Vijay Malti vs Rajiv Vig
2006 Latest Caselaw 2089 Del

JUDGMENT

S. Ravindra Bhat, J.

1. The application C.M.No.16660/2005 has been filed under Section 24 and 25 of the Hindu Marriage Act, by the wife (hereafter referred to as the Appellant) claiming maintenance pendente lite, and litigation expenses from the husband (hereafter referred to as the Respondent) for herself as well as her daughter during the pendency of the matrimonial appeal, F.A.O.No.176/1994.

2. The facts necessary to decide the present application are that the parties were married on 5.12.1981 at Delhi and two children; both daughters, were born out of the wedlock. The parties are living separately since 1986. The husband had filed a petition for divorce on the grounds of cruelty and desertion of the wife; the proceeding was decreed in his favor on 28.05.1994. The appeal preferred by the wife is pending on the file of this Court. The elder daughter- who is now married- was earlier residing with the Respondent and the younger daughter, Neha who is pursuing her Chartered Accountancy (C.A) course and who is of marriageable age is residing with the Appellant.

3. The appellant alleges that the Respondent has neglected and deserted her and her younger daughter; he has refused to maintain them, in spite of the fact that he is engaged in his own business relating to the supply of inverters and generators and is earning handsomely every month. The Respondent is allegedly residing in a property of about 300 sq.yards situated at BFH-134, Shalimar Bagh, Delhi which is equipped with all modern and luxurious facilities and amenities, he has a plush office at AD-128, Shalimar Bagh, Ring Road, Delhi-110088 and also maintains five telephone lines. The Appellant also alleges that the Respondent is earning a sum of about 5 lakhs every month; the elder daughter's wedding was conducted by him with great pomp and show. A sum of Rs. 20 lakhs was spent for the event and the Respondent has even gifted the couple a swanky car

4. The appellant states that she is working as a nursery teacher with M.C. Primary school at Ghasipura and is drawing a monthly salary of Rs. 12,289/-.She further states that she does not have sufficient means to perform her younger daughter's marriage and the respondent has not shown any signs of affection towards this daughter but has withdrawn himself from the liability of maintaining them even though he has sufficient means. The Appellant alleges that the Respondent is in possession of substantial securities in the form of bonds, fixed deposits various other policies and is earning good interest income from these investments.

5. The Appellant alleges that the respondent is guilty of bigamy as he got married again even before the divorce was decreed in his favor; he has intentionally deposed false facts that he has remarried one Ms. Neelam Bala only after issuance of decree of whereas he is married to a lady named Seema Vig, prior to 1990 and a male child, was born, whose date of birth according to the School records is 25.02.1990. The appellant has also filed an application under Section 340 of Criminal Procedure Code for initiating proceedings against the respondent to this regard. The appellant therefore, pleads for monthly maintenance for her and her daughter at Rs. 50,000/- and litigation expenses at Rs. 33, 000/-

6. The Respondent has denied all the allegations and has stated, in his affidavit that he is an employee of M/s Diesel Engine Sales and Service since the last 10 years and he is presently earning a salary of Rs. 7, 000/-p.m from which he has to maintain his aged parents, wife, son and his married daughter. The Respondent alleges that the appellant's income is not less than 15,000/- every month and at the time of her retirement she would receive huge benefits and will be on a sounder financial footing than him. He also states that he leads a hand to mouth existence. He alleges that he has one mobile phone and a landline connection, as the calls made are officially, the employer firm pays the said bills. The Respondent further states that the Shalimar Bagh house where he resides is built on a 70 meter plot and is a 3 storeyed structure, owned by his mother. The second floor portion is on rent and the other two floors are used by his parents and his family for residence.

7. The Respondent has further alleged that he is an employee in his father's firm and he earns Rs. 7,000/- every month. The Respondent has filed the decree sheet granted to Smt. Neelam Bhalla in relation to her first marriage and also states that she is known as Seema Vig after her second marriage, to the respondent. He has filed income tax returns of M/s Diesel Engine sales and service for the years 2003-2004, 2004-2005 and 2005-2006, with balance sheet, profit and loss statement, assets and liabilities of the firm, and few other relevant documents.

