Case Law Details
Anil Sahu Vs State of U.P. and Another (Allahabad High Court)
The Allahabad High Court heard a criminal revision challenging the order dated 13.11.2025 passed by the Additional Principal Judge, Family Court No. 03, Bareilly in Criminal Case No. 36 of 2024 arising from an interim maintenance application under Section 125 Cr.P.C. filed by the opposite party.
The revisionist sought setting aside of the impugned order. During the hearing, learned counsel for the revisionist submitted that the revisionist was willing to pay one-fourth of his net salary to the opposite party towards maintenance in view of the law laid down by the Supreme Court and requested modification of the impugned order accordingly.
The learned A.G.A. relied upon the Supreme Court decision in Kulbhushan Kumar Vs. Raj Kumari, (1970) 3 SCC 129, submitting that the Court had held that income tax and compulsory provident fund contributions are deductible while determining “free income,” whereas deductions such as house rent and electricity charges are not permissible. The judgment also upheld maintenance subject to a limit of 25% of the income as found by the income tax authorities.
The learned A.G.A. further relied upon Kalyan Dey Chowdhury Vs. Rita Dey Chowdhury, AIR 2017 SC 2383, wherein the Supreme Court, following Kulbhushan Kumar, observed that 25% of the husband’s net salary would be just and proper as maintenance to the wife. The judgment also stated that permanent alimony must be commensurate with the status of the parties and the paying spouse’s capacity, while maintenance depends upon the factual situation of each case. The Supreme Court noted that although the High Court had enhanced maintenance based on the husband’s increased net salary, it reduced the amount considering the husband’s second marriage and child.
The learned A.G.A. also relied upon the Supreme Court’s latest decision in Deepa Joshi Vs. Gaurav Joshi, 2026 SCC Online SC 597, wherein the Court observed that repayments of loans resulting in creation or acquisition of assets constitute capital investment and cannot be equated with essential or unavoidable expenditure. Such voluntary financial commitments cannot take precedence over the statutory obligation of maintenance. The Supreme Court further observed that the husband’s obligation to maintain his spouse is a primary and continuing duty, and deductions towards asset-generating repayments should not substantially reduce his real earning capacity for determining maintenance.
After considering the submissions of the revisionist and the State, the High Court disposed of the revision with directions that the Senior Superintendent of Police, Moradabad, shall deduct one-fourth of the revisionist’s net salary every month, whether the amount is more than or less than Rs. 17,000 awarded under the impugned order, and credit the same to the bank account of the opposite party in compliance with the order dated 13.11.2025.
The Court further directed that any enhancement or reduction in the revisionist’s salary would automatically result in a corresponding revision of the maintenance amount, with one-fourth of the revised net salary continuing to be deducted and paid to the opposite party.
The concerned Family Court Judge was directed to communicate the order forthwith to the Senior Superintendent of Police, Moradabad, who was required to ensure regular deduction of the specified amount from the revisionist’s salary and its credit to the bank account of the opposite party.
The Court also directed that any arrears of maintenance shall be recovered from the revisionist by the concerned authority and remitted to the bank account of the opposite party in accordance with law.
Additionally, the Court observed that if there is any subsequent change in circumstances, it would be open to the opposite party to file an application under Section 127 of the Code of Criminal Procedure or Section 146 of the BNSS.
Accordingly, the High Court modified the impugned order dated 13.11.2025 to the extent indicated in its directions and disposed of the criminal revision.
FULL TEXT OF THE JUDGMENT/ORDER OF ALLAHABAD HIGH COURT
1. Heard Sri Mohammed Abid Ali, learned counsel for the revisionist, and learned A.G.A. for the State.
2. Learned counsel for the revisionist submits that the present criminal revision has been filed seeking relief as mentioned in the prayer clause. The prayer clause is delineated below:-
“It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to allow the present revision and to set-aside the Impugned Judgment and Order dated 13.11.2025 passed by learned Add. Principal Judge, Family Court No.03 Bareilly in Criminal Case No. 36 of 2024 arising out of Interim Maintainance application dated 10.09.2024 (Smt. Rakhi Rathore Vs. Anil Sahu) Under Section 125 Cr.P.C. Police Station Qila, District Bareilly.”
3. Learned counsel for the revisionist submits that the revisionist is willing to pay one-fourth of his net salary to opposite party no. 2 towards maintenance in view of the law laid down by the Apex Court and prayed that the impugned order be modified accordingly.
4. On the above submission, learned A.G.A. for the State has pointed out the law laid down by Hon’ble the Apex Court in Kulbhushan Kumar Vs. Raj Kumari, 1970 (3) SCC 129. The relevant portion of the judgment in Dr. Kulbhushan Kumar (Supra) relied by learned A.G.A. is quoted below :-
“19. It was further argued before us that the High Court went wrong in allowing maintenance at 25 per cent of the income of the appellant as found by the Income Tax Department in assessment proceedings under the Income Tax Act. It was contended that not only should a deduction be made of income tax but also of house rent, electricity charges, the expenses for maintaining a car and the contribution out of salary to the provident fund of the appellant. In our view, some of these deductions are not allowable for the purpose of assessment of “free income” as envisaged by the Judicial Committee. Income tax would certainly be deductible and so would contributions to the provident fund which have to be made compulsorily. No deduction is permissible for payment of house rent or electricity charges. The expenses for maintaining the car for the purpose of appellant’s practice as a physician would be deductible only so far as allowed by the income tax authorities i.e. in case the authorities found that it was necessary for the appellant to maintain a car.
