Delhi High Court
Yash Khanna vs Bhawna @ Bhawna Khanna on 29 April, 2010
Author: Aruna Suresh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 1083/2009 & CM No.14095/2009
Date of Decision: April 29, 2010
YASH KHANNA ..... Petitioner
Through: Mr.Sameer Chandra,
Advocate.
versus
BHAWNA @ BHAWNA KHANNA ..... Respondent
Through: Mr. B.K.Verma, Advocate
with Respondent in person.
%
CORAM:
HON'BLE MS. JUSTICE ARUNA SURESH
(1) Whether reporters of local paper may be
allowed to see the judgment?
(2) To be referred to the reporter or not? Yes
(3) Whether the judgment should be reported
in the Digest ? Yes
JUDGMENT
ARUNA SURESH, J. (Oral)
1. Parties to the petition were known to each other, from
before and they got married on 20 th February, 2008 in Arya Samaj
Mandir according to Hindu Rites. Petitioner claims that he was
given a drink by the respondent and after having the same he lost his
senses and it was in that condition that the alleged marriage took
place. Criminal litigation is also going on inter se the parties.
2. Respondent filed a petition under Section 9 of the
Hindu Marriage Act (hereinafter referred to as „the Act‟) against the
petitioner seeking restitution of conjugal rights. In the said petition,
she moved an application under Section 24 of the Act. Trial Court
assessed income of the petitioner as not less than Rs.30,000/- per
month and vide its order dated 13 th August 2009, awarded
maintenance at the rate of Rs.10,000/- per month to the respondent,
besides Rs.8,000/- as litigation expenses.
3. Aggrieved by the said order of the Trial Court dated
13th August 2009, present petition has been filed by the petitioner.
4. Mr.Sameer Chandra, counsel appearing on behalf of
the petitioner has argued that petitioner is a commission agent and is
earning about Rs.5,000/- per month and therefore, maintenance
awarded by the Trial Court is on much higher side as it is beyond the
earning capacity of the petitioner.
5. It is not disputed that he owns a Santro Car and a
Pulsar Motor Cycle. Petitioner has tried to state that this Car
belonged to his father, which he inherited after his death. It is
submitted that now the Car stands transferred in the name of his
mother. When questioned, it was admitted that petitioner transferred
the Car in the name of his mother after impugned order was passed
against him. This conduct of the petitioner clearly indicates that he
has no intention to pay maintenance to the respondent. He also owns
a Pulsar Motor Cycle. Admittedly, loan raised by the petitioner for
purchase of the Motor Cycle has been cleared off. Besides,
petitioner has a mobile phone. Petitioner does not have any liability
to maintain his mother as she owns a house and has sufficient rental
income from the same. Petitioner has tried to emphasize that his
TDS Form for the period 21st July, 2007 to 31st March, 2008 indicate
that his annual income was Rs.65,000/-
6. A person earning only about Rs.5,000/- per month
cannot maintain a Car and a Motor Cycle. He is a man of means.
His TDS Form for the period 21 st July, 2007 to 31 st March, 2008
must not be reflecting his correct income.
7. Trial Court, therefore, rightly did not assess income of
the petitioner on the basis of the TDS Form. While awarding interim
maintenance to the respondent, Trial Court observed:
"24. Although there is no evidence about the
actual income of the non applicant the court can
legitimately take into consideration the ability
of the husband to earn a reasonable amount. I
have no option but to indulge in guess work.
Since the non applicant/husband is an able
bodies person, who admittedly owns a santro
car and a motor cycle and phone and
maintaining all these things, so indulging in
guess work I hold that the monthly income of
the non applicant is not less than Rs.30,000/-
per month.
25. So far as the question of quantum of
maintenance is concerned in „Annurita Vohra v.
Sandeep Vohra; 2004 (3) AD 253‟ and
S.S.Bindra v. Tarvinder Kaur; AIR 2004 Delhi
442; it was held that the family income should
be divided equally between all the family
members entitled to maintenance with one extra
portion/share being allotted to the earning
spouse since extra expenses would necessarily
incur. Since the non applicant has failed to
show his any other liability accordingly, the
applicant is granted Rs.10,000/- per month as
maintenance pendente lite from the date of
filing of application, till the disposal of the
present petition. The applicant is also entitled
to an amount of Rs.8000/- as litigation
expenses."
8. As discussed above, Trial Court was right in assessing
income of the petitioner tentatively in the absence of any proper
proof of actual income of the petitioner. Petitioner has taken a plea
that he is not legally married to the respondent. Prima facie his
submission is without any force. Respondent has produced in Court
some photographs of the marriage as well as video CD. CD was
played on the computer and on viewing it, it was prima facie clear
that marriage between the parties was performed according to Hindu
Rites and Ceremonies.
9. Under these circumstances and in view of my
discussion as above, I find no merits in this petition. The same is
accordingly dismissed.
CM No.14095/2009 (for stay)
10. With disposal of the petition, both these applications
have become infructuous and the same are accordingly dismissed.
ARUNA SURESH
(JUDGE)
APRIL 29, 2010
sb