8. Counsel for the parties reiterated the position taken by them in the pleadings. Counsel for the appellant wife submitted that the evidence on record clearly established that the husband is possessed of substantial means. It was submitted that the balance sheet shows that the firm paid salary to the tune of more than Rs. 3,40,000/- and had showed profits/ service charges, of nearly Rs. 10 lakhs. It was also submitted that the respondent is the only son of his parents, and is actually in charge of the business of automobile parts and servicing, since his father is of advanced age. Learned Counsel submitted that the respondent has perjured himself, because he had stated in his pleadings that the marriage was performed only after the divorce proceedings were decreed, whereas the certificate issued by the Modern school, where the child is studying, disclose that he was born in 1990, which clearly belies that position. It was also submitted that the object of these proceedings is not so much as to claim maintenance for the wife, as to ensure that the second daughter gets fair treatment, and is not denied her share of the patrimony. It was submitted that the appellant does not have any assets, and is dependent on her father, for shelter; she is no doubt earning, but the salary does not bear comparison with the earning of the husband. The second daughter has a right to be treated in the same manner and given the same status as the elder daughter. It was also submitted that the son of the respondent was admittedly studying in a prestigious school in the city.

9. Counsel for the respondent husband submitted that the appellant cannot now claim maintenance, because as per the understanding arrived at by them, when they started living separately, one daughter each was to be maintained by the appellant and the respondent. The respondent fulfillled his obligation, and also married off his elder daughter. It is now up to the wife to fulfill her responsibilities in respect of the second daughter, Neha. Counsel also submitted that the respondent husband, an engineer was working till about 10-15 years ago; he quit his job, and started working for his father. It was also contended that the wife/ appellant is possessed of sufficient means, and has not denied receipt of substantial salary; she also does not have to pay any rent, as she is living with her father. On the other hand, the record shows that the husband, though an only son of his parents, is an employee in his father's concern. His income is meagre, and he has to maintain his family, besides taking care of his aged parents. It was also submitted that the appellant has nowhere pleaded any dire need or necessity to justify a direction for maintenance. As far as the education of the respondent's son is concerned, it was submitted that in our society, even if the parent or the father is financially weak, the grand parents would support such needs; the son was therefore helped in educating the child born out of the second marriage, by the father, who was the employer, and no exception could be taken in this arrangement.

10. Counsel for the respondent submitted that no car was presented to the elder daughter's husband; the vehicle was financed by the bridegroom himself. The photographs relied upon by the appellant wife, to show that marriage was celebrated with ostentation, though not denied, have been explained to say that the respondent's father contributed some amounts. Counsel relied upon the decisions reported as Anirudha Mishra v. Dr. Sujata Acharya 2004 Mat. LR 128; Manokaran @ Ramamoorthy v. M. Devaki 2003 Mat LR 703; and Smt. Manasi Mohanty v. Gokul Chandra Das 2002 Mat LR 462, in support of his submission that where an applicant wife has independent income, the court should not direct payment of maintenance to her.

11. The factual matrix is narrow; both the parties to the marriage have been living separately for almost two decades; divorce was decreed in 1994. One daughter was raised by the husband, and the other, by the wife. The husband claims to have remarried some time, after the decree of divorce was issued he however does not dispute that he is the father of the child who was born in 1990. I would not like to comment on this issue, or even discuss the matter further, since the son is a minor, and he, like the other children, is blameless in the litigation. The elder daughter was married a short while ago. The younger daughter, who is with the appellant wife, is studying. The wife is earning a little above Rs. 12,000/- per month; she does not have any assets, and is living with her father. The husband is an engineer, who claims to be employed by his father, for a monthly salary of Rs. 7000/-. His father is aged 83; the husband is the only son, living with his parents.

