Vinod Kumar Jolly vs Sunita Jolly And Anr.
2007 Latest Caselaw 1094 Del

JUDGMENT

A.K. Sikri, J.

1. Smt. Sunita Jolly was married to Shri Vinod Kumar Jolly on 13.4.1992. It was a second marriage for both of them as they had divorced their respective first spouses. One child Master Karan Jolly was born out of this wedlock who is living with Smt. Sunita Jolly. Unfortunately for both husband and wife this marriage was also not successful. Both are accusing each other for turmoil in their matrimonial life. According to Smt. Sunita Jolly she was forced to leave her matrimonial home in three clothes and meagre articles on 10.9.1992 when she was in advanced stage of pregnancy. She gave birth to Master Karan Jolly thereafter in her father's house. Shri Vinod Kumar Jolly accused his wife for matrimonial discord and filed a divorce petition against Smt. Sunita Jolly on the ground of cruelty and desertion. The said divorce petition is allowed and divorce granted to him. Appeal is pending against the decree of divorce passed by learned ADJ in this High Court being FAO No. 395/96. Smt. Sunita Jolly for herself and on behalf of her son Master Karan Jolly filed petition under Section 18 of Hindu Adoptions and Maintenance Act (hereinafter called 'the Act' for short) claiming maintenance for both of them. This petition was filed on 21.2.1995. It has ultimately been decided by the learned ADJ (Fast Track Court) Delhi on 4.11.2006. Allowing the said petition learned Trial Court had awarded maintenance to Smt. Sunita Jolly @ Rs. 1,500/- per month and Master Karan Jolly is given maintenance @ Rs. 2,500/- per month. The maintenance is awarded to both of them w.e.f. the date of the said judgment dated 4.11.2006. As far as Smt. Sunita Jolly and Master Karan Jolly are concerned, they are satisfied with the quantum of maintenance fixed by the learned ADJ. However, their grievance is that they should have been awarded maintenance w.e.f. the date of filing the said petition, i.e. 21.2.1995 and not from 4.11.2006 i.e. the date of decision. They have, therefore, filed the appeal being RFA No. 122/2007 for this limited purpose. Shri Vinod Kumar Jolly is not happy with the amount of maintenance fixed. According to him the learned Trial Court has not given proper finding about his income and fixed the maintenance at much higher rate. He has, therefore, filed the appeal No. RFA 263/2007 for setting aside of the judgment granting maintenance to his wife and son at the aforesaid rates. Since both the appeals arise out of same judgment, they were taken up together and we propose to dispose of both the appeals by this common judgment. For the sake of convenience, Shri Vinod Kumar Jolly shall be referred to as the appellant and Smt. Sunita Jolly and Master Karan Jolly shall be described as the respondents hereinafter.

2. We may first take up the appeal of the appellant-husband. At the outset, we may record that after decree of divorce granted in favor of the appellant in the petition filed by him under Hindu Marriage Act, the appellant has married third time and there are two children born out of this alliance. He is also maintaining one daughter from the first wife. When the appellant had married the respondent No. 1 he had three brothers and one sister who were physically challenged. Two handicapped brothers have died prematurely and third disabled brother is living with him.

3. The main ground on the basis of which the appellant has challenged the impugned judgment is that while fixing the maintenance, the learned Trial Court has arrived at a finding that income of the appellant is Rs. 50,000/- per month and this finding is totally erroneous and based on 'no evidence'. He has further submitted that the respondents had not given any evidence to show the income of the appellant herein. On the contrary, after the evidence of the respondents was concluded, the appellant had moved an application for additional evidence whereby the appellant wanted to file his income-tax returns and assessment orders to prove his income. However, this application is dismissed by the learned Trial Court vide order dated 2.3.2005 observing that it was for the respondents (who were the petitioners in the said petition) to prove their case.

