Vishal Sethi And Ors. vs Vinod Kumar Sethi
1995 Latest Caselaw 592 Del

JUDGMENT

S.D. Pandit, J.

(1) This application is filed by the petitioners who had filed this Suit No. 82/92 under the provisions of Order Xxxiii of the Code of Civil Procedure as indigent persons. Along with their application under Rule 1 of Order Xxxiii they had filed this application to get interim maintenance as they had filed the suit against their father Shri Vinod Kumar Sethi to get a decree for maintenance and the amount for the marriage expenses of petitioner No. 3, Deepali. It is the claim of the applicants/petitioners that the monthly income of their father is more than Rs. 15,000.00 . All the petitioners are minor. They are taking education and they are living with their mother.They have sought a permanent decree of maintenance at the rate of Rs. 1,000.00 per month per petitioner and Rs. 2.00 lakhs towards the marriage expenses of petitioner No. 3 Deepali.

(2) In this application they have averred that they are unable to maintain themselves. Their mother is working as a teacher and her earnings as a teacher are not sufficient for the maintenance of the three petitioners and their mother. As against this their father is having monthly income of Rs. 15,000.00 and, therefore, in these circumstances, they should be granted interim maintenance at the rate of Rs. 1,000.00 per month per petitioner.

(3) The claim of the petitioners is contested by the respondent by filing his written statement to the suit as well as by his reply to the interim application. It is the contention of the respondent that there were proceedings of Special Leave Petition (Civil) 10804/ 84 before the Supreme Court between the petitioners' mother Ms. Prem Varsha Sethi and respondent Vinod Kumar Sethi and that proceeding was settled by a compromise decree and as per the said compromise decree the respondent had paid a sum of Rs. 2.50 lakhs to Ms. Prem Varsha Sethi and, consequently, the present petitioners are not entitled to claim and get any maintenance from him. He has further contended that the claim of petitioners that he is having monthly income of Rs. 15,000.00 is false. According to him he has no business and no shop and his monthly income is not more than Rs. l,500.00 per month. He has further claimed that he has also to maintain his own parents, his second wife and a child and, therefore, in these circumstances, he cannot afford to pay any maintenance. Therefore, in these circumstances, this interim application should be rejected.

(4) When this application came up for hearing before me, neither the respondent nor his Counsel were present. I heard the learned Counsel for the petitioners, who has taken me through all the documents on record as well as the pleadings of the parties. The main contention of respondent No. 1 for opposing the present application is that in view of the payment of Rs. 2.50 lakhs to the mother of the petitioners he is not liable to pay any maintenance. The petitioners have produced a copy of the consent terms which are executed between the respondent No. 1 and Ms. Prem Varsha Sethi. The said document clearly shows that the Special Leave Petition was pertaining to a matrimonial case between respondent-Vinod Kumar Sethi and his wife Prem Varsha Sethi. The present petitioners were not a party to the said Special Leave Petition as well as the original proceedings. No doubt the said consent terms do show that the respondent has agreed to pay Rs. 2.50 lakhs to Prem Varsha Sethi as per the said consent terms, it is also an admitted fact that the present respondent has made payment of the said amount of Rs. 2.50 lakhs to the mother of the present petitioners, but merely because of the payment of the said amount of Rs. 2.50 lakhs by him to the mother of the petitioners, it could not be said that the liability of the respondent towards the maintenance of his children has come to an end. The consent terms mention in term No. 3 as under : "UPON the payment being made in full, as aforesaid, no party will have any right or claim against the other in so far as their rights and claims arising out of the matrimonial relationship or dissolution thereof are concerned."

Then term No. 5 runs as under:- "THE custody of the children shall continue with the appellant but the respondent will have reasonable access to and company of the children on weekends and during school vacations."

(5) If these two terms are read together then it would be quite clear that there is no mention that on account of the payment of the said amount of Rs. 2.50 lakhs the liability of the respondent to maintain his children would also come to an end. What is mentioned therein is that on account of the payment of the said amount petitioners' mother could cease to have any right or claim against her former hushand, viz., defendant No. 2. The consent terms nowhere mention that on account of the payment of Rs. 2.50 lakhs the respondent would not be liable to pay anything towards the maintenance of the children. In that proceeding, besides the matrimonial dispute between husband and wife there was also dispute regarding the wife's property. There was no question regarding the determination of the maintenance of the children. No claim of interim maintenance was made on behalf of the children and the question of maintenance of children was not at all a consideration in those proceedings. Therefore, in these circumstances, the liability of the respondent to pay the maintenance to the children because of his payment of Rs. 2.50 lakhs to the mother of the petitioners could not be said to have come to an end.

