Smt. Manju Gupta vs Sh. Sanjay Garg
2009 Latest Caselaw 1077 Del

*          HIGH COURT OF DELHI : NEW DELHI

+    I.A. No.2755/2007 & I.A. No.888/2009 in CS (OS) No.444/2007

                      Judgment reserved on: 24th March, 2009
%                     Judgment decided on :   31st March, 2009

Smt. Manju Gupta                                    ......Petitioner
                      Through : Mr. S.K. Bhaduri, Adv. with Ms. Indrani
                                Ghosh, Adv.

                      Versus

Sh. Sanjay Garg                                     ....Respondent
                      Through : Mr. S.K. Verma, Adv.

Through: Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                   Yes

2. To be referred to Reporter or not?                                Yes

3. Whether the judgment should be reported                           Yes
   in the Digest?

MANMOHAN SINGH, J.

1. The petitioner/wife filed a petition under Section 18 of the

Hindu Adoption and Maintenance Act, 1956 praying for interim

maintenance in favour of the petitioner and against the respondent to pay

a sum of Rs.30,000/- per month to the petitioner w.e.f. 26.5.2004.

2. Brief facts of the case are that the marriage between

petitioner and respondent was solemnized on 29th June, 1997 at Delhi

according to Hindu rites and ceremonies. A male child was born from

the wedlock on 23rd November, 1999.

Petitioner's case

3. It is alleged by the petitioner that at the time of marriage, the

parents of the petitioner gave sufficient jewellery, istridhan and other

articles to the petitioner including a Maruti Esteem Car. However, even

after spending a substantial amount of money in the marriage of the

petitioner, the respondent being dissatisfied started taunting and

torturing the petitioner. It is further alleged that the petitioner was treated

like a maid servant by the respondent and his family members. There

have been constant mental as well as physical pain, torture and agony to

the petitioner by the respondent and his family members.

4. On the occasion of "Chhoochak" the petitioner's parents paid

a sum of Rs.3,00,000/- to the respondent in February, 2000 as demanded

by the respondents. The Maruti Esteem Car given on marriage has been

sold by the respondent and the money received from it has been lying

with him.

5. On 26.5.2004, the petitioner was turned out of the

matrimonial home in wearing apparels after beating her mercilessly.

The child was staying with the respondent.

6. It is submitted that the respondent is a businessman and has

been doing the business of readymade garments and tailoring shop under

the name and style of M/s. Vdeshi at shop owned by him bearing

No.1/12, Roop Nagar, G.T. Karnal Road, Delhi-1100 06 and has been

earning a profit of more than Rs.1,00,000/- per month from the said

business. It is further submitted that the respondent is also having two

Cars bearing Regn. No. DL-1CF 1716 and DL 2 CK 3050 and leading a

luxurious life. The wife of the respondent is entitled to enjoy the same

status as that of the respondent herein being his legally wedded wife. He

is also having his own house No.10 A/33, Shakti Nagar, Delhi-1100 07

and/or is having share in the said house. The petitioner has no source of

income and is staying at her parental home at the mercy of her brother

and mother. The respondent and his other family members have not

returned the jewellery, istridhan and other articles of the petitioner

despite the repeated requests of the petitioner.

7. The petitioner has filed a separate proceedings for return of

istridhan against the respondent. The petitioner has also filed a petition

for custody of the child against the respondent and the said petition is

still pending adjudication.

8. During the proceeding of the guardianship petition, the

petitioner came to know that the respondent has got the child admitted

in International Sahaja School, Talnoo, Dharamshala, H.P. and has paid

sum of Rs.79,000/-, Rs.1,08,000/-, Rs.15,000/- vide receipt No.891

dated 30.3.2005, receipt No.1247 dated 25.3.2006 and receipt No.1248

dated 25.3.2006 respectively as tuition and other fees to the said school.