4. He also pointed out that in the divorce petition which was filed by the appellant, the respondent No. 1 had filed her written statement stating that the income of the appellant was Rs. 5,000/- per month. Therefore, there could not have been any finding to the effect that the income of the appellant would be Rs. 50,000/- per month.

5. In order to substantiate the aforesaid submission, learned Counsel for the appellant referred to the following portion of the impugned judgment and contending that there was no basis to arrive at the finding that the monthly income of the appellant could not be less than Rs. 50,000/-:

The factum of income is something, which is in the personal knowledge of the respondent himself. He has claimed to be an Income Tax Payee. He has admitted to have rental income. He also admitted to be letting out his house on commission basis. He though admits his 25% share in a shop at Rajendra Place, New Delhi and claims that the rest is in the share of his brother, but it has come in his affidavit that his two (2) handicapped brothers have died and third brother is also a handicapped. It is no where the case of the respondent that his sole surviving brother either has a family or children In these facts and circumstances, the share of his other brother would also go to the respondent after his death. In these facts and circumstances total monthly income of respondent from all sources cannot be less than Rs. 50,000/- on this date.

6. He also referred to para-17 of the petition filed by the respondents herein in which the respondents herein only mentioned about the businesses which the appellant herein was running and the property is owned by him and there was nothing stated about the income. This para reads as under:

That the present respondent is having facility of car apart from running an agency business under the name and style of Vinod Dora Agency from Premises No. L-11, Naveen Shahdara, Delhi. There is another agency owned by the respondent known/dealing in Fashion panties books etc. Apart from this business, the respondent is having rental income from the properties situated at Rajendra Place, New Delhi. In short, the standard of the respondent is above average and the respondent is leading luxurious life as the other family members of the family are gainfully employed.

7. He submitted that the statement of the respondent No. 1 in support of her case was to the same effect and nowhere she had stated that the appellant was earning Rs. 50,000/-per month. On the contrary as per the statement of respondent No. 1 she had stated that the appellant had 'discloses his salary as Rs. 5,000/-per month'. It was thus argued that there was no evidence to come to the conclusion that the income of the appellant could not be less than Rs. 50,000/- per month and on the contrary as per the respondents' own case the appellant had discloses his income as Rs. 5,000/ - per month.

8. Other contention of learned Counsel for the appellant was that the decree of divorce was granted in favor of the appellant by the learned ADJ after recording the finding that respondent No. 1 had treated the appellant with cruelty and had deserted him without any justifiable cause. In view of these findings, the respondent No. 1 was not entitled to maintenance under Section 18 of the Act as she was guilty of cruelty and desertion.

9. From the material which has been referred/evidence on record, which has been referred to by the learned Counsel for the appellant, learned Counsel appears to be right in his submission that there is no direct evidence led before the Trial Court to the effect that the income of the appellant would be Rs. 50,000/-per month. At the same time what is to be noticed is that the learned Trial Court has gone into the means and living style of the appellant to arrive at such a finding. For appreciating this, we will have to go through the relevant discussion contained in the impugned order in entirety which is as under:

27. Petitioners are claiming maintenance @ Rs. 2,500/- per month for each. As per Section 23 of the Act, Court has to take into consideration the following facts while determining the amount of maintenance:

(a) the position and status of the parties;

(b) the reasonable wants of the claimant;

(c) the claimant is living separately, whether the claimant is justified in doing so;

(d) the value of the claimant's property and any income derived from such property, or from the claimant's own earnings or from any other source;

(e) the number of persons entitled to maintenance.

28. Petitioner No. 1 has testified as PW-1 about the financial status of the respondent. Petitioners have claimed in the plaint that respondent is running an agency business under the name and style of 'Vinod Dora Agency' from premises No. L-l1, Naveen Shahdara, Delhi. It is claimed that respondent is owning one more agency for dealing in fashion panties and books, etc. It is claimed that respondent is also having rental income from the properties situated at Rajendra Place, New Delhi and is maintaining a car. It is claimed that respondent is living in a luxurious house and is accustomed to high standard of living.

