra), where inspite of the fact that wife is earning, the liability of the father to maintain his child cannot be denied. The mother individually is handling the educational and medical expenses of all the three children. Mother is only the total support system for the three children...," the court said. The court granted the mother's plea for increasing the maintenance amount from Rs.1800 to Rs.3,000 per month. It directed the father to pay Rs.3,000 per month maintenance amount to the applicant – children from 16.07.2019.Case title: X v/s Y & ORS.R/CRIMINAL MISC.APPLICATION (RECALL) NO. 15576 of 2024 In R/CRIMINAL REVISION APPLICATION/824/2022Click Here To Read/Download Order

Father Can't Escape Duty To Maintain Children Citing Loan Repayments, EMI Commitments: Gujarat High Court

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