Archana Singh vs Mahesh Kumar
2010 Latest Caselaw 2508 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   CM (M) 492/2009

                                    Date of Decision: May 11, 2010

      ARCHANA SINGH                               ..... Petitioner
               Through:          Mr. Peeyush Kalra, Adv.
                                 with Mr. Sudhindra Tripathi, Adv.
                    versus
      MAHESH KUMAR                         ..... Respondent
              Through:     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)

CM (M) 492/2009 and CM APPL No.7635/2009

1. Respondent husband filed a petition under Section 9 of the

Hindu Marriage Act (hereinafter referred to as 'Act') against

the Petitioner wife. In the said petition, Petitioner filed an

application under Section 24 of the Act. Before the

application could be decided, main petition under Section 9 of

the Act was withdrawn by the Respondent on 11.10.2007.

Thereafter, Court proceeded to hear the parties on the

application under Section 24 of the Act. Vide detailed order

dated 16.01.2009, Trial Court granted maintenance @

Rs.10,000/- per month to the Petitioner for the period from

1.10.2006 i.e. the date of filing of the application under

Section 24 of the Act till 31.12.2006, the date when she was

gainfully employed with M/s. Infogain India Pvt. Ltd.

besides litigation expenses of Rs.5,500/-.

2. Dissatisfied by the order of the Trial Court, Petitioner has

filed this petition challenging the legality and validity of the

impugned order dated 16.01.2009.

3. Mr. Peeyush Kalra, counsel for the Petitioner has submitted

that Respondent is drawing Rs.9,30,800/- annually but has not

filed his Income Tax Returns which should have been filed so

as to ascertain his true salary. He further argued that initially

Respondent husband was earning Rs.80,000/- whereas now

he claims that he is earning only Rs.5,000/- per month, which

is impossible to believe. He further submitted that resignation

of the Respondent was accepted by his employer with regret

indicating that, he voluntarily left his job, most probably for

better job, better salary and perks. He emphasized that under

the circumstances, Trial Court did not correctly award

maintenance to the Petitioner wife.

4. Respondent who appeared in person countered the

submissions of the counsel for the Petitioner stating that he

resigned from M/s. Infogain India Pvt. Ltd. w.e.f. 31.10.2006

and currently he was unemployed. He pointed out that

Petitioner is working since April, 2006 and is employed for

gain which is evident from her Bank statement placed on the

record. Respondent rather disputed the correctness of the

impugned order on the grounds that the maintenance was

awarded for the period 1.09.2006 till 30.11.2006 while

services were terminated on 31.10.2006 and she was

employed for gain and is earning about Rs.7,347/- which fact

was admitted by her in her application for review.

5. While granting interim maintenance u/s. 24 of the Act, the

Court has to consider:-

      (i)    Status of the parties.





       (ii)    Reasonable wants of the claimant.

(iii) The independent income and property of the claimant.

(iv) The number of persons, the non applicant has to maintain.

(v) The amount should aid the applicant to live in a similar life style as he/she enjoyed in the matrimonial home.

(vi) Non-applicant's liabilities, if any.

(vii) Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.

(viii) Payment capacity of the non applicant.

(ix) Some guess work is not ruled out while estimating the income of the non applicant when all the sources or correct sources are not disclosed.

(x) The non applicant to defray the cost of litigation.

(xi) The amount awarded Under Section 125 Cr.P.c. is adjustable against the amount awarded under Section 24 of the Act.

6. While granting maintenance, The Trial Court relied up 'Bhart

Hedge vs. Smt. Saroj Hegde', 140 (2007) DLT 16. Reference

is also made to 'Sanjiv Sangwan vs. Ms. Sangeeta Sangwan'

143(2007) DLT 306.

7. Thus, it is clear that the Court should not award maintenance

which is punitive in nature. Maintenance should be such

which aids the applicant live in a similar life style which she

or he enjoyed in the matrimonial home. It should not expose

non-applicant to unjust contempt or other coercive

proceedings. The quantum of maintenance fixed should be

reasonable. It should not be so low as to make the order

meaningless. While granting maintenance, the Court is

conscious of the fact that generally a party does not truthfully

reveals its income, especially the self-employed person, or,

person employed in the unorganized sector. Truthful income

is never disclosed, tax avoidance is another norm. Therefore,

while determining the interim maintenance there cannot be

any mathematical exactitude. The court has to take a general

view in the light of the factors as indicated above.

8. It is an admitted case of the Petitioner that she is employed

with Ritika Pvt. Ltd. and getting Rs.8,200/- per month w.e.f.

1.12.2006. At the time when she filed application for interim

maintenance, she was getting the said salary. In the year 2009

when the impugned order was passed she was getting about

Rs.10,000/- per month. Respondent was serving as Assistant

Consultant with M/s. Infogain India Pvt. Ltd. and getting

salary of Rs.9,30,800/- P.A.. He submitted that his

resignation was accepted on 21.11.2006.

9. Respondent was examined under Section 10 CPC on

10.07.2007 wherein he disclosed that he was getting salary of

Rs.5,000/- per month while serving as a Computer Operator

with Kushagra Infotech, Nangal Rai, New Delhi.

10. Trial Court took into consideration the undisputed facts of

employment of the Petitioner w.e.f. 1.12.2006. After

assessing the evidence of the parties and the documents

placed on record, the Trial Court believed that at the relevant

time when the application was filed, Respondent was earning

Rs.9,30,800/- annually and also that he had resigned from his

service and thereafter was employed on a salary of Rs.5,000/-

per month. May be that, Respondent tried to conceal his

actual income, the fact remains, Petitioner was employed for

gain and is presently getting more than Rs.10,000/- per

month.

11. The Trial Court awarded maintenance to the Petitioner wife

for the period from 1.10.2006 when the application was filed

till 31.12.2006 when Petitioner received her first salary,

though she was employed w.e..f. 1.12.2006. The quantum of

maintenance of Rs.10,000/- awarded by the Court, to my

mind is just and reasonable. Rather, if calculated properly

Petitioner should not have been awarded maintