Vivek Rastogi vs Archana Rastogi
2010 Latest Caselaw 682 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     FAO(OS) No.326/2008 & CM No.10603/2008

VIVEK RASTOGI                    .....Appellant through
                                 Mr.Arun Monga &
                                 Mr. Vivek Sharma, Advs.
                  versus

ARCHANA RASTOGI                  .....Respondent through
                                 Ms. Geeta Luthra, Sr. Adv.
                                 with Mr. Parinay D. Sah,
                                 Adv.

%                      Date of Hearing: December 03, 2009

                       Date of Decision: February 08, 2010

      CORAM:
*     HON'BLE MR. JUSTICE VIKRAMAJIT SEN
      HON'BLE MR. JUSTICE SUNIL GAUR
      1. Whether reporters of local papers may be
         allowed to see the Judgment?             Yes
      2. To be referred to the Reporter or not?   Yes
      3. Whether the Judgment should be reported
         in the Digest?                           Yes

VIKRAMAJIT SEN, J.

1. This Appeal has been filed against the Judgment dated

3.4.2008 passed by the learned Single Judge granting interim

maintenance in a suit filed by the Respondent/Wife in her Suit

under Sections 18, 20 and 23 of the Hindu Adoptions and

Maintenance Act, 1956 („HAM Act‟ for short). By the

impugned Judgment, the learned Single Judge has directed

the Appellant/husband to pay interim maintenance at Rupees

one lakh per month, subject to the Respondent/Wife vacating

the house allotted to the Husband by his employer. The Court

took notice of the fact that spouses owned a Flat addressed

as Flat No.702, Block No.A-3, Uniworld Citi, Gurgaon and

another addressed as 102/46, Silver Oaks, DLF Phase-II. It

was in this regard that the Respondent/Wife was granted the

choice of residing in either of the two Flats; the

Appellant/Husband was obligated to get the house chosen by

the Respondent/Wife repaired/whitewashed etc. The

Respondent/Wife was obligated to carry all his articles and

belongings which were not owned by the Husband‟s

Employer. The Court ordered that if the Respondent/Wife

declined to shift to any of the two jointly owned flats, "she

may take on rent any other house suitable to her and pay rent

out of the maintenance, payable to her". The Wife has

vacated accommodation provided by the Husband‟s Employer

and hence enjoying interim maintenance from the date on

which she vacated the said property.

2. Two questions arise for our consideration. Firstly,

whether this Court possesses territorial jurisdiction to

entertain the suit; and secondly whether the impugned

Judgment calls for interference. So far as the first issue is

concerned, the parties married to each other in New Delhi.

They, however, last resided together in Gurgaon where the

Respondent/Wife avowedly maintains her residence. We have

already recorded that the Suit has been filed under sundry

provisions of HAM Act; there is no reference, whatsoever, to

the Hindu Marriage Act, 1955 („HM Act for short). In

response to the Objection to the exercise of territorial

jurisdiction by Courts in Delhi, Ms. Geeta Luthra, learned

Senior Counsel for the Respondent/Wife argues that since the

marriage was solemnized in Delhi, Courts located in Delhi

would possess territorial jurisdiction to decide all disputes

between spouses. Admittedly, a Suit for Partition has been

filed by the Respondent/Wife in Gurgaon, where it is being

presently adjudicated. Apart from the immovable properties

mentioned above, it appears that the Wife/Respondent has

ownership of a parcel of land in hi-tech city Ghaziabad. He,

however, does not own any property in Delhi and does not

reside in Delhi. According to the Appellant/Husband, he lost

his employment because the Wife had refused to deliver back

the possession of the company house, even after he was

transferred. It is not denied that he is presently working as a

Consultant in Pune where he is also residing. Our attention

has been drawn to Single Bench decisions where the

provisions of Section 20 of the Code of Civil Procedure, 1908

(„CPC‟ for short) have been pressed into service for

determining which Court is competent to exercise jurisdiction

in the context of territoriality. In Darika Bhatia -vs- V.L.

Bhatia, 119(2005) DLT 518 an unmarried daughter had made

the claim against her father which is also the position in

Alisha Chaudhary -vs- Tarun Chaudhary, 2009(110) DRJ 544.

Our learned Brother, Pradeep Nandrajog, J. has noted in

Darika that the marriage of the parents of the plaintiff is

wholly irrelevant to an inquiry for maintenance by the

daughter since the father was not residing in Delhi; the

daughter was residing in Gurgaon, having taken possession of

the flat situated there pursuant to a settlement between her

parents. The Plaint was directed to be returned to the

daughter for permitting her to file it in a Court of competent

jurisdiction. In Alisha, the Court again applied Section 20 of

HAM Act. It kept in view the fact that the Defendant, at the

time of commencement of the suit, actually and voluntarily

resided in Delhi and, therefore, the suit was held to be

entertainable by Courts in Delhi.