12. The proprietorship concern of the husband's 83 year old father, Shri Suraj Prakash, known as M/s Diesel Engine Sales & Service, is an income tax assessed. The husband works there. The income tax documents filed pursuant to orders of this Court show the following picture:

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Assmt. Yr.    Turnover/Sales     Net Income  Salary    
                               (incl.service charges)   Expenditure
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2003-04       Rs. 27,78972.60    Rs. 804033.80         Rs. 3,01,324/-
2004-05       Rs. 20,98,361.26    Rs. 8,36,732.26 Rs.3,47,149/-
2005-06       Rs. 32,57,436.28     Rs. 9,53,077.33 Rs.3,86,267/-
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An analysis of the above figures would reveal that the concern is spending, on an average, nearly Rs. 29,000/- on payment of monthly salaries alone. The net income, on an average, is Rs. 8.64 lakhs, or a monthly average income of over Rs. 72,000/-. The respondent, by his own statement, is living with his father; the latter is an aged senior citizen, of 83 years. In these circumstances, it would be reasonable to assume that the business is actually under the control of the respondent husband. He is able to afford the best education for his son; there appear to be no rental liabilities, since he lives in the family house; indeed he has a separate floor for himself.

13. In Vinod Dulerai Mehta v. Kanak Vinod Mehta the court held that while determining quantum of maintenance to be awarded, income tax returns are not the sole guide for determining the income of the party. Income tax returns, it was held, did not reflect the true income of the party for several reasons. Therefore, they cannot, be the sole guide. In Smt. Renu Jain v. Mahavir Prashad Jain AIR 1987 Del 43, this Court held that if the husband is part of a joint family then the joint family and their business, as well as their social status have to be considered by the court while awarding maintenance. This approach had been adopted in an earlier decision reported as Smt. Neelam Malhotra v. Rajinder Malhotra and Ors. AIR 1984 Del 234.

14. It is clear from the above stated discussions that the respondent has sought to evade the obligation of maintaining his younger daughter. The parties have in their wisdom, divided the siblings and torn the family. Whatever be their differences, the daughters have to receive the same treatment, and are entitled to equal status. The respondent has tried to shield himself by saying that he has maintained his elder daughter and got her married without taking any monetary help from the appellant and similarly the appellant has to get her younger daughter educated and married without expecting any monetary help from the Respondent. The respondent has stated that he with 25 years of standing in his profession as senior service engineer earns just 7,000/- per month which is unbelievable, in the light of the above discussion.

15. A Division Bench this Court in Shri Vinod Babbar v. Baby Swati (RFA 208/2004 decided on: 27.04.2006) held as follows:

9. It is a settled principle of law that both the parents have a legal, moral and social duty to provide to their child the best education and standard of living within their means. The mere fact that the spouse with whom the child is living is having a source of income, even if sufficient, would in no way absolve the other spouse of his obligation to make his contribution towards the maintenance and welfare of the child, even if, the salary/income of that spouse may be less than the income of the other spouse.

16. The Supreme Court, while commenting on the elusive nature of fixation of amounts of maintenance, had stated as follows, in Jasbir Kaur Sehgal (Smt) v. District Judge, Dehradun and Ors. ;

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 the 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.

17. On an application of the principles indicated above to the facts of this case, I am of the opinion that upon a fair estimate, the husband- respondent's income would be in the range of at least Rs. 40,000/- a month. In these circumstances, having regard to his status, which was the status enjoyed by his elder, married daughter, the younger daughter, Neha, too, ought to be entitled to like treatment. She is pursuing higher studies. The appellant is undoubtedly earning Rs. 12,000/- as monthly salary. Yet, the disparity in status between the parties, and their financial capacities is all too evident. I therefore, direct the respondent husband to pay Rs. 7000/- per month to the appellant for the maintenance and upkeep of the said younger daughter Neha. These amounts shall be payable from 1-12-2005. The amounts shall be paid within four weeks from today, and future amounts shall be paid on or before 10th of every month.

18. The application, CM 16660/2005 is allowed in the above terms. No costs.