Tilak Kumari & Anr. vs Sh. Anand
2001 Latest Caselaw 826 Del

ORDER

A.K.Sikri, J.

1. Petitioner No.1 is wife of the respondent and petitioner No.2 is his daughter. Both mother and daughter have filed this petition under Sections 18 and 20 of the Hindu Adoption and Maintenance Act where in it is prayed that decree for maintenance at the rate of Rs.9,000/- per month w.e.f. 1st April, 2000 together with pendentelite and future interest at the rate of 18 per cent per annum till the date of payment be passed. Along with this petition IA No. 6977/2000 is filed for fixing interim maintenance for grant of interim maintenance at the rate of Rs.9,000/- per month.

2. For purpose of fixing interim maintenance detailed averments as mentioned in the petition or in the written statement filed by the respondent need not be stated. Suffice is to state that the petitioner No.1 is legally wedded wife of the respondent. Both are residing seprartely. Petitioner No.2 is the daughter of petitioner No.1 and respondent who was born out of the wedlock on 9th November, 1987. She is a minor girl. She stays with her mother. It is the case of the petitioners that petitioner No.1 was turned out of the matrimonial home on 20th July, 1993. It is denied by the respondent. Admittedly, the petitioners are not residing with the respondent and living separately. The respondent had filed the divorce petition on 28th July, 1993 against the petitioner No.1 which was dismissed by Sh.M.C.Garg, ADJ Delhi vide judgment dated 30th March, 2000. In para 4 of the petition. It is mentioned that the petitioner No.1 is working as LDC in Government of India and her monthly gross salary is Rs.7,100/- approx, and carry home salary is Rs.5,200/- approx. In reply to this para, the respondent has simply stated that he does not admit the correctness of the facts and averments made in this para require proof by the relevant documents from the office of the petitioner No.1.

3. In so far as income of the respondent is concerned. it is stated in the petition that the respondent is having rental income, salary from Indian Oil Corporation where he is employed as Hindi Steno,Self lease for a flat from Indian Oil Corporation, income form shares etc. The total income of the respondent from all sources is stated to be Rs.40,000/- per month. However, this is denied by the respondent. The respondent was directed to place on record the details of emoluments received by him including deductions as contained in Form-16 issued by his employer. The respondent has placed on record the said Form as per which the gross annual salary is Rs.1,75,255/-. After deductions it comes to Rs.1,75,255/-. After deductions it comes to Rs.1,67,070/- on which payable taxs is Rs.20,585/-. Thus income after payment of tax is Rs. 1,46,485/- which would come to Rs.12,000/- p.m. approx. As already mentioned above, in para 6 of the petition, petitioners have stated about the income of the respondent from other sources. In reply there is no express denial of the income from other sources. The only specific denial is about the shares of Indian Oil Corporation in possession of the respondent and that he does not get any dividend out of any shares. It is not denied that the respondent is getting rental income of Rs.3,000/- p.m. In so far as lease money being received from the employer is concerned, that is already included in the gross salary as shown in Form-16. In view of there being not denial about the rental income of Rs.3,000/- this can be safely added to the salary income of the respondent. Thus if can be conveniently concluded that the monthly income of the respondent is in the region of Rs.15,000/-.

4. It appears that no person is depended upon the respondent inasmuch as there is a specific averment made by the petitioner in the petition that parents of the respondent are not depended on him which is not denied by the respondent in reply. The respondent has further admitted his obligation to maintain his wife and daughter. His only contention is that as per petitioner's own admission, her take home salary was Rs.5,200/- which should be taken into consideration.He further stated is para 8 of the reply that the amount of maintenance to be paid to the wife and children may be determined only by goods deal of consideration of my income from all sources and also the reasonable expenditure which I am expected to make'. The interim maintenance is to be fixed keeping in view the aforesaid factual position.