29. In the written statement respondent has simply denied these averments in one line without any specifications. Though, petitioner No. 1 has not stated anything about the financial status of the respondent in his testimony as PW-1, for the purposes of the present case, averments made by her in the plaint can be looked into, keeping in view the nature of proceedings. On this fact, it has come in the cross-examination of DW-1 that he lets out his house on commission basis. He has denied that he owned a Maruti car. He has admitted that he had an agency of Dora, but stated that the same was surrendered by him even prior to the marriage. He has claimed to have 25% share in the shop situated at Rajendra Place, New Delhi and claimed that the rest is in the share of his brother. He stated that he purchased the shop for a sum of Rs. 52,000/- in the year 1977-1978. Its value at present he could not tell. He stated that the shop has been let out to Punjab and Sind Bank on rent. He claimed to be an income tax payee.

30. The factum of income is something, which is in the personal knowledge of the respondent himself. He has claimed to be an income tax payee. He has admitted to have rental income. He also admitted to be letting out his house on commission basis. He though admits his 25% share in a shop at Rajendra Place, New Delhi and claims that the rest is in the share of his brother, but it has come in his affidavit that his two (2) handicapped brothers have died and third brother is also a handicapped. It is nowhere the case of the respondent that his sole surviving brother either has a family or children In these facts and circumstances, the share of his other brother would also go to the respondent after his death. In these facts and circumstances total monthly income of respondent from all sources cannot be less than Rs. 50,000/- on this date. He has the liability to maintain his present wife who is living with him and two (2) children from her. He also has the liability to maintain his daughter from the first marriage. In the totality of the circumstances, it is just and appropriate to grant maintenance @ Rs. 2,500/- per month to the petitioner No. 2, the minor son of the respondent and maintenance @ Rs. 1,500/- per month to the petitioner No. 1 w.e.f. Today.

10. It is clear from the above that the respondents had mentioned following means/businesses/properties of the appellant:

A. The appellant was running an agency business under the name and style of Vinod Dora Agency.

B. He is running this business from Premises No. L-11, Naveen Shahdara, Delhi.

C. He owns one more agency which deals in fashion panties and books, etc.

D. He is having rental income from the property situated at Rajendra Place, New Delhi which means that he owns the said property as well.

E. He is maintaining a car.

F. He is living in luxurious house and is accustomed to high standard living.

11. The learned Trial Court noted that there was evasive denial of the aforesaid pleas in the written statement filed by the respondents herein without any specification. His denial is dealt with by the learned Trial Court in the judgment portion which is extracted above. Even if it is presumed that income is not Rs. 50,000/- per month, the extent of property owned by the appellant and the living style would show that he is having substantial income. What is to be seen is the amount of maintenance which is ultimately awarded. After all the respondents are awarded maintenance only @ Rs. 1500/- and Rs. 2500/- per month respectively. It cannot be said that the appellant is so poor that he is not in a position to pay even Rs. 4,000/- per month to his wife and child. The child of the appellant, namely, respondent No. 2 is 15 years of age. Maintenance petition was filed when he was an infant. He is going to school and at this age the expenses for his brought up would be quite substantial. Directing the appellant to pay maintenance @ Rs. 2500/- per month in these circumstances, is the minimum that was needed and could not be less than this amount. Likewise fixing maintenance @ Rs. 1500/-per month for the respondent No. 1 cannot be but just and reasonable.

12. The Division Bench of this Court in the case of Rajiv Kapoor v. Smt. Seema Kapoor and Anr. observed as under:

The time has changed. The law has developed and to contend today that the relief for grant of maintenance has to be based on bare need or to meet the ends of food, would be a contention without substance and contrary to legislative intent. Quantum of maintenance must essentially have a bearing and relation to the income of the husband/father, facilities available to him, facilities or perks available to him, standard of living and the social and financial status that he is enjoying. The expression 'matrimonial home', by very nature of things, would include the facilities, benefits and status involved to such a home. This concept cannot be dissected under two different heads of matrimonial home and the standard of living in the matrimonial home. They would always have to be determined and construed together.