9. The petitioner submits that a bare perusal of the money spent

by the respondent in respect of School fee, Tuition fee and other charges,

bank deposits and living style of the respondent as aforesaid, makes it

clear that the respondent is earning more than Rs.1,00,000/- per month

from the said business of Readymade Garments & Tailoring Shop. The

petitioner submits that the respondent has not paid a single penny to the

petitioner towards her maintenance w.e.f. 26.05.2004 despite several

requests and demands made by the petitioner. In fact, the respondent has

neglected and refused to maintain the petitioner in all respect, therefore,

the petitioner is entitled to a sum of Rs.30,000/- (Rupees thirty thousand)

per month as her monthly maintenance from the respondent.

Respondent's case

10. The respondent has denied all the allegations raised against

him by the petitioner. It is submitted by the learned counsel for the

respondent that only a sum of Rs.2 lac has been spent by the father of the

petitioner in her marriage. It is submitted that the respondent or any of

his family members never harassed, tortured or humiliated the petitioner

in any way. It is stated that the petitioner on her own will left the

matrimonial home as she had developed illicit relation with her

paramour Guruji @ Parveen Kumar in the month of February, 2004.

Even the learned Judge (Guardianship) has not granted any relief to the

petitioner after holding several chamber meetings with the child and the

parties. The respondent has denied that he is the owner of the shop

bearing no.1/12, Roop Nagar, G.T. Karnal Road, Delhi as the said shop

is on rent in the joint name of the Uncle and Brother of the respondent

for the last more than 10 years. The respondent has also denied that he

has got any Maruti Esteem Car from the petitioner at the time of

marriage. The respondent has denied that the petitioner has no source of

income and is dependent on her brother for living as she is staying with

her paramour Guruji @ Parveen Kumar since 26.5.2004

11. It is also submitted by the respondent that he is not the owner

of the alleged two cars and has annexed the copy of RC's of both the

cars. It is further submitted that the respondent is not the owner or has

any share in house No.10A/33, Shakti Nagar, Delh-1100 07.

12. It is contended by the respondent that to save his matrimonial

relation, a meeting was held on 26th May, 2004 by the mediator Mr.

Jagdish Kumar Goel to settle the matter amicably but the petitioner

refused to strain the illicit relation with her paramour. Thereafter, on 1st

June, 2004 a mutual settlement was arrived between the brother and

father of the petitioner, and, brother and uncle of the respondent and the

same is signed by them and Mr. Jagdish Kumar Goel (Mediator). The

petitioner, however, has denied the abovesaid meeting and also denied

that she or any of her parental family members had signed the mutual

settlement.

13. The income tax return of the respondent reflects that his

income vary from apprx. Rs.76,000/- to Rs.1,45,000/- from the year

2001 to 2006. During the course of arguments, the petitioner has shown

the photographs of the air conditioned showroom built on two floors in

Roop Nagar Market run by the respondent. Although in para 32 of the

written statement, the respondent contended that the respondent is not

earning Rs.1 lac per month from his tailoring work. Similar statement is

made in para 24 of the written statement.

14. The petitioner has relied various judgments in support of her

contention. In the case of Rekha Deepak Malhotra vs. Deepak

Jagmohan Malhotra, II (1999) DMC 453, the Bombay High Court

held :-

"7. I have considered the various arguments put forward by the learned counsel for the parties. While deciding application under Section 18 of the Act or maintenance, a number of factors have to be kept in view. This section provides that subject to the provisions of this section, the wife shall be entitled to maintenance during her life time. It is conditional on the wife being able to satisfy one or the other grounds mentioned in sub-section (2). Section 18(2)(b) provides that a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it would be harmful or injurious to live with her husband. Keeping this provision in mind the facts narrated by the wife have to be prima facie looked into."