(6) Admittedly, the respondent was having an electric goods shop and he belongs to the traders community. At one stage it is contended by the respondent that the said shop and business belongs to his father and he has no concern with it whereas he has contended that the said shop has been closed and he suffered loss in the business but there is no document to support that claim by him. No doubt, he has produced the copies of the Income Tax assessment orders Along with the affidavit filed by him on 20.11.1992. If the said assessment orders are seen then it would be quite clear that the respondent and his second wife Sanjogita were the partners of M/s. Sethi Enterprises. Therefore, his claim that this business was belonging to his father and that he had no concern with the same is falsified by these documents. Apart from this, if those assessment orders as well as para No. 6 of his affidavit is taken into consideration then it shows that in the year 1983-84 there was only profit of Rs. 8,877.00 and in the year 1985-86 to 1987-88 there were only losses and there were no profits. But in the earlier proceedings he had produced the affidavit of his mother, the certified copy of which is produced on record. That affidavit of his mother is dated 17.1.1986 and in that affidavit she has deposed that the present respondent was handing over to her Rs. 5,000.00 per month towards the maintenance and running of the household. Therefore, in view of the said affidavit of his mother it is quite obvious that the statement of account supplied by him at the time of filing of his Income Tax returns is not true and honest. A similar question has come for consideration before the Division Bench of the Bombay High Court in the case of Vinod Dulari Mehta v. Kanak Vinod Mehta, , wherein at page 122 it has been observed as under : "AS is common knowledge, income-tax returns do not reflect the true position of the income of a party for several reasons, and cannot be taken as the sole guide for determining it in proceedings such as the present one."

That was also a case for considering the claim of interim maintenance under Section 24 of the Hindu Marriage Act, 1955.

(7) The petitioners' guardian and next friend has produced two statements of account which show that the sale proceed of M/s. Sethi Enterprises for four months in the year 1986 were Rs. 32,485.00 and for two months were Rs. 20,235.00 . Therefore, it could be said that his average business per month is of a turnover of Rs. 15,000.00 . However, of the said Rs. 15,000.00 it could not be said that the total amount of transaction is by way of profit. Besides business in his shop he had also fixed deposits with Chit Funds and banks. Thus, taking into consideration his mother's statement that he was giving Rs. 5,000.00 per month towards the household expenses it could be safely held that his monthly income must not be less than Rs. 6,000.00 per month and the claim of the respondent that he has no income from the business could not be believed and accepted. In his affidavit dated 4.9.1992 that the business is of his father and that the same is old in April 1992 but there is no document to show the same. It is quite possible that in order to avoid the liability to pay to the petitioners some sham document might have been prepared. The document produced by him by way of Income Tax orders shows that the business was belonging to him and his second wife. In 1986 his mother was saying that he was giving her Rs. 5,000.00 per month towards household expenses. Therefore, in these circumstances, I have come to a prima facie conclusion that his income must not be less than Rs. 6,000.00 per month.

(8) Admittedly, the respondent has remarried and he has also got a child from his second wife. Besides the present petitioners he has the liability to maintain his second wife and the child from his second marriage. He is the only son of his parents. Hence, his old parents must be also dependent on him. Therefore, taking into consideration the dependency on the defendant and his income, I hold that each of the petitioners should be paid interim maintenance @ Rs. 600.00 per month per petitioner from the date of the application, i.e. from 14.8.1989.

(9) But out of the three plaintiffs, plaintiff No. 1 Vishal is bom on 15.2.1974 and plaintiff No. 2 Rohit is born on 17.9.1976, as stated in para No. 3 of the plaint. Thus, both Vishal and Rohit have become major on 16.2.1992 and 18.9.1994 respectively. Therefore, in view of the provisions of Sub-Section (2) Section 22 of the Hindu Adoptions and Maintenance Act, 1956 plaintiff No. 1 Vishal and plaintiff No. 2 Rohit are entitled to get the maintenance, including interim maintenance awarded under Section 151 of the Code of Civil Procedure only up to the respective dates of 15.2.1992 and 17.9.1994.

(10) Before passing the final order I want to make it quite clear that what is awarded by me is only interim maintenance by exercising powers under Section 151 of the Code of Civil Procedure. My finding as regards the eligibility of the plaintiffs' entitlement to get maintenance and as regards the quantum of maintenance are not final and conclusive. Parties are entitled to challenge and dispute the same at the time of final hearing of the suit. Final decision regarding the same would be taken after full trial and appropriate order would be passed as regards the amount paid or recovered in pursuance of this order.

(11) I, therefore, pass the following order : 1.Defendant Vinod Kumar Sethi is to pay interim maintenance to plaintiff No. 1 Vishal @ Rs.600.00 per month from 14.8.1989 to 15.2.1992. 2. Defendant Vinod Kumar Sethi is to pay interim maintenance to plaintiff No. 2 Rohit @ Rs. 600.00 per month from 14.8.1989 to 17.9.1994. 3. Defendant Vinod Kumar Sethi is to pay interim maintenance @ Rs. 600.00 per month from 14.8.1989 to plaintiff No. 3 Deepali. 4. Costs of this application to be the costs in the cause.