21. A sum of Rs 250 per month for the maintenance of the wife of a person occupying the position of the appellant cannot be said to err on the liberal side. The High Court, in our opinion, very rightly fixed that sum making it subject to the limit of 25 per cent of the income as found by the Income Tax authorities. We have no reason to take any different view. Subject to our observation as to the determination of the income of the appellant, the appeal against the wife is dismissed with costs.”
emphasis supplied
5. Learned A.G.A. further submits that the Apex Court in Kalyan Dey Chowdhury Vs. Rita Dey Chowdhury, AIR 2017 SC 2383 has held the similar view by relying upon the decision in Dr. Kulbhushan Kumar (Supra). The relevant portion of the judgment relief by learned A.G.A. is as under :-
15. The review petition under Order 47 Rule 1 CPC came to be filed by the respondent wife pursuant to the liberty granted by this Court when the earlier order dated 2-2-2015 [Rita Dey Chaudhury v. Kalyan Dey Chowdhury, 2015 SCC OnLine Cal 10447] awarding a maintenance of Rs 16,000 to the respondent wife as well as to her minor son was under challenge before this Court. As pointed out by the High Court, in February 2015, the appellant husband was getting a net salary of Rs 63,842 after deduction of Rs 24,000 on account of GPF and Rs 12,000 towards income tax. In February 2016, the net salary of the appellant is stated to be Rs 95,527. Following Kulbhushan Kumar v. Raj Kumari [Kulbhushan Kumar v. Raj Kumari, (1970) 3 SCC 129], in this case, it was held that 25% of the husband’s net salary would be just and proper to be awarded as maintenance to the respondent wife. The amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance. Maintenance is always dependent on the factual situation of the case and the court would be justified in moulding the claim for maintenance passed on various factors. Since in February 2016, the net salary of the husband was Rs 95,000 per month, the High Court was justified in enhancing the maintenance amount. However, since the appellant has also got married second time and has a child from the second marriage, in the interest of justice, we think it proper to reduce the amount of maintenance of Rs 23,000 to Rs 20,000 per month as maintenance to the respondent wife and son.
emphasis supplied
6. Learned A.G.A. has relied upon the latest decision of the Apex Court in Deepa Joshi Vs. Gaurav Joshi, 2026 SCC Online SC 597. The relevant portion of the judgment as relied upon is as under:-
“15. Insofar as the financial capacity of the respondent is concerned, it is borne out from the compliance affidavit filed pursuant to the order dated 06.02.2026 that the respondent is employed as a Manager with Canara Bank and is drawing a gross monthly income of Rs. 1,15,670/-. The Courts below have taken note of certain deductions from the said income, including repayments towards loans. However, it is well settled that repayments of loans, particularly where such repayments result in creation or acquisition of assets, partake the character of capital investment and cannot be equated with essential or unavoidable expenditure. Such financial commitments, being voluntary in nature, cannot be accorded precedence over the statutory and legally enforceable obligation of maintenance.
16. The obligation of the husband to maintain his spouse is a primary and continuing duty, which must be discharged in a manner that enables the wife to live with dignity and in a standard commensurate with that enjoyed during the subsistence of the marriage. Viewed thus, deductions on account of asset-generating repayments cannot be permitted to substantially dilute the respondent’s real earning capacity for the purpose of determining maintenance. We are of the opinion that a sum of Rs. 25,000/- per month would be just, fair and reasonable in the facts of the present case.”
emphasis supplied
7. Considering the aforesaid submission advanced by learned counsel for the revisionist and learned A.G.A. for the State, the present revision is disposed of with the direction that the Senior Superintendent of Police, Moradabad, shall deduct one-fourth of the net salary of the revisionist which may be either more than Rs.17000/- or less than 17000/- as awarded vide impugned order and credit the same every month to the bank account of opposite party no. 2 in compliance of the impugned order dated 13.11.2025.
8. It is made clear that in the event of any enhancement or reduction in the salary of the revisionist, the amount payable towards maintenance shall automatically stand revised and one-fourth of the revised net salary shall continue to be deducted and paid to opposite party no. 2.
9. The concerned learned Family Court Judge shall communicate this order forthwith to the Senior Superintendent of Police, Moradabad, who shall ensure deduction of the aforesaid amount from the salary of the revisionist and credit the same into the bank account of opposite party no. 2 regularly.
10. In case any arrears of maintenance, the same shall also be recovered from the revisionist by the concerned authority and remitted to the bank account of opposite party no. 2 in accordance with law.
11. It is further observed that, in the event of any subsequent change in the circumstances, it shall be open to the opposite party No.2 to move an application under Section 127 of the Code of Criminal Procedure/Section 146 of BNSS.
12. With the aforesaid directions, the impugned order dated 13.11.2025 stands modified to the extent indicated above.
13. The criminal revision is, accordingly, disposed of.
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