Yashpal Khanna vs Ruby Khanna
2010 Latest Caselaw 2468 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   CM (M) 615/2010

                             Date of Decision: May 07, 2010

      YASH PAL KHANNA              ..... Petitioner
                   Through: Mr. Tarun Arora, Adv. with
                            Shakti Meena, Adv.
                   versus

      RUBY KHANNA                                   ..... 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)

CM (M) 615/2010 and CM APPL Nos.8507-08/2010

1. Petitioner has filed a petition under Section 13 (1) (ia) & (ib)

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

seeking divorce against his wife, the Respondent. In the said

petition, Respondent filed an application under Section 24 of

the Act seeking interim maintenance.

2. The Trial Court took into consideration the fact that Petitioner

is running jewellery shop at A-3/35, Moti Nagar, New Delhi

and also that Petitioner has exclusive right over the said

property and shop. Considering the nature of business of the

Petitioner and that he owns an immoveable property where he

is running his business, the Trial Court awarded maintenance

@ Rs.10,000/- per month. The Court also awarded

Rs.15,000/- as litigation expenses. It was made clear that any

amount payable in any other proceedings to the Respondent

by the Petitioner, would be adjustable against the amount

awarded vide the impugned order.

3. Mr. Tarun Arora, counsel for the Petitioner submitted that

Court while awarding maintenance @ Rs.10,000/- per month

to the wife did not give any conclusion regarding the income

of the Petitioner. The Court failed to consider that shop is in

the name of the mother of the Petitioner and Petitioner is only

working there. It is a family shop where all the brothers are

working and Petitioner is not the absolute owner. Court also

failed to consider that Petitioner is paying maintenance of

Rs.3,500/- under Protection of Women from Domestic

Violence Act. Respondent has already been provided

residential accommodation and electricity and water bills are

being paid by the Petitioner. He further submitted that the

Trial Court failed to consider that Respondent has rented out

the premises and is enjoying the rental income.

4. I do not find any force in the submissions made by the

counsel for the Petitioner. It is submitted that son of the

parties is mentally retarded. He is aged about 19 years. Till

date no maintenance is being paid for the child. Besides,

Petitioner has a daughter, Goldy who is about 21 years of age.

Respondent along with her children is residing in the

premises, which according to the Petitioner, have been

provided by him and he is paying water and electricity

charges. He is running a goldsmith shop and therefore is a

man of means.

5. Since actual income of the Petitioner was not disclosed by

him by submitting any documents, the Court in the absence of

any proper assistance, considering the income of a goldsmith

rightly awarded maintenance @ Rs.10,000/- per month.

While doing so, the Court also took into consideration the fact

that son of the Petitioner is mentally retarded and needs

medical attendance and other expenses, which would be borne

by the Petitioner.

6. As regards joint business, Respondent has placed on record a

copy of the complaint dated 4.11.2006 filed by the Petitioner

against his brother, Satpal Khanna claiming property A-3/35,

Moti Nagar, New Delhi to be solely his property as his

brother had already taken share from the said business and

that Petitioner has exclusive right over the property and the

shop which is being run by him. Observations of the Trial

Court regarding the complaint made by the Petitioner against

his brother belies the submission of the Petitioner that it is a

joint business and that shop is a family shop and is being run

in the name of his mother.

7. True, that the Trial Court did not specifically assess the

income of the Petitioner but the manner in which the order has

been passed, clearly indicate that the Court was at a loss to

determine the income of the Petitioner; a goldsmith, it fixed

the maintenance keeping in mind the income of a goldsmith in

general.

8. While awarding maintenance, the Court has to see that wife

can live in a reasonable comfort considering her status, mode

of life she was used to when she lived with her husband and

also that she does not feel handicapped in the prosecution of

her case.

9. Under these circumstances, the Trial Court rightly awarded

maintenance of Rs.10,000/- to the Respondent besides other

expenses. The Court also ensured that the payment which the

Respondent was receiving under the Protection of Women

from Domestic Violence Act was adjusted towards

maintenance payable vide impugned order.

10. I find no illegality or infirmity in the order of the Trial Court.

Hence, the petition is dismissed.

ARUNA SURESH, J.

MAY 07, 2010 vk