Rajinder Singh Saluja vs Sarbjyot Kaur Saluja & Ors
2009 Latest Caselaw 2042 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            FAO (OS) No. 119/2008


                                        Date of Decision : May 14, 2009



RAJINDER SINGH SALUJA                                        .......Petitioner
                   Through:                 Mr. Aman Lekhi, Sr.Adv. with
                                            Ms. Meenakshi Lekhi and
                                            Mr. Jaspreet S. Rai, Advs. for the
                                            Appellant.


                                       Versus


Sarbjyot Kaur Saluja & Ors.                               .......Respondent
                       Through:             Ms. Geeta Luthra, Adv. with
                                            Ms. Akanksha Munjhal, Adv. for
                                            the Respondents.


CORAM :


       HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
       HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA


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

2.     To be referred to the Reporter or not?

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

SANJAY KISHAN KAUL, J. (ORAL)

FAO (OS) No. 119/2008 & CM APPL. No. 16697/2008 (Condonation of delay in filing Cross Objections along with Cross Objections)

1. The dispute is an unfortunate one where the

appellant/husband is arrayed on one side and the respondent/wife

on the other side whereas the two minor children arrayed as

respondent Nos. 2 and 3. The appeal has been filed by the husband

aggrieved by the impugned order dated 30.01.2008 determining

the issue of interim maintenance and facilities to be extended to the

respondents for their residence. The respondents have also filed

cross objections albeit after a delay of 39 days.

2. We may note at the inception that averments made in

the application seeking condonation of delay of 39 days filed by the

respondents for taking on record the cross objections do not evoke

the confidence of the Court. The reason given is that there was a

fracture in the left ankle of respondent no. 1 which caused some

delay and thereafter some time was taken to draft the cross

objections. During this period of time, the respondents were already

legally advised through counsel who was appearing before the

learned Single Judge and in fact the case of the appellant is that the

respondent No. 1 was even attending to legal proceedings and her

presence was recorded in Court proceedings. Learned Senior

counsel for the appellant contends that the appropriation of

maintenance determined in terms of the impugned order itself

shows that the respondent No. 1 accepted the order and the filing

of the cross objections is clearly an afterthought. Respondents had

gone as far as to even file execution proceedings and at no stage

reserved their right to file cross objections.

3. We find force in the contention of the learned Senior

counsel for the appellant. Despite this we have examined the rival

contentions of the parties on the plea of maintenance and the living

arrangements for the respondents taking into consideration that

ultimately it is a dispute between one unit of the family and the

object of any order can only be to ensure that sufficient means are

available for the maintenance of the wife and the children keeping

in mind the financial means of the appellant.

4. It is not in dispute that the only residential property

owned by the appellant is the first floor of house No. 8/15 WEA

Karol Bagh, New Delhi. The appellant is running a Guest House

known as Royal Palace located near Ganga Ram Hospital which is

his source of income and is using a Hyundai Santro Car. The aspect

of the earning capacity of the appellant has been examined by the

learned Single Judge in the impugned order in Paras 4 and 5. The

learned Judge has taken note of the fact that even earlier the

appellant was making available funds to the respondents for their

needs even though there were strained relations. The need has

increased over a period of time and taking into consideration the

fact that even the income tax returns do not reflect the accurate

income of the person, the learned Single Judge determined a sum

of Rs. 25,000/- per month as payable for the maintenance of the

respondents. This amount arrived at by the learned Single Judge in

his discretion after looking into the documents placed on record and

hearing the parties thus, does not call for any interference.

5. We must also take note of the fact that this amount is

not in isolation as the only amount being paid to the respondents.

The directions passed by the learned Single Judge are as under:

"Considering the income of the defendant No. 1 during pendency of this suit, defendant No. 1 shall continue to:

i. bear electricity charges of the house bearing number 8/15 WEA Karol Bagh, New Delhi subject to a maximum of Rs. 5,000/- per month.

ii. He shall continue to pay the school fees/tuition fees and other expenses for the education of the two children. iii. He shall pay a sum of Rs. 25,000/- per month to plaintiff No. 1 on account of household expenses and other misc expenses.

iv. He shall not dispossess plaintiffs from the first floor of House no. 8/15 WEA Karol Bagh, New Delhi.

v. He shall purchase full medical coverage insurance policy for all the three plaintiffs and shall get the same renewed year after year during pendency of the instant suit."

The aforesaid shows that the residence of the respondents is

taken care of as also the electricity charges. Further the school fee,

tuition fee and other expenses for education of children are also

taken care of as also full medical coverage of the insurance policies.

Learned counsel for the respondents makes a grievance that there

is specialized medical treatment required for the children for which

the respondent No. 1 has been expending money and that she has

not received the original policy which should be available to her to

facilitate any claim under the policy. We consider it appropriate to

direct the appellant to hand over the original policies extending the

medical coverage to the respondents within a week from today and

on renewal of said policies, to make available the original policies to

the respondent No. 1. Insofar as any specialized treatment

required for the children is concerned, it is open to the respondents

to move appropriate application in accordance with law for

consideration by the learned Single Judge.

6. A further grievance made by learned counsel for the

respondents is that the son/respondent No. 2 is in the XII Standard

and requires tuitions for which general directions have been passed.

However, we find that direction in respect of school fees/tuition fees

and if there is any specialized tuition required for the children, once

again the respondent No. 1 would have to move the learned Single

Judge in accordance with law for necessary orders in that behalf.

7. Learned counsel for the respondents at length urged

that the amount of maintenance determined is inadequate. Learned

counsel submits that the earning capacity of the appellant is much

more as he is running a Guest House from which he is drawing

higher amount of income than that which has been disclosed.

