Shri Kanhaiya Lal Gautam vs Mrs. Vimlesh
2008 Latest Caselaw 21 Del

JUDGMENT

Pradeep Nandrajog, J.

1. The petitioner is aggrieved by the order dated 12.8.2002 where under a monthly maintenance of Rs. 7,000/- has been awarded to the respondent who was then maintaining a minor daughter aged 3 years. As of today, the daughter is aged 8 years.

2. The maintenance aforesaid has been granted to the wife under Section 36 of the Special Marriage Act.

3. The learned Matrimonial Judge has treated the monthly income of the husband at Rs. 25,000/-. This income has been computed on the basis of certain documents which showed that when in Paris, the petitioner was earning Rs. 14,400/- per month. These documents pertain to the year 1996. Learned Judge has opined that during 6? year period which had lapsed when it was deciding the matter, i.e. in the year 2002, the income of the husband would have increased.

4. I may note that version of the wife that the husband was maintaining a showroom in Paris has been disbelieved. The income of the husband has been determined with reference to a salary certificate issued by his employer in Paris. Version of the wife that she is unemployed has been accepted.

5. Questioning the order, it is urged by learned Counsel for the petitioner that in page 5 of the order, the learned Matrimonial Judge has noted that the husband is living in India since the year 2000. Yet in spite thereof, income of the husband has been determined with reference to the certificate issued by the employer at Paris in the year 1996. Second contention urged is that the Court at Paris had awarded an annual maintenance to the first wife of the husband and while so doing had accepted the income of the husband as 2883 French Francs per month which was equivalent to Rs. 14,400/- per month. Learned Counsel submitted that while assessing the distributable income in the hands of the husband, what he was paying to the first wife and rent which he was paying in Paris was not considered by the Court. Lastly counsel submits that the cost of living in Paris being much higher than in India, while apportioning the income of the husband, aforesaid facet has been ignored by the learned Matrimonial Judge.

6. Notwithstanding the plea that as recorded in the order that the husband was in India since the year 2000 when questioned by the Court as to where was the husband working today, counsel very frankly conceded that the husband was working in Paris with Atlas Marketing SRAL.

7. It is obviously a case where the husband came to India in the year 2000 and attempted to project that he stayed back in India.

8. Thus, nothing turns on the fact noted in the order impugned to the effect that since 2000 the husband was in India.

9. With respect to the income of the husband, undisputed position is that in the year 1996 the husband claimed that he was earning a monthly salary of 2883 French Francs which is equal to Rs. 14,400/- per month.

10. The husband was working in a restaurant and one could presume that he would be earning some tips.

11. What is relevant to be noted is that the petitioner disclosed to the respondent when the family of the two was discussing their matrimonial alliance that he was working as a Manager in Paris.

12. Further, on this representation, the respondent agreed to the matrimonial alliance as she claims that commensurate with her educational qualification and family status she would not have married a waiter or a helper in a restaurant.

13. There exists a document, being the Minutes of an Extraordinary General Meeting dated 23.5.2000 filed by the petitioner before the learned Matrimonial Judge. The said documents reads as under:

S.R.A.L. ENSEIGNES DIDOT 62 Rue Didot 75014 Paris

RCS de Paris B 409 118 429

EXTRAORDINARY GENERAL MEETING FOR DISSOLUTION

On 23rd May 2000 at 11 A.M.

The partners of S.A.R.L. ENSEIGNES DIDOT, a limited liability company with a capital of 50,000 Francs with its head office at 62 Rue Didot, 75014 Paris met at the company's head office.

The following were present:

Mr. GAUTAM KANHIYA LAL, owner of...250 units.

Mr. SINGH KULWANT, owner of...125 units.

Mrs. MANIKARAN Soriacoonaree, owner of...125 units.

A total of 500 units constitute the capital.

The meeting was presided over by Mr.GAUTAM KANHIYA LAL, Manager of S.A.R.L. ENSEIGNES DIDOT, who noted that the partners present represent the totality of the capital and that the Assembly can legitimately discuss and take decision with the required majority on the items of the agenda.

The President declared that the extraordinary general meeting has been called to discuss the following agenda.

DISSOLUTIONS OF S.A.R.L. ENGEIGNES DIDOT

The meeting began and Mr.GAUTAM KANHIYA LAL declared that because of a lack of orders and business, the company did not have the means to meet its financial obligations.

Therefore, the Company must be dissolved from 31st December 1999. Various observations were made and since nobody had anything to say, the following resolution was unanimously adopted:

RESOLUTION:

S.R.A.L. ENSEIGNES DIDOT is dissolved from 31st December 1999. The liquidation seat is at the headquarters 62 Rue Didot, 75014 Paris and Mr.GAUTAM KANHIYA LAL residing at 02 Rue Louis Pergaud, 93420 Villepinte is nominated as the Company's liquidator with all powers to pay off the liabilities, to cash on assets and distribute resulting liquidation prime.

All powers are given to the holder of the present document to carry out the formalities required for publicity and de-registration of the company from the trade register.

The present report has been prepared from the information given above and has been signed by all the associates by the President.

14. The document could not be explained by the learned Counsel for the petitioner. Gautam Kanhiya Lal referred to therein is none other than the petitioner.

15. Now, one of the two things must be true. Either petitioner was a partner of S.A.R.L. ENSEIGNES DIDOT or he lied to his wife before the marriage that he was a partner and Manager in the said firm.

16. If he lied, he must bear the consequences of making available requisite funds to his wife commensurate with her status. If the document is correct, it shows the means of the petitioner. It shows that the petitioner is hiding truth from this Court.

17. It is settled law that while granting monthly maintenance the status of the family has to be considered. The sum to be provided to the wife has to be adequate as would be necessary for her to maintain herself, and if she is in custody of a minor child or children, to maintain the said child or children.

18. Since the petitioner is not truthfully coming forward with the correct facts, this Court would have no option but to consider the fact that the petitioner is gainfully settled in Paris. His earnings can be gathered from the fact that he comes periodically to India to contest the divorce proceedings. He is paying maintenance to the first wife in Paris. The status of the two families i.e. the family of the petitioner and the respondent can be ascertained with reference to the residences of the parents of the two parties. The petitioner's parents reside in Bhogal, a middle class locality in South Delhi. The respondent resides with her father in Rohini, a middle class locality in West Delhi.

19. The presumptive finding of income rendered by the learned Matrimonial Judge, under the circumstances, cannot be called perverse.

20. The respondent (wife) is unemployed. She has to maintain her minor daughter who is aged 8 years and goes to a school. Monthly maintenance of Rs. 7,000/- awarded by the learned Matrimonial Judge cannot be called unreasonable or arbitrary.

21. I find no merits in the petition. The same is dismissed.

22. LCR be returned.