60
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 511/2009
NARINDER PAL KAUR CHAWLA ..... Appellant
Through: Appellant in person.
versus
MANJIT SINGH CHAWLA ..... Respondent
Through: Ms.Prachi Vasisht and Mr.Achint
Ranjan Singh, Advocates
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
ORDER
% 30.05.2011 CM.No.6969/2009
1. Appellant has filed the present appeal assailing the judgment and decree dated 19.4.2008 passed by learned trial court on a petition filed by the appellant for recovery of maintenance under Sections 18 and 20 of Hindu Adoption and Maintenance Act and for right to residence. Various interim applications have been filed by the appellant during the pendency of the appeal seeking various reliefs against the respondent husband, which are being disposed of by this order.
2. Admittedly, appellant is in possession of 2nd floor of the property bearing No.A-447, Defence Colony, New Delhi, (hereinafter referred to as "the suit property"). By virtue of the order dated 19.4.2008, the trial court has awarded maintenance to the appellant @ Rs.4,000/- per month from the date of filing of the suit till 20 th September, 2007. The trial court has also directed that post 20th September, 2007 the appellant be also entitled to maintenance @ Rs.7,000/- per month till such time she continues to remain in RFA NO.511/2009 Page 1 of 16 possession of the second floor of the property and in case the appellant leaves or is made to move out of the property by an order of the court or otherwise, she would be entitled to maintenance @ Rs.12,000/- per month. The appellant has challenged this amount as being insufficient. The appeal stands admitted.
3. Appellant, who appears in person, submits that the marriage between the parties was solemnized on 11.12.1977 according to Sikh rites and ceremonies at Jullundur. The parties after their marriage resided at the suit property. Subsequently, the appellant learnt that the respondent was already married to one Ms. Manjit Kaur and the divorce proceedings were pending between the respondent (husband) and his former wife. It is next submitted by the appellant that the parties separated in the year 1991. It is further submitted by the appellant that respondent belongs to a well-to-do family and was working with Oriental bank of Commerce and it was only in the year 2003 after the marital discord that the respondent took voluntary retirement. Appellant also submits that respondent suffered an injury in 1984 riots due to which the respondent is suffering from epilepsy. Appellant further submits that the mother and sister of the respondent have taken advantage of the illness of the respondent and have usurped the family properties. It is next submitted by the appellant that the respondent‟s sister has purportedly sold the property only with the RFA NO.511/2009 Page 2 of 16 intention to deny legitimate maintenance due to the appellant and has further misappropriated the funds received out of the sale proceedings of the said property.
4. Counsel for the respondent submits that respondent is epileptic and it is due to his illness he is not able to work and secure an employment. Counsel further submits that respondent is being maintained by his old and aged mother and married sister. Counsel next submits that it is the mother and the sister of the respondent who are providing for the medical aid and other day-to-day needs of the respondent.
5. Various interim applications have been filed by the appellant and the Objector namely, Sethia builders, who is stated to have purchased the property. The appellant filed an application before the High Court seeking leave to sue as an Indigent Person. The High Court vide order dated 05.01.2001, on the basis of an enquiry being conducted, observed that appellant in the instant case is an indigent person and accordingly, the application of the appellant to contest the appeal as an indigent person was allowed.
6. The present application has been filed by the appellant seeking directions to restrain the Objector, namely, M/s Sethia Builders from taking possession of the property which was purported to be sold during the pendency of the execution proceedings initiated by the appellant to recover the arrears of Rs.5.5 Lacs (approximately) as maintenance due from the RFA NO.511/2009 Page 3 of 16 respondent. Vide order dated 19.04.2009 passed by the trial court first floor of the property was sealed to safeguard the interest of the appellant. Admittedly, by the subsequent order dated 06.06.2009 Additional District Judge passed an order by which the Objector was directed to furnish a bank guarantee in the sum of Rs.5,50,000/- being the approximate value of the arrears of decree holder (appellant herein). The bank guarantee provided by Punjab & Sind Bank bearing No.3027, which is stated to be alive, was accepted by the trial court and the first floor of the property stands de-sealed. Admittedly the appellant herein continues to remain in possession of the second floor of the property, although the appellant submits that she is also in possession of the first floor of the property. Learned counsel for the respondent disputes the same. The appellant in the course of the arguments submitted that sale of the property is a sham transaction and only to deny legitimate maintenance due to her. The appellant further submits respondent could not have sold the property as per the Will of her late father-in-law, who had categorically stated that the property cannot be sold. It is also not in dispute that the appellant has filed a separate suit for appropriate relief which is pending before the original side of the Court to protect her rights.