3. Section 19 of the HM Act stipulates that every petition

under that Act shall be presented to the District Judge within

the local limits of whose ordinary civil jurisdiction (i) the

marriage was solemnized or (ii) the respondent, at the time of

the presentation of the petition, resides, or (iii) the parties to

the marriage last resided together, or (iiia) in case the wife is

the petitioner, where she is residing on the date of

presentation of the petition, or (iv) where the petitioner is

residing at the time of the presentation of the petition in a

case where the respondent is, at that time, residing outside

the territories, or has not been heard of as being alive for a

period of seven years or more. The HM Act amends and

codifies the enactments relating to marriage amongst Hindus.

Section 24 thereof contemplates the grant of pendente lite

maintenance and Section 25 pertains to permanent alimony

and maintenance. It is manifest that an enquiry into whether

a spouse should be granted maintenance, pendente lite or

permanent, is clearly postulated by this Act. It is axiomatic

that the provisions of the HM Act come into operation only

once a petition for divorce or restitution of conjugal rights is

filed thereunder. One important factor is that a nominal fixed

fee is payable for seeking relief under the HM Act, whereas a

substantial ad valorem Court Fee must be affixed on a plaint

for maintenance under the HAM Act. The claim for

maintenance by a deserted wife would not lie under the HM

Act. This right is enshrined and is available under Section 18

of the HAM Act. Unlike the HM Act, the HAM Act is totally

silent on the question of jurisdiction. It seems to us that there

is no warrant to compel a spouse to petition for a divorce in

order to claim maintenance as a precondition to seeking

succor through the provisions of Section 19 of the HM Act. In

so doing, we do not ignore the general law, that is, the CPC.

4. Several Benches of different High Courts have opined

that the situs of the place of marriage is abidingly relevant to

determine which Court possesses territorial jurisdiction.

There can be no debate on the question that disputes

between spouses would inexorably be traced back to the

solemnization of their marriage, and therefore the place

where this event happens will always constitute one of the

seats of the cause of action. We approve of this very

reasoning articulated in P.K. Bakshi -vs- Shika Bakshi,

1998(2) HLR 43. This conclusion had been arrived at after

garnering support from K. Vajravelu -vs- Raj Lakshmi, AIR

1954 Madras 358, Chandrawati -vs- Lala Suraj Narain, AIR

1955 Allahabad 384, Subhash Chandra Jain -vs- Vidyut Jain,

AIR 1978 Allahabad 234 and Sushilabai Rohani -vs- Rohani

Prasad, 2(1982) DMC 13. This very question has been

considered by the Division Bench of the Calcutta High Court

in Arun Kumar Bedi -vs- Anjana Bedi, AIR 1984 Calcutta 49.

In that case, the Plaintiff/Wife was married at Delhi after

which he departed to the United Kingdom to reside with her

Husband. Due to a breakdown in the marriage (desertion by

her Husband), she was constrained to return to a separate

residence in Calcutta. The Suit for Maintenance, which was

filed in Calcutta, was held not to be maintainable in Calcutta.

The Division Bench considered Section 18(2) of HAM Act en

passant mainly to mention that the right for maintenance was

bestowed or enshrined by that Section. Section 20 of the CPC

was found to be relevant. It was opined that no part of cause

of action had arisen in Calcutta as the desertion had taken

place in England; that the residence of the Plaintiff/Wife

would not bestow jurisdiction to the Calcutta Courts where

the Respondent/Husband was not resident. The case is,

therefore, distinguishable from the factual matrix before us

as the marriage in our case had taken place in Delhi. In

M.Ramalinga Iyer -vs- T.K. Jayalakshmi, AIR 1941 Madras

695 the position was similar to that obtaining in Bedi and

hence was applied by the Division Bench.

5. Although it is not conclusively or exclusively

determinative of the question of which Court is competent to

exercise territorial jurisdiction, we cannot ignore the fact that

Respondent/Wife has filed a Partition Suit in Gurgaon, where

she resides. In our opinion, the decision to file the suit for

maintenance in this Court was taken under sanguinity that

the Courts in the Capital and/or Cosmopolitan Metropolis

would grant her a larger quantum of maintenance then the

courts elsewhere. Even if this tantamounts to forum

shopping, our opinion would remain steadfast. On the first

question, therefore, our conclusion is that Section 20 of the

CPC along with Section 19 of the HM Act would apply to any

claim under the HAM Act. A perusal of paragraph 52 of the

plaint makes it palpably clear that according to the

Wife/Respondent courts in Delhi have jurisdiction to entertain

the claim for maintenance because she got married to the

Husband/Appellant in New Delhi. Accordingly, Courts in

Delhi are competent to adjudicate the present disputes.

