Sangeeta Mehta vs Ranjeesh Mehta
2010 Latest Caselaw 2379 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+             CM(M) 474/2010 & CM Nos.6374-75/2010

                                Date of Decision: May 04, 2010

       SANGEETA MEHTA                          ..... Petitioner
                       Through: Mr.M.L.Kasturi, Advocate.
                versus

       RAJNEESH MEHTA                                ..... Respondent
                    Through:             None.

       %
       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 married on 5 th October,

2005 according to Hindu Rites and Ceremonies. A male child was

born out of the wedlock of the parties on 16 th June, 2007. Due to

quarrels and fights, parties could not live together and separated.

Respondent filed a petition for divorce against the petitioner. In the

said petition, an application under Section 24 of the Hindu Marriage

Act (hereinafter referred to as „HM Act‟) was filed by the

respondent, wherein Trial Court awarded maintenance only for the

child at the rate of Rs.1,500/- per month.

2. Mr.M.L.Kasturi, counsel for the petitioner has

contended that petitioner is financially dependent upon her mother,

sister and maternal uncle and she is not in a position to maintain

herself and her minor child. It is argued that petitioner is a

temporary teacher in a private school and for her absence from duty

she is not provided with any salary. He submitted that school does

not issue any salary slip which could be produced in the court to

show the actual salary of the petitioner. According to him, Trial

Court went wrong when it rejected the claim of the petitioner for

maintenance on the ground that she was employed for gain. It is also

submitted that Trial Court failed to consider the fact that respondent

is a man of means as he is co-owner of three properties and is

earning more than Rs.20,00,000/- (Twenty Lakhs) per month.

3. Contentions of the petitioner are unsustainable as she

has failed to produce on record any document to substantiate her

claim. Trial Court had rejected claim of the petitioner for her

maintenance, observing that she had not placed any document on

record to substantiate her claim. She has failed to file her salary slip

to indicate that she is temporarily employed as a Teacher and is

earning a meagre amount of Rs.6,000/- per month.

4. Every endeavour was made to find out actual income

of the petitioner and if she was an income-tax assessee. Petitioner is

a well qualified woman and must be getting a handsome salary as a

teacher as per the guidelines issued by the Education Department.

Deposit slips placed on record did not indicate that petitioner is being

provided maintenance by her mother, sister or uncle. Deposit slips

indicate that more than a sum of Rs.2,000/- was being deposited

every month in the account of the petitioner . In July, 2008

Rs.4,000/- were deposited, in August, 2008 Rs. 1,500/- were

deposited whereas in September 2008, a sum of Rs.4,000/- was

deposited in the account of the petitioner. Generally, every month

Rs.4,000/- have been deposited in her account. Source of income of

mother of the petitioner is not known. Why uncle of the petitioner

should support him goes unexplained specially when according to

the petitioner, her mother and sister are financially supporting her. It

is possible that the amount deposited in her account from time to

time by her mother, sister or may be uncle, is part of her own salary

and not as financial aid given to her by her family members.

5. While dismissing claim of the petitioner for her

maintenance, Trial Court observed:-

" Admittedly, the respondent is working as a teacher in Aster Public School, Delta-II, Greater Noida, U.P. She has, neither in her application nor in her rejoinder stated the salary which she gets from the school. She has also not filed any document in this regard from the school authorities. Her contention that the said job is a temporary job is also not supported by any document. The respondent has, therefore, deliberately concealed her nature of job and income from this Court.

XXX XXX XXX

It is also expected of the applicant spouse to approach the Court with clean hands and disclose her earnings specifically in her application. The respondent in the present case has not done so deliberately.

In view of the same, I am of the opinion that the respondent is disentitled to claim any alimony form the petitioner. Now, the question remains as to whether or not she is entitled for alimony for the minor children who stays with her. It is the joint responsibility of both the parents to look after and maintain the child. The petitioner, therefore, is liable to provide maintenance for the upbringing and education related expenses of the minor child. I, therefore, feel that the petitioner should pay a sum of Rs. 1500/- per month to the respondent towards the maintenance and education related expenses of the minor child."

6. As regards immovable properties allegedly owned by

the respondent at Greater Noida, Greater Kailash and Defence

Colony, Trial Court has not given any observations. However,

apparently petitioner could not substantiate her plea that respondent

has rental income from the said properties and in all he is earning

about Rs.2,00,000/-. The fact that respondent owns immovable

properties, would not make him bear the liability to pay maintenance

under Section 24 of the Act. A husband is required to maintain his

wife from his income. „Income‟ means some financial benefit

accruing to the husband, may be in cash or kind from the movable

assets but, in no manner, it includes immovable property. Rental

income, if any, of the respondent could be considered as his income

added to his other income from his other sources.

7. As pointed out above, petitioner has not been able to

substantiate her averment that respondent is owner of three separate

properties and is having income of about Rs.2,00,000/-.

8. In 'Shakti Pershad Vs. Ratna Pershad', 2003 I AD

(Delhi) 697, it was observed:-

"9. Section 24 of the Hindu Marriage Act provides establishment of two essential conditions to enable the court to pass an order of pendentilite maintenance and award the expenses of the proceeding in favor of the husband or wife. These are that the husband or wife does not have independent income to support him/her and that the interim maintenance and the expenses of the proceedings are to be fixed having regard to the

income of both the spouses. In the divorce petition the respondent wife has indeed alleged that the petitioner husband is not running any business. His factory has closed down. The bank from which loan was taken for the factory had started proceeding for its recovery before the Debt Recovery Tribunal. The money has not been paid. It is further alleged by her that the petitioner had stopped giving her money for meeting the household expenses since 1994. The petitioner, however, in his reply has submitted that he did not have income since 1998. Certain more facts are worth noticing. The petitioner husband belonged to a very rich family of Delhi. He owns ancestral property in Old Delhi and also owned a big house in Friends Colony East. Anyhow owning property itself will not make the petitioner saddle him with the liability to pay the maintenance under Section 24. The petitioner would be liable to pay if he has income. The word "income" used in this Section 24 of the Act is of widest amplitude. The income may be in cash or kind but it has to be an accrual from the movable or immovable assets. It will definitely not include the immovable or movable property itself. For instance the wages, salary, interest or dividend, agricultural produce of a land, the fruits from fruit bearing tree or orchard, the rent from the house etc will be income. Section 24 uses the word "income" juxtaposed the words 'income and property' used in Section 25 of the Act. The income and the property or capital assets, as such, are not one and the same thing. A spouse may own huge immovable properties of immense value but if there is no yield or accrual

of interest or rent they would not be reckoned for calculating the amount of maintenance. But if the spouse has money in its hand may be by the sale proceeds of any immovable or movable property which he or she is using for meeting the personal expenses or the expenses of the household then that could certainly be taken into account. Shares or bonds may not be included in the term income but what was yielded in the shape of dividend or interest would become income............"

9. Under these circumstances, when petitioner is

employed for gain and in the absence of any authentic evidence to

indicate the actual income of the respondent, Trial Court,

considering the joint liability of the parents to look after the child,

reasonably fixed maintenance for her at the rate of Rs.1,500/- per

month.

10. I find no reason to interfere in the impugned order of

the Trial Court. Hence, petition is dismissed accordingly.

CM Nos. 6374/2010 (for stay) & 6375/2010 (for exemption)

11. With disposal of the petition itself, both these

applications have become infructuous and the same are accordingly

dismissed.

ARUNA SURESH (JUDGE) MAY 04, 2010/sb