7. Since the present application has been made by the appellant prior to passing of the order dated 6th June, 2009, passed by the Additional District Judge, by which the first floor of the property RFA NO.511/2009 Page 4 of 16 stands desealed upon the builder furnishing a bank guarantee in the sum of Rs.5,50,000/-, which order has not been assailed by the appellant herein and has accordingly attained finality and also due to the pendency of the civil suit no further orders are required to be passed in this application and the same is accordingly dismissed. CM.Nos.12699-12700/2009
8. By the present applications, applicant (appellant herein) has prayed that respondent be proceeded ex parte, as the respondent has failed to submit his reply within the time allowed. Although there is no procedure for filing reply in the Regular First Appeal, however, the reply of the respondent so filed may be looked into as far as it relates to material which is already part of the record. Even otherwise, at the time of hearing of the Regular First Appeal only the trial court record is to be considered. Accordingly, the application is dismissed.
CM.No.12983/2009
9. This is an application under Order 1 Rule 10 Sub-Rule 2 CPC filed on behalf of Objector, Sethia Builders, for being impleaded as a party. As none is present to press this application, the same is accordingly, dismissed.
CM.No.12984/2009
10. Application stands dismissed as not pressed. CM.No.12985/2009
11. Appellant does not wish to press this application and the same is RFA NO.511/2009 Page 5 of 16 accordingly dismissed as not pressed.
CM.No.535/2010, CM.No.4420/2010, CM.No.8623/2010, CM.No.20673-74/2010
12. Repeated applications have been filed by the appellant seeking grant of maintenance during the pendency of the appeal. Appellant, who appears, in person, submits that there is some ambiguity in the operative portion of the judgment as it is stated that maintenance is to be granted at different rates from the date of filing of the application and the order shall remain operative till such time as the appellant is under law entitled to receive.
13. It is not in dispute that appellant has already filed an execution petition, which is pending before the trial court. Appellant has vehemently prayed that since she has no source of livelihood and is solely dependent on Delhi Sikh Gurudwara Prabandhak Committee for her maintenance and upkeep and this court should direct the respondent to pay maintenance during the pendency of this appeal.
14. By the present applications, the appellant claims interim maintenance @ Rs.7,000/-, per month, during the pendency of the appeal. Reply to the application (CM.No.535/2010) has not been filed. The right of the appellant stands protected by the judgment dated 19.04.2008 passed by learned trial court, by virtue of which, the trial court has awarded maintenance to the appellant @ Rs.4,000/- per month from the date of filing of the suit till 20th September, 2007. The trial court has also directed that post 20th September, 2007 the appellant be also entitled to maintenance @ Rs.7,000/- per month till such time she continues to RFA NO.511/2009 Page 6 of 16 remain in possession of the second floor of the property and in case the appellant leaves or is made to move out of the property by an order of the court or otherwise, she would be entitled to maintenance @ Rs.12,000/- per month.
15. The appellant submits that even after passing of the impugned judgment, the respondent has failed to provide her maintenance and her entire expenses of food and clothing are being borne by Delhi Sikh Gurudwara Prabandhak Committee. The appellant has placed reliance on the statement made by her on 26th November, 2009, at the time of filing of the application seeking leave to contest the appeal as an indigent person. The appellant also submits that the statement made by her was duly verified and it was only after verification the Joint Registrar was satisfied that she has no source of any income was she allowed to contest the appeal as an indigent person. Appellant has also drawn the attention of the court to the report dated 26th November, 2009, of the Joint Registrar, Delhi High Court by which he has come to a categorical finding that appellant has no means to pay the Court fee.
16. The appellant further submits that appellant is living a life of extreme deprivation and poverty while the respondent is living a life of comfort and luxury. Appellant further submits that respondent has only paid a small part of the maintenance awarded. Appellant also submits that respondent has scant regard to the judgment and decree passed by learned trial court and the respondent is playing hide and seek before the executing court. RFA NO.511/2009 Page 7 of 16 Appellant next submits that respondent does not suffer from any permanent disability and in any case the respondent belongs to a well-to-do family and has been deriving rental income from the ground floor of the property. Appellant submits that it is only to deny legitimate maintenance due to the appellant that respondent‟s family is showing him to be unwell and incapable of earning a living.
17. It is contended by appellant that besides receiving rental income from the property the appellant also took voluntary retirement in the year 2003 and in lieu thereof he received a large amount from the bank where he was employed. However, the respondent made a statement on 26.5.2011 in Court that in the year 2002 he received an amount of about Rs.5.00 to Rs.6.00 lakhs from the Bank at the time of his voluntary retirement.
