The Gujarat High Court has held that voluntary deductions such as Provident Fund and Employee Stock Purchase Plan contributions cannot be reduced from a husband's gross salary when calculating maintenance under Section 125 CrPC, as these are financial assets accruing to the husband rather than mandatory statutory charges. The Court quashed a revision order that confirmed a maintenance award based on net salary after such deductions, remanding for fresh consideration in light of the Supreme Court's ruling in Harpreet Sawhney v. Puneet Sharma.
Background & Facts
The Dispute
The petitioner, Manjuben D/o Khimabhai Chavda W/o Jethabhai Amrabhai Maru, challenged the judgment and order dated 03.12.2024 passed by the Additional Sessions Judge, Rajkot in Criminal Revision Application No. 228 of 2023. The Sessions Judge had confirmed the order of the Additional Chief Judicial Magistrate, Jasdan in Criminal Miscellaneous Application No. 40 of 2022, which awarded the petitioner maintenance of Rs 12,500/- with costs of Rs 2,500/- from the date of the petition under Section 125 of the Code of Criminal Procedure.
Key Facts
- The petitioner filed an application under Section 125 CrPC before the Additional Chief Judicial Magistrate, Jasdan
- The husband's salary for August 2022 was Rs 77,414/-, as reflected in Exhibit 15 placed before the Trial Court
- The learned Trial Court calculated maintenance at one-third of the net amount payable after deductions, rather than the gross salary
- The deductions included Provident Fund (PF) and Employee Stock Purchase Plan (ESPP) contributions
- The petitioner contended that PF and ESPP are voluntary savings that ultimately benefit the husband and cannot be treated as mandatory deductions
- The husband (Respondent No. 2) argued that professional tax and income tax are mandatory deductions to be considered
Procedural History
- Date not specified: Criminal Misc. Application No. 40 of 2022 filed before Additional Chief Judicial Magistrate, Jasdan under Section 125 CrPC
- Date not specified: Magistrate awarded maintenance of Rs 12,500/- with costs of Rs 2,500/- from date of petition
- Date not specified: Criminal Revision Application No. 228 of 2023 filed before Additional Sessions Judge, Rajkot
- 03.12.2024: Additional Sessions Judge, Rajkot confirmed the Magistrate's order
- 2025: Special Criminal Application (for Maintenance) No. 1066 of 2025 filed before Gujarat High Court under Article 227
- 28.10.2026: Judgment delivered by Gujarat High Court
The Parties' Positions
Petitioner (Wife): The Trial Court erred by deducting PF and ESPP contributions from gross salary before calculating maintenance. These are voluntary financial savings that accrue as assets to the husband, distinguishable from mandatory statutory deductions like income tax and professional tax. Relied on Harpreet Sawhney v. Puneet Sharma [2026 INSC 822].
Respondent No. 2 (Husband): Professional tax and income tax are mandatory deductions to be subtracted from total pay. The payslip and overall income must be considered to determine maintenance. Relied on Pratibha Dinesh Kumar Vania v. State of Gujarat [2008 1 GCD 727]. Supported the impugned judgment.
Relief Sought
The petitioner sought quashing of the impugned judgment and order dated 03.12.2024, and a direction for fresh consideration of maintenance based on the husband's gross salary without reducing voluntary PF/ESPP deductions.
The Legal Issue
Whether voluntary deductions such as Provident Fund and Employee Stock Purchase Plan contributions can be deducted from a husband's gross salary when computing maintenance under Section 125 CrPC, or whether only mandatory statutory deductions (income tax, professional tax) are permissible reductions.
Arguments Presented
For the Petitioner
Learned advocate Mr. Jay Ambani submitted that the husband's total salary in August 2022 was Rs 77,414/- (Exhibit 15). The Trial Court erroneously computed one-third of the net amount after deductions, treating PF and ESPP as mandatory charges. He relied on the Supreme Court's judgment in Harpreet Sawhney v. Puneet Sharma [2026 INSC 822], where it was held that PF and ESPP deductions are voluntary financial savings that ultimately benefit the husband and can be withdrawn in the future, unlike income tax or professional tax which are mandatory statutory obligations.
For the Respondent
Learned advocate Mr. Dhairyawan Bhatt, appearing for the husband, relied on Pratibha Dinesh Kumar Vania v. State of Gujarat [2008 1 GCD 727] and submitted that professional tax and income tax are to be deducted from total pay, and the Court should consider the payslip as well as the husband's income to determine maintenance. He supported the impugned judgment and sought dismissal of the petition.
The Court's Analysis
The Court examined the Supreme Court's decision in Harpreet Sawhney (paragraph 20), which drew a clear distinction between mandatory statutory deductions and voluntary financial savings:
"20. We have considered the submissions of the Appellant that the deductions are voluntary in nature. We find that deductions of Provident Fund and ESPPs are ultimately benefits that would be passed on to the Respondent-husband. Unlike Income Tax payment or professional taxes which are mandatory taxes, PFs and ESPPs are not permanent charges but rather will accrue into the account of the Respondent-husband which can be withdrawn by the depositor in the future."
The Court observed that the learned Revisionist Court committed a serious error and palpable illegality by confirming an order that failed to distinguish between mandatory statutory deductions (income tax, professional tax) and voluntary financial savings (PF, ESPP). The Revisionist Court was expected to consider the total pay for deciding the maintenance grantable to the petitioner, recognizing that voluntary financial savings are assets of the husband.
The Court also noted competing submissions about the husband's current financial status: the petitioner's counsel submitted that the husband's salary had been enhanced subsequent to the revision judgment, while the husband's counsel submitted that he is now retired and receiving pension. This factual matrix required fresh evidence and hearing.
The Verdict
The petition was allowed. The Gujarat High Court quashed and set aside the impugned judgment and order dated 03.12.2024 passed by the Additional Sessions Judge, Rajkot in Criminal Revision Application No. 228 of 2023. The matter was remanded and restored to the Court of the Principal District Judge, Rajkot for fresh consideration in accordance with law. Both parties were directed to remain present before the Principal District Judge, Rajkot on 01.12.2026. The Court clarified that the matter shall be decided by the Principal District Judge, Rajkot, with both parties permitted to lead necessary admissible evidence and given an opportunity of hearing. All contentions of both parties were kept open.
What This Means For Similar Cases
Voluntary Savings Are Not Deductible For Maintenance Calculation
Practitioners must now argue that Provident Fund, Employee Stock Purchase Plans, and similar voluntary contributions cannot be treated as mandatory deductions when computing a husband's income for Section 125 CrPC maintenance. These are assets accruing to the husband - withdrawable in the future - and must be added back to gross salary. The Supreme Court's Harpreet Sawhney precedent is now binding authority for this distinction.
Revision Courts Must Distinguish Deduction Types
- Mandatory statutory deductions (income tax, professional tax) may be deducted from gross income
- Voluntary financial savings (PF, ESPP, voluntary insurance, recurring deposits) must be included in income
- Failure to make this distinction constitutes palpable illegality warranting interference under Article 227
Remand For Fresh Evidence Is Appropriate Where Financial Status Has Changed
- When subsequent events alter a party's financial position (salary enhancement, retirement, pension), the appellate/revision court should remand for fresh consideration rather than decide on stale records
- Both parties must be given opportunity to lead admissible evidence on current income
- The Harpreet Sawhney principle applies prospectively to pending and future maintenance calculations