6. On the merits of the case, we think that it is apposite to

immediately draw a distinction between a division of

matrimonial assets and grant of maintenance, be it pendente

lite or permanent. Lord Denning was the first to recognize a

wife‟s rights to the matrimonial assets in Bendall -vs-

Mcwhitter, 1 All E.R. 1307. The House of Lords had a

different opinion. Consequently, the right of wife to claim a

share in the matrimonial assets was temporarily defeated.

However, the British Parliament intervened and provided that

a wife would be entitled to a share in the matrimonial assets.

Similar law has not been brought in by our Parliament which

is regrettable. If the Court is called upon to divide the

matrimonial assets, the entire income of the spouses as also

the aspect of either of the spouses being financially better

than other, would be called into question. However, where

the Court has to decide on the quantum of the maintenance

pendente lite, the predominant principle to be implemented is

that a spouse is entitled to live in accordance with the status

enjoyed before the disruption of the matrimonial bonds and

ties. A fortiori, while quantifying pendente lite maintenance,

it is unnecessary to quantify the family income with absolute

precision and exactitude. Considerable debate has been

generated before us in this regard, namely, that the income of

the Appellant/Husband was more than what has been

disclosed by him in the Court; conversely that currently after

deducting expenses, his disposable income has drastically

fallen to around Rupees thirty lac annually approximately.

What law requires is that this left behind spouse should be

granted maintenance so as to enable a continuance of the

lifestyle enjoyed by the couple while they were matrimonially

and emotionally united.

7. The wife undisputedly has comfortable residence

inasmuch as she has possession of the Flat addressed as Flat

No.702, Block No.A-3, Uniworld Citi, Gurgaon, and is also

enjoying the control/income of a smaller flat addressed as

102/46, Silver Oaks, DLF Phase-II Silveroak, DLF. In the

proceedings before us, the Appellant/Husband had offered all

these immovable properties together with all jointly owned

Mutual Funds and shares in return of a consolidated sum of

Rupees fifty lac from the Wife. The Wife, however, had

declined to accept anything below Rupees one crore, as well

as the larger flat where she is presently residing, the value of

which is more than Rupees one crore; whereas the smaller

flat has a market value of about Rupees fifty-sixty lac. We

cannot overlook the fact that no children have been born from

this wedlock. Should the Respondent/Wife decided to shift to

the smaller accommodation in 102/46, Silver Oaks, DLF

Phase-II, not only would the Husband/Appellant be liable to

pay for the expenses of repairs, renovation etc. but no further

deductions to the maintenance would be made. This will

enable the income to be generated from the letting of the

larger Flat.

8. Keeping all these factors in mind, we reiterate that in

determining the quantum of maintenance the claiming spouse

must be placed, as far as is possible, in a position similar to

what was enjoyed while the spouses were living together. The

learned Single Judge has directed that if the Respondent/Wife

opts to take some property on rent, the rentals would be

deducted from her maintenance. Further, the impugned

Order contemplates that the wife may choose between the

two flats jointly owned by the spouses, for her residence. It

seems to us what the learned Single Judge had in mind was

that if the wife exercises the option to reside in one of the two

flats, the Husband would be financially obligated to carry out

repairs, renovations etc. thereto. There may be a perceivable

incongruence in ordering that if the Respondent/Wife elects

to reside in rented premises, no extra amount could be

demanded from the Husband on this account. However, we

understand the learned Single Judge to have put a cap or

ceiling of Rupees one lac as maintenance regardless of the

monetary outgoing.

9. It is in this conspectus that we are of the opinion that

the maintenance of Rupees one lac per month should be

reduced by a sum representing what the Flat No.702, Block

No.A-3, Uniworld Citi, Gurgaon may reasonably fetch.

10. While we should not be understood to have quantified

the rental of Flat No.702, Block No.A-3, Uniworld Citi,

Gurgaon, where the Respondent/Wife is residing to be merely

Rupees Twenty Thousand, the maintenance awarded by the

learned Single Judge should be reduced by this amount. In

other words, we are satisfied that the pendente lite

maintenance of Rupees Eighty Thousand per month is

adequate and proper to cover the reasonable expenses of the

Respondent/Wife. It is ordered accordingly.

11. Appeal is disposed of in light of above stated directions.

Pending application stands disposed of.

                                            ( VIKRAMAJIT SEN )
                                                 JUDGE


                                            (SUNIL GAUR )
February 08, 2010                               JUDGE
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