Learned counsel submits that in view of the well settled legal

position and needs of the wife and the children, at least 60% of the

income of the appellant should be made available for the benefit of

the respondents.

8. We find that taking into consideration, the income of the

appellant, the learned Single Judge has taken care in fixing the

maintenance amount. It cannot be lost sight of that the present

stage is one for determining interim maintenance and it is not

possible to work out an exact amount as evidence is yet to be led.

The amount fixed is even higher than the income reflected in the

income tax returns of the appellant. In this behalf, the learned

Judge has considered the Profit and Loss Account of the business.

Income tax returns cannot be completely ignored as it is the

function of the department to assess the income of an assessee. It

has powers to determine higher amount if income is not disclosed.

Be that as it may, given the prevalent position, the courts have

been taking a more liberal view in determining the maintenance

keeping the general trend in mind that at times, the income tax

return does not reflect the full income of an assessee. Even this

benefit has been made available to the respondents in the present

case while determining the interim maintenance.

9. Learned Senior counsel for the appellant does not

seriously contend that the interim maintenance amount and other

amounts determined in terms of the impugned order call for any

interference at this stage. Learned counsel, however, submits that

the appellant can however not be thrown out of his house

completely and some arrangement should be made for the stay of

the appellant but in a manner satisfactory to both the parties.

10. We are conscious of the grievance made by respondent

no. 1 of domestic violence. Learned counsel for the respondents

has taken us through certain documents in that behalf. In order to

safeguard the respondents, it is necessary to have an arrangement

where the flat is segregated in such a manner that there is no

interaction between the two parties at the time of ingress and

egress. We have taken note of the fact that the allegations of the

respondents is that the appellant No. 1 resides with his mother in

the ground floor of the same property. The appellant has no such

right to remain with the mother though given the exigency of the

situation, he may be at present residing there. This fact also shows

that the appellant has continuous access to property in question.

11. Learned counsel for the appellant as well as the

respondents had given their proposals and counter proposals as to

how the flat ought to be divided. The two proposals given by the

appellant on 8th May, 2009 have been marked „I‟ and „II‟. The

proposal given today by learned counsel for the respondents is

marked as „III‟.

12. We have made it clear that the three bedroom house

should be divided in such a manner that two bedrooms with

adequate area are available for the respondents as the wife and

children are staying there and one bedroom with adjacent area

would suffice with the appellant who would stay alone. The area as

demarcated by the respondents, however, is too inadequate for the

appellant. Out of the two plans submitted by the appellant, learned

counsel for the respondents, on instructions, state that the plan at

„II‟ would be more appropriate than „I‟. We, however, consider it

necessary to make one modification in the plan that the door at

point „A‟ should be closed which opens from the open staircase into

the portion proposed for the appellant and the appellant should

open his own door at or near point „B‟ with a spiral staircase. This

will take care of the apprehension of the respondents of there being

access through a common portion.

13. We may record at this stage that learned counsel for the

respondents of course seeks that ideally the respondent would not

like any portion of the flat to be made available to the appellant. In

fact, the suggestion is that the flat should be sold and 75% of the

amount given to the respondents. We find the suggestion totally

unacceptable for the reason that we are not carrying out any

division of the estate in the present appeal and the appellant must

be provided with some place of residence in a property owned by

him. It is not acceptable that the appellant is thrown out on the

road while the whole flat continues to be with the respondents. We

have already taken care to ensure that a larger area is available

with the respondents and there is minimal possibility of interaction

with the appellant. The three bedroom flat is divided in a manner

where two bedrooms are with the respondents along with the

drawing and dining area, kitchen, toilet and a pantry while the

appellant has one bedroom, toilet and a drawing/dining area. The

appellant will apparently have to make some arrangements for his

kitchen in the space available with him. In case the respondents

want another toilet to be made in the area earmarked for them,

learned counsel for the appellant volunteers to bear the costs for

the same. In this behalf, the respondents may inform the Local

Commissioner, who is being appointed.

14. We are thus of the considered view that the direction

contained in sub-para (iv) of para 7 of the impugned order needs to

be modified in the aforesaid terms. The segregation would require

some work to be done for which the costs shall be borne by the

appellant. Needless to say that the respondents would give

appropriate access to the workmen to carry out the task. The

respondents to make available the premises for said work w.e.f.

18.05.2009.

15. In view of the estranged relationship between the

parties, it would be appropriate to appoint a Local Commissioner to

monitor the completion of the work.

16. We have requested Mr. Sandeep Sharma, Advocate,

A-363, Defence Colony, New Delhi, Contact No. 9811022432, who

is present in the Court, to act as a Local Commissioner. The fee of

the Local Commissioner is fixed for Rs. 25,000/- apart from out of

pocket expenses to be borne by the appellant.

17. The appeal, cross objections and the application for

condonation of delay are accordingly disposed of in the aforesaid

terms leaving the parties to bear their own costs.

18. We still hope that the parties are able to find some final

solution to their dispute. However, though we have put to the

parties whether they are willing to go for mediation, only the

appellant expressed his intent to do so but respondent did not.

19. At this stage, learned counsel for the respondents state

that her client has reconsidered the matter and would like an

endeavour to be made before the Delhi High Court Mediation &

Conciliation Centre on 20th May, 2009, making it clear that

pendency before the Mediation Centre would have no ramification

on the implementation of the order passed by us today. The

Mediation Centre to appoint a Mediator of sufficient seniority who

has expertise in handling matrimonial matters.

20. List for directions on 31st July, 2009 for report of the

Mediator as well as the Local Commissioner.

SANJAY KISHAN KAUL, J.

MAY 14, 2009                        SUDERSHAN KUMAR MISRA, J.
rd