18. Appellant submits that her right of residence on the second floor of the property was protected by the Supreme Court of India in a proceedings initiated by her under Sections 18 and 20 of Hindu Adoption and Maintenance Act. The appellant further submits that her right to interim maintenance was decided by the Hon‟ble Supreme Court vide order dated 21.04.2004 wherein the Supreme Court observed here asunder:
"For the purpose of fixing appropriate amount of interim maintenance, we may assume that the financial position of the husband is such that he can easily pay Rs. 1500 per month as interim maintenance without disturbing the right of separate residence provided to the wife at the second floor of the husbands‟ premises".RFA NO.511/2009 Page 8 of 16
19. Appellant submits that despite a direction given by the Supreme Court to the respondent not to disturb the right of possession of the appellant, the respondent, in active connivance with his mother and sister, has purportedly sold the valuable property situated at Defence colony for pittance. Appellant further submits that respondent and his family are enjoying the money received out of the sale of the said property. It is also submitted by the appellant that the mother of the respondent and respondent continue to enjoy the fruits of the sale proceeds while the applicant is on the verge of starvation. The appellant has also strongly urged before this court that she has right to live in dignity and maintain herself. It is submitted by the appellant that while the respondent is living a life of luxury and comfort, the appellant is begging and is dependent on charity and alms. She further submits that she is completely at the mercy of Delhi Sikh Gurudwara Prabandhak Committee. The appellant submits that respondent and his family are receiving rental income from letting out the ground floor of the property. This fact has been disputed by counsel for the respondent who submits that the rent if any is being received by the subsequent purchaser.
20. Counsel for the respondent has refuted all the submissions of the appellant made during the course of the arguments. Learned counsel for the respondent submits that after selling the property, the respondent‟s family invested the sale proceeds received in RFA NO.511/2009 Page 9 of 16 another immovable property in Lajpat Nagar, where the respondent and his mother are presently residing. Counsel further submits that respondent had taken voluntary retirement in the year 2003 and the amount received by him has been used for his medical expenses as he is suffering from „epilepsy‟. Counsel next submits that due to his illness respondent suffers from a permanent disability and he is unable to carry out any other work. It is further submitted that respondent is solely dependent on his married sister, who is providing him with food, clothing and medicines. Counsel also submits that respondent has no source of livelihood and is, thus, unable to pay any maintenance to the appellant, as he is living at the mercy of his married sister.
21. I have heard the appellant, who appears in person, and counsel for the respondent and given my thoughtful consideration to the matter. In the instant applications, appellant seeks a direction that respondent should be directed to disburse interim maintenance to her till the final adjudication of the appeal. The submission of the counsel for the respondent that respondent is a pauper and has no means to pay aspires no confidence especially in view of the fact that counsel for the respondent has not been able to render any reasonable explanation about the fact that as to why the property located at a posh area of Defence Colony was sold or as to how the disease of the respondent hampered the respondent securing another employment and the details of the amount received upon RFA NO.511/2009 Page 10 of 16 sale of the Defence Colony property. There is no explanation or details with regard to the price at which the Defence Colony property was sold and the price at which the flat at Lajpat Nagar was purchased.
22. It is settled position of law that a wife is entitled to live in a similar status as was enjoyed by her in her matrimonial home. It is the duty of the courts to ensure that it should not be a case that one spouse lives in a life of comfort and luxury while the other spouse lives a life of deprivation, poverty.
23. Further it has been noticed by the Courts that the tendency of the spouses in proceedings for maintenance is to not truthfully disclose their true income. However, in such cases some guess work on the part of Court is permissible.
24. The respondent appeared in court on 26.05.2011 and made a statement that he has no source of livelihood and he is completely dependent upon his mother and married sister for his basic day-to- day needs. I find the statement to be unrealistic and unreliable. In the Indian set up, it is not possible that any brother would live on the maintenance to be provided by a married sister especially when the married sister is not working herself and is also dependent on her husband and in-laws. During the course of hearing of the applications, it has been simply stated by counsel for the respondent that respondent is epileptic, however, no symptoms, or other traces of his illness have been produced to RFA NO.511/2009 Page 11 of 16 illustrate as to how the illness of the respondent disrupted the day- to-day activities of the respondent.
25. The Mosby‟s Medical, Nursing, & Allied Health Dictionary, Fourth Edition defines „epilepsy‟ as under:
"epilepsy /ep‟lep‟ se / [Gk, epilepsia, seizure], a group of neurologic disorders characterized by recurrent episodes of convulsive seizures, sensory disturbances, abnormal behavior, loss of consciousness, or all of these. Common to all types of epilepsy is an uncontrolled electric discharge from the nerve cells of the cerebral cortex. Although most epilepsy is of unknown cause, it may sometimes be associated with cerebral trauma, intracranial infection, brain tumor, vascular disturbances, intoxication, or chemical imbalance."
26. The 2004 LANGE CURRENT Medical Diagnosis & Treatment International Edition defines „epilepsy‟ as under:
"The term epilepsy denotes any disorder characterized by recurrent seizures. A seizure is a transient disturbance of cerebral function due to an abnormal paroxysmal neuronal discharge in the brain."