13. Reliance upon the income-tax returns, in the context of the business owned by the appellant would be of no avail. I may quote here the observations of another Judge of this Court in the case of Sh. Bharat Hegde v. Smt. Saroj Hegde :

19. As noted hereinabove, unfortunately, nobody pays proper taxes to the Government. Self-employed persons seldom disclose their true income. Prudence and wordly wisdom gained by a Judge before whom citizens of all strata of society litigate it can always be used by a Judge to broadly ascertain as to what is going on in the society. By no means, said knowledge can be used where law requires a fact to be conclusively proved. But where the law requires a Judge to form an opinion based on a host of primary data, a Judge can formulate an opinion pertaining to the likely income from the capital assets of the husband.

After taking divorce from the respondent No. 1 the appellant has married third time. Two children are born from the new matrimonial alliance. If the appellant can have the luxury of the third marriage and can bring up the children born of the said marriage, we fail to understand as to why he should not own the responsibility qua two respondents and pay the maintenance at the aforesaid rates which would hardly ensure bare existence.

14. Insofar as the second contention is concerned, the judgment passed by the learned ADJ in divorce petition filed by the appellant herein is under challenge and the appeal is pending in this Court. Therefore, said judgment and decree has not attained finality. In view thereof, the respondent No. 1 would be entitled to claim maintenance and the petition under Section 18 of the Act would be competent. Dealing with identical situation, Gujarat High Court in the case of Vihalal Mangaldas Patel v. Smt. Maiben Vihalal Patel held as under:

The second contention that husband having obtained a decree for divorce on the ground of desertion by wife, she has become disentitled to maintenance also cannot be accepted. Firstly, the divorce has not become final. It is true that the decree for divorce has been passed and District Court has dismissed the appeal of the Wife. However, the matter is pending in Bombay High Court by way of a writ petition by the wife which is admitted and rule is issued. It is also true that interim relief is not granted in that petition. Thus, the decree for divorce has not become final. Moreover, after the decree for divorce, there cannot be any desertion or continued desertion. Therefore, after the decree for divorce, if a question arises for maintenance, it has to be decided on all the facts and circumstances of the case and at this interim stage, it cannot be said that the wife is not entitled to maintenance.

15. We agree with the aforesaid view. Moreover, that would not have any bearing on the maintenance awarded to the child. We, therefore, do not find any merit in the appeal preferred by the appellant and dismiss the same.

16. Insofar as other appeal filed by the wife and child of the appellant is concerned, we find from the impugned judgment that no reasons are given by the learned ADJ as to why the direction is given to pay maintenance from the date of the order only and not from the date of filing of the petition. The normal rule is that the maintenance is to be allowed from the date of filing of the petition. If this rule is to be deviated, there has to be special reasons for adopting such course. We find none. Therefore, second appeal has to be allowed. The judgment dated 4.11.2006 is modified to the extent that maintenance @ Rs. 2500/- to the respondent No. 2 and Rs. 1500/- per month to the respondent No. 1 shall be paid by the appellant to them w.e.f. 21.2.1995. The appellant, however, shall be entitled to seek adjustment of the amounts of maintenance which the appellant had paid to the respondents in the proceedings in divorce petition which he was ordered to pay under Section 24 of the Hindu Marriage Act. Adjustment of only that amount which was paid after 21.2.1995 shall be given. Arrears of maintenance shall be calculated and paid by the appellant to the respondents within two months. In case appellant wants to pay the arrears in Installments, he shall be at liberty to approach the Trial Court for this purpose and such a request, if any, shall be considered by the Trial Court on its own merits.

RFA No. 263/2007 is accordingly dismissed and RFA No. 122/2007 is allowed in the aforesaid terms.

No costs.