5. Let us now take stock of the necessary expenses of the petitioner No.2. In the petition, the petitioners have stated that the petitioner No.2 is studying in Apex Public School, Sant Nagar, Burari, Delhi. The monthly fee of the petitioner No.2 including day boarding charges Rs.1,700/-. Apart from that the petitioners have to pay rental charges, expenditure on school uniform, books and other miscellaneous expenses as the petitioner No.2 has to study in the school till about 5.30 p.m. The petitioners have also to pay for the food, clothing, transport, private tuition, medical and other expenses and monthly expenditure of the petitioner come to more than Rs.5,500/-p.m. The petitioner are also staying in rental accommodation and are paying an amount more than Rs.2,000/- p.m. They are also deprived of other facilities like, refrigerator, telephone, gayser etc.

6. In the case of K.Lalchandani vs. Smt. Meenu Laachandani , this court held that wife and children have to be put in the same position as the husband/father and the maintenance has to be in tune with their status and mode of living to which they were used to before separation before the spouses and the wife and children are to be what they enjoyed till the date of separation. Following observation of the Supreme Court in a recent judgment in the case of Padmja Sharma vs. Ratan Lal Sharma also become relevant:

"Maintenance has not been defined in the Act or between the parties whose duty it is to maintain the children. Hindu Marriage Act, 1955, Hindu Minority and Guardianship Act, 1956, Hindu Adoptions and Maintenance Act, 1956 and Hindu Succession Act, 1956 constitute a law in a coded form for the Hindus. Unless there is anything repugnant to the context definition of a particular word could be lifted from any of the four acts constituting the law to interpret a certain provision. All these Acts are to be read in conjunction with one another and interpreted accordingly. We can, therefore go to Hindu Adoptions and Maintenance Act, 1956 (for short the 'Maintenance Act') to understand the meaning of the 'maintenance', in Clause (b) of Section 3 of this Act "maintenance includes (i) in all cases, provisions for food, clothing residence, education and medical attendance and treatment; (ii)in the case of an unmarried daughter also the reasonable expenses of and incident to her marriage" and under Clauses (c)" minor means a person who has not completed his or her age of eighteen years." Under Section 18 of Maintenance Act a Hindu wife shall be entitled to be maintained by her husband during her life time. This is of course subject to certain conditions with which we are not concerned. Section 20 provides for maintenance of children and aged parents.Under this Section a Hindu is bound, during his or her life time, to maintain his or her children. A minor child so long as he is minor can claim maintenance from his or her father or mother.Section 20 is, therefore, to be contrasted with Section 18. Under this Section it is as much the obligation of the father to maintain a minor child as that of the mother. It is not the law that now affluent mother may be it is the obligation only of the father to maintain the minor."

7. These principles are to be kept in mind in deciding the issue at hand.

8. Had the parties been living together the total income of the family would have been Rs.20,200/- (Rs.15,000/- + Rs. 5,200/-). From this three members were to be maintained, namely, both the petitioners and the respondent. The expenditure on the petitioners, in such circumstances, would not have been less than Rs.10,000/-. Even otherwise, this would be reasonable expenditure going by the various expenses which petitioners are required to make as stated in the petition and noticed above. Thus the respondent should pay minimum of Rs.5,000/- to the petitioners. It may be relevant to note that in his written statement in para 4, before giving parawise reply, the respondent has stated that as per the decision of this court.petitioners would be entitled to 1/3rd of the salary of the husband as maintenance. Even by that reckoning the respondent is liable to pay a sum of Rs.5,000/- per month to the petitioners. Thus, looking from any angle, irresistible conclusion arrives at is the magical figure of Rs.5,000/- per month.

9. This application is accordingly disposed of with the direction that the respondent shall pay a sum of Rs.5,000/- per month to the petitioners from March, 1999. The respondent has been paying a sum of Rs.1,000/- per month during this period. After adjusting this amount, arrears would be paid to the petitioners within a period of four months from today. In so far as maintenance at the rate of Rs.5,000/- for future period is concerned, i.e. starting from June, 2001, the respondent shall pay the same at the rate of Rs.5,000/- per month by 10th of each month.

10. The IA stands disposed of on the aforesaid terms.