Baby Rupali And Anr. vs Rajesh Grover And Ors.
2005 Latest Caselaw 476 Del

JUDGMENT

T.S. Thakur, J.

1. The plaintiffs had in this suit made an application for the grant of interim maintenance. By an order dated 11th July, 2001, this court had, with the consent of the parties, awarded a sum of Rs. 4,000/- per month to plaintiff No. 1. That order did not make any provision for plaintiff No. 2 who happens to be the mother of plaintiff No. 1. IA No. 13002/2000 filed by the mother seeking a sum of Rs. 20,000/- per month as maintenance for plaintiff No. 2 was heard and disposed of by this court in terms of aeparate order dated 19th December, 2001. This court had, looking to the averments made by the parties in their respective pleadings and the submissions made in support thereof, held that a sum of Rs. 1,500/- per month from the date of the filing of the application towards maintenance of plaintiff No. 2 would suffice. The plaintiff wife was not satisfied with the said order and challenged the same in FAO (OS) 34/2002 before a Division Bench of this court. By an agreed order dated 28th July, 2003, passed by the appellate court, the appeal was allowed and the matter remitted back to this court for fresh orders on IA 13002/2000 taking into consideration the documents already on record and those that may be placed on record by the parties. That is precisely how the matter has once again been argued before me by counsel for the parties.

2. Mr. Jauhar, learned counsel for the plaintiffs argued that both the plaintiffs were without any independent source of income or means to maintain themselves. The fact that the plaintiff No. 2 was a housewife, unable to support herself financially was, according to the learned counsel, evident from the pleadings on record. It was also evident from the fact that the defendant husband had, by conceding payment of Rs. 1,500/- per month towards maintenance, impliedly accepted the inability of the wife to support herself. It was contended that the question that fell for consideration of this court was not whether the plaintiff No. 2 was entitled to any maintenance. The question was as to what the amount of maintenance should be. He urged that the defendant husband was a prosperous and wealthy businessman who was leading an opulent life style sufficiently indicative of his financial capacity to pay a reasonable amount to plaintiff No. 2, his wife. This payment has, according to the plaintiff, to be commensurate with the status of the husband and the comforts which he and his other family members are enjoying. The material on record, argued Mr. Jauhar, was sufficient to justify the award of a sum of Rs. 20,000/- claimed by the plaintiff towards maintenance.

3. For the husband defendant, on the other hand, it was submitted that while the incapacity of the wife to support herself was not in dispute, the evidence produced by the respondent shows that she was not in real need of any financial assistance from the husband. It was submitted that she is the daughter of a wealthy businessman who was leading an ostentatious and extravagant life style. The defendant husband was, on the contrary, in financial doldrums on account of his ill-health and business losses.

The allegation that the defendant is carrying on business in different names is also, according to the learned counsel, false and unsupported by any material. The defendant husband's income was, according to the learned counsel for the defendant, limited to a rental income of Rs. 10,000/- per month apart from a meagre income coming from the business which the defendant has recently started. Reliance in support of that submissions was placed upon the income tax returns for the years 1994-95 onwards in which the income of the defendant ranges between Rs. 38,031/- to Rs. 1,59,961/- per year. Reliance is also placed upon copies of certain documents produced by the defendant to show that M/s Ram Lal Grover and Sons where the defendant had -+ share till 27th May, 1998 stood dissolved and the firm had, for a year or so, suffered losses also.

4. The finding recorded by this court in its order dated 19th December, 2001 that plaintiff No. 2 wife was unable to support herself was not assailed by the husband. Even before me the fact that the wife does not have any independent source of income sufficient to sustain her has not been disputed. What was argued was that parents of the plaintiff No. 2 are financially well-off and are providing for the said plaintiff. There was, therefore, no real financial distress for the plaintiff to call for any assistance or award of maintenance from the defendant. The obligation of the husband to maintain his wife arises no sooner it is established that the wife is unable to maintain herself. The financial capacity of the parents of the wife is, in that regard, wholly inconsequential. The fact that the parents of the wife are providing shelter or support to her when she requires the same does not absolve the husband of his duty to provide maintenance if such a claim is otherwise justified and legally tenable. The obligation of the husband to maintain his wife and children does not depend upon the ability of the parents of the wife to maintain them nor does it depend upon whether or not they are doing so. The obligation is independent of any such consideration and must be viewed accordingly. It is, in that view, unnecessary to examine more closely the contention urged on behalf of the defendant that the parents of the wife are well-off and that they are providing for all the essential needs of their daughter.

5. What remains to be determined is in essence the real dispute between the parties. This court had, as noticed earlier, awarded Rs. 1,500/- towards maintenance to the wife. While the husband did not challenge the said order, the wife assailed the same before the Division Bench on the ground that the amount awarded was meagre. The remand to this court is thus essentially meant to give a second look to the material on record in so far as the quantum of maintenance is concerned.

6. Several affidavits have been filed by the parties in the course of these proceedings making allegations and counter allegations against each other in particular regarding the properties which the defendant husband or his family owns and the business that he is carrying on. While there is some dispute in relation to all these assertions, the husband has, in his affidavit filed on 1st March, 2001, made the following admission :

"The respondent says that the only substantial source of income of this Respondent is the rental income of Rs. 10,000/- per month. A perusal of the Income Tax return of this Respondent (Annexure R-4 above) will reveal that the annual income of this Respondent from his sole proprietorship business is a meager Rs. 16,665=00 and the income of this Respondent after deduction of income tax was a meager Rs. 7,304=50 per month."

7. The case of the plaintiff wife, all the same, is that the monthly income of defendant husband is not less than Rs. 2,00,000/- per month. She asserts that the husband is a partner in the following family business concerns:

(i) Ram Lal Grover and Sons

(a) at Loha Mnadi (Naraina) and

(b) Ajmeri Gate

(ii) Grover Bhutani Associates

(a) (Dump) Shakur Basti

(iii) Grover Steel Corp.

(a) Loha Mandi (Naraina)

(iv) Grover Agencies

(a) Ajmeri Gate

(v) Bath Shopee

(a) Loha Mandi (Naraina)

(b) Showroom at G.B. Road

8. It is also the case of the wife that the husband is Realizing a rent of more than Rs. 1,00,000/- per month in respect of properties situate in G.B. Road and rented to State Bank of Patiala. They are, according to the plaintiffs, paying more than Rs. 20,000/- salary to their household staff. The defendant has, according to the plaintiff, sold one of the properties situate in Commercial Complex, DLF for more than Rs. 25,00,000/-. Copies of sale deeds executed in that regard have been placed on record by the plaintiff from which it does appear that the husband has, by the said two sale deeds, sold two items of property for a consideration of Rs. 1,50,000/- and Rs. 2,50,000/- respectively. The wife also places reliance upon documents placed on record to show that the expenses which the father incurs on the education of his son is itself indicative of his income being much more than what he alleges it to be.

9. The quantum of maintenance that the court may award to the wife would depend upon her needs keeping in view the paying capacity of the husband and the life style to which the parties are accustomed before they separated. All these aspects would vary from case to case and shall have to be determined in the peculiar facts and circumstances attendant upon each case. At the stage of grating interim maintenance, the court does not hold a comprehensive or detailed inquiry. That part is left to be done in the main suit itself. All the same, the court has to arrive at a reasonable figure by reference to the material that is available on record. Any such determination cannot be precise in the absence of clear cut evidence on both sides and the absence of cross-examination of the parties who have sworn affidavits in support of their respective versions. Some amount of guess work is, therefore, involved in any such process at the interim stage. Neither the law nor the parties before the court can expect any mathematical accuracy in such a determination. The observation of the Supreme Court in Smt. Jasbir Kaur Sehgal v. District Judge, Dehradun and Ors. to the following effect is, in this regard, opposite :

No set formula can be laid for fixing the amount of maintenance. It has, in the very nature of things, to depend on the facts and circumstances of each case. Some scope for leverage can, however, be always there. The court has to consider the status of the parties, their respective needs, the capacity of he husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate.

10. Reference may also be made to a Division Bench decision of the Bombay High Court in Vinod Dulerai Mehta v. Kanak Vinod Mehta where the court held that in suits for maintenance, income tax returns are not the sole guide for determining the income of the party in such proceedings. Income tax returns, held the court, did not reflect the true income of the party for several reasons and cannot, therefore, be the sole guide. In Smt. Renu Jain v. Mahavir Prashad Jain AIR 1987 Delhi 43, a Single Bench of this court held that if the husband is a joint family then the joint family and their business as also their social status must be considered by the court while awarding maintenance. To the same effect is the decision of another Bench of this court in Smt. Neelam Malhotra v. Rajinder Malhotra and Ors. AIR 1984 Delhi 234.

11. Two distinct aspects need to be considered in the above backdrop. First relates to the admitted income of the defendant husband and the other a reasonable assumption of the income being higher than what is admitted having regard to the surrounding circumstances and the ordinary human conduct. If the defendant's admission is the threshold, his income is around Rs. 10,000/- from the rental that he receives and around Rs. 1,000/- from the business that he carries on making a total of Rs. 11,000/- per month. That is not, however, in my opinion a fair and reasonable estimate of what he may be earning in reality. The fact that the defendant husband was a partner in the family business run in different names and styles at different places in the city is clearly evident, although according to the defendant, his partnership with his father stand dissolved and the business closed. There is, however, every possibility of such dissolution having been contrived to reduce liabilities on various fronts including claims for payment of maintenance. Having regard to the nature of the business which the family is engaged in, the number of concerns that were doing such businesses, the property which the family appears to be owning including that which the defendant husband has sold, the income of the defendant despite the illness that he claims he was suffering from, cannot be as meagre as Rs. 11,000/- per month. The defendant had, on his own, conceded a sum of Rs. 4,000/- towards maintenance for his daughter. The requirement and the needs of plaintiff No. 2 wife may not be far in excess of that amount but the same cannot also be far less.

12. In the circumstances and having regard to the cost of living in a place like Delhi as also the life style which the parties have been used to, I am inclined to hold that plaintiff No. 2 is entitled to a sum of Rs. 5,000/- towards maintenance from the defendant over and above the amount which the said defendant has agreed to pay to his daughter, plaintiff No. 1. I am also of the view that the financial capacity of the defendant husband is such as would not make it burdensome for him to pay that amount

13. I accordingly allow this application in part and direct that the plaintiff No. 2 applicant shall be paid by the defendant husband maintenance @ Rs. 5,000/- per month from the date of the application till final disposal of the suit by this court.