15. In the case of Gaurav Nagpal vs. Sumedha Nagpal,

MANU/DE/8829/2007, this court made the following observations:-

"5......Section 18 of the Act recognises, accepts and gives legal right to a married woman to claim maintenance from her husband subject to the condition that the requirements of the Sections are satisfied. Section 18 itself does not specify the minimum or maximum amount that can be awarded as maintenance to a wife. This is determined by the Courts keeping in mind the social and economic status of the parties, reasonable want and requirements of the wife and income and status of the husband. Maintenance awarded to the wife should be sufficient to enable her to live in somewhat the same degree of comfort as was available in her matrimonial home but it should not be exorbitant and so high that the husband-non-applicant is unable to pay and exposes him to contempt or other coercive proceedings. Lifestyle of the parties during happier times and comparison of the lifestyle of the claimant-applicant after the relationship has soured, has to be taken into consideration to determined just and fair maintenance to be awarded to the wife and what should be paid by the husband. The maintenance awarded has to also take into consideration the income and earnings of the husband-non-applicant.

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8. The Courts in India while deciding the question of maintenance, interim or final, are conscious of the fact that there is a tendency among parties not to disclose truly, fully and completely, the income earned by them."

16. In the case of Neelam Malhotra vs. Rajinder Malhotra,

1994 AIR (Del) 234 it was held that there can be no precise or settled

formulae to assess the quantum of interim maintenance. Each case

depends upon its own facts. In Dev Dutt Singh vs. Smt. Rajni Gandhi,

1984 Delhi 320, Avadh Behari, J. (as he then was), while considering the

question of grant of maintenance pendent lite under Section 24 of the

Hindu Marriage Act, 1955 observed that the Section is not a code of

rigid and inflexible rules, arbitrarily ordained to be blindly obeyed: it

does not enact any mathematical formulae; it gives wide power, flexible

and elastic to do justice in a given case and leaves everything to the

Judge's discretion. Both Section 18 of the Act as also Sections 24 and

25 of the Hindu Marriage Act, deal with grant of maintenance

allowance and in the absence of any set procedure for determining

maintenance in proceedings under Section 18 of the Act, the aforesaid

observations in Dev Dutt Singh's case (supra), in my view, hold good.

17. There is no doubt that where the person is self employed, he

tends to disclose incorrect income in the income tax return filed by him.

There can be no precise or settled formula to assess the income earned

by the person who is self-employed in the business. Each case has to be

decided on its own facts looking at the living status of the parties. There

is no mathematical formula to precisely calculate any accurate amount to

be given during pendency of the interim maintenance proceedings. The

legislature gives wide and flexible power to the court to decide about the

maintenance pendente lite considering the income and other factors like

status of living, day to day expenses of the parties etc.

18. Since in the present case there is no dispute that the wife has

no source of income and she is living with her brother and is a non-

working woman. Though the respondent has denied that he has any car

in his name and has also denied that he is the owner of the shop at

Roop Nagar or of the house at Shakti Nagar but it is not in dispute that

he is running a shop at Roop Nagar and admitted earning handsome

amount from his shop. But this Court can not loose sight of the fact that

he travels in car, running a reasonably good business as per bank account

and also have good status of living.

19. On the facts and circumstances mentioned above, I am of the

view that the wife should be given at least an amount where she could

reasonably maintain a status and mode of life which she used to live with

her husband. It is settled law that when there are diverse claims made by

the parties, one inflating the income and the other suppressing, an

element of guess work is always done in such cases.

20. In my view, the petitioner is entitled to an amount of Rs.

10,000/- per month as maintenance with effect from March, 2007 i.e. on

the date of filing of application till March, 2009. The arrears of

maintenance shall be paid by the respondent to the petitioner within two

months from today after the adjustment of the amount of Rs.60,000/-

already paid in compliance of the orders passed by this Court. The

defendant shall also continue paying future maintenance from April,

2009 by 10th of each month.

Both the applications are disposed of in the above terms.

MANMOHAN SINGH, J MARCH 31, 2009 SD