27. The disease is found to be curable in some cases and can be controlled by way of medicines. There is nothing on record to show that respondent is suffering from permanent disability. No medical evidence has been pointed out to show that on account of this disease the petitioner is unable to carry out any kind of activities. Though it has been submitted by the respondent‟s counsel and respondent‟s daughter that respondent is unable to take up any employment and he has no finances. While it is understandable that a person suffering from epilepsy may suffer from time to time seizures, fits due to which he may not be in a position to carry out various activities including strenuous work, driving or work at a RFA NO.511/2009 Page 12 of 16 machine, work at a high-voltage power line or at extreme heights, there is nothing on record to suggest that respondent is suffering from a continuous illness due to which he is not able to carry out jobs even where no physical labour is involved. The entire effort seems to be made to avoid paying single penny of maintenance to the wife. The approach of the respondent is unacceptable. The plea of the respondent that he is being looked after by his married sister appears to be even more improbable especially when the married sister is not working. In case the respondent did not want to avoid paying maintenance he can easily seek employment in the large business and his sister could easily provide the respondent with a job. Further, there is also no reasonable explanation with regard to the utilization or quantum of sale proceeds received on the alleged sale of the property of Defense colony. This court can take judicial notice of the fact that prices of the property situated at Defense Colony are much higher than a flat which is stated to have been purchased at Lajpat Nagar. Accordingly the plea of the respondent that entire sale proceeds that were received from the sale of property situated at Defence Colony were used for the purchase of a flat at Lajpat Nagar inspires no confidence.
28. It has repeatedly been held by the Courts that one cannot ignore the fact that an Indian woman has been given an equal status under Articles 14 and 16 of the Constitution of India and she has a right to live in dignity and according to the status of her husband. RFA NO.511/2009 Page 13 of 16 Status and the lifestyle of the parties are an important consideration while deciding an application under Section 24 of the Hindu Marriage Act.
29. I find no force in the submission of counsel for the respondent who states that the respondent has no means to maintain himself or his wife. Accordingly, the present applications are allowed. Respondent is directed to pay maintenance to the appellant @ Rs.7,000/- per month, as awarded by the trial court, even during the pendency of the appeal and as per the judgment and decree.
30. It is hoped and expected that trial court would hear the execution petition filed by the appellant expeditiously and in accordance with law, especially, in view of the fact that respondent has not paid the arrears of maintenance to the appellant.
31. In view of above directions, applications are disposed of. CM.No.6030/2010
32. Application stands dismissed as not pressed, with liberty, as prayed for, to make a similar application, if so advised in the civil suit, which is already pending in the original side.
CM.No.8624/2010
33. This is an application filed by the appellant for early hearing of the interim application.
34. Application stands dismissed as not pressed. CM.No.3380/2010
35. Appellant does not wish to press present application, at this stage, with liberty to bring to the notice of the executing court, the arrears RFA NO.511/2009 Page 14 of 16 and the decreetal amount, which are due and payable to her as of today.
36. Application stands dismissed as not pressed, with liberty as prayed for.
CM.No.3381/2011
37. By present application, applicant has prayed that tenant of the ground floor of the property bearing No.447, Defence Colony, New Delhi, be directed to hand over possession of the tenanted premises to the court. Further it is orally prayed by the appellant that the tenant be directed not to sub-let the property (ground floor of the premises bearing No.447, Defence Colony, New Delhi).
38. Since the appellant has already filed a suit on the original side of this court with respect to challenging the sale of the property bearing No.447, Defence Colony, New Delhi, the relief claimed in this application, cannot be granted. Accordingly, application stands dismissed. However liberty, as prayed for, is granted to the appellant, to claim this relief in appropriate proceedings. CM.No.6000/2011
39. Appellant wishes to withdraw this application, with liberty to file an application in the appropriate proceedings.
40. Accordingly, application stands dismissed as withdrawn, with liberty to file an application in the appropriate proceedings, if so advised.
CM.No.6001/2011
41. This is an application filed by the appellant, bringing to the notice RFA NO.511/2009 Page 15 of 16 of the Court the contradictory statements being made by the respondent herein.
42. Application stands dismissed. However, liberty, as prayed, is granted to the appellant, to bring to the notice of this court the contradictory statements, if any, at the time of hearing of the appeal.
CM.No.6002/2011
43. The prayer made in the present application will be considered at the time of hearing of the appeal. Accordingly, application stands dismissed.
CM.No.6003/2011
44. This is an application filed by the appellant under Order 14 (i) (e) of Delhi Rent Control Act.
45. As the application is not maintainable under the provisions of Delhi Rent Control Act, the application is accordingly dismissed.
46. Copy of this order be given DASTI.
G.S. SISTANI, J.
MAY 30, 2011 'ssn‟ RFA NO.511/2009 Page 16 of 16