Smt. Sushila Devi vs Shri Joginder Kumar
2010 Latest Caselaw 3077 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI


+             CM(M) No.1045/2008 & CM No.13003/2008

                                     Date of Decision : July 02, 2010

       SMT. SUSHILA DEVI                                ..... Petitioner
                      Through:            Mr.K.Sunil, Advocate
                                          with Petitioner in person.
                     versus

       SHRI JOGINDER KUMAR                           ..... Respondent
                      Through:            Mr.Saurabh Tiwari,
                                          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.

1. Impugned in this petition is the order of the Trial

Court dated 8th August 2008, whereby while allowing application of

the petitioner (respondent in the main petition) filed under Section 24

of the Hindu Marriage Act (hereinafter referred to as 'the Act'), it

awarded her maintenance @ Rs.3,000/-per month, besides litigation

expenses of Rs.5,100/-. Being dissatisfied by the said order, she has

filed this petition.

2. Mr.K. Sunil, counsel appearing on behalf of the

petitioner has submitted that the court awarded meagre amount of

maintenance without considering income of the respondent

(petitioner in the main petition) in the correct perspective as he is a

man of means and therefore, she should have been awarded

maintenance as claimed by her i.e. at least Rs.8,000/- to Rs.10,000/-

per month. He further submitted that respondent-husband owns

agricultural land measuring 12 Bighas and 17 Biswas in village

Nizampur, Delhi and the total annual income of the parents of the

petitioner is about Rs.8,60,000/-. Besides, he owns two residential

houses in the name of his father in old Lal Dora Mundaka, in which

there is a godown and a factory and he has income from the said

business.

3. Mr.Saurabh Tiwari, counsel appearing on behalf of the

respondent has submitted that the entire properties, as detailed by the

petitioner, are owned by parents of the respondent and there is no

property in his name. He has no right in the properties of his parents

and is presently unemployed and has no earnings. He further

submitted that petitioner is earning Rs.10,000/- per month from

tailoring and embroidery work and she is living in her matrimonial

home. Despite differences, she is being provided with all comforts

and her necessary expenses including her medical needs which are

being taken care of by the respondent.

4. It is an admitted fact that petitioner is residing in her

matrimonial home. Therefore, she is being provided with a

residential accommodation and she is not to bear any expenses for

her residence. Petitioner has denied that she has any independent

income from tailoring and embroidery work. Court, therefore,

rightly did not believe the submissions of the respondent that

petitioner was earning about Rs.10,000/- per month. Petitioner has

not disclosed any source of income of the respondent. She has only

referred to the immovable properties including the agricultural land,

which, admittedly, are in the name of the parents of the respondent.

Nothing was placed on record to show that respondent owned any

property in his name independent of the immovable assets of his

parents. Being a son, may be that he is living with his parents, the

fact remains that he can be made liable to pay maintenance only

from his earnings and not from the properties, unless these properties

give him some rental income. In this case, neither respondent owned

any property nor has any rental income.

5. Disbelieving the respondent that he was unemployed,

Court awarded maintenance of Rs.3,000/- per month to the petitioner

keeping in view the financial status of both the parties. In 'Smt.

Jasbir Kaur Sehgal Vs. District Judge, Dehradun and Ors.,

MANU/SC/0835/1997, it was observed that no set formula can be

laid for fixing the amount of maintenance. It has, in very nature of

things, to depend on the facts and circumstances of each case. While

fixing the maintenance, Court has to consider the status of the

parties, their respective needs, capacity of the husband to pay having

regard to his reasonable expenses for his own maintenance and those

he is obliged under the law and statutory but not voluntary payments

or deductions. While awarding maintenance, Court also has to

consider that amount fixed for the wife is such that she can have

reasonable comfort in her life considering her status and living style

which she maintained while living with her husband.

6. In this case, since Trial Court was not provided with any

specific information regarding source of income of the respondent.

It had to adopt a probable formula to award maintenance to the wife.

Status of the parents of the husband, in no manner, can be considered

by the Court while awarding maintenance to his wife. It is the duty

of the husband to maintain the wife and not of his parents.

7. In view of my discussion as above, I find no reason to

interfere in the impugned order of the Trial Court dated 8th August,

2008. Hence, petition is accordingly dismissed.

CM No.13003/2008 (for stay)

8. With dismissal of the petition itself, this application

has become infructuous. It is accordingly dismissed.

ARUNA SURESH (JUDGE)

JULY 02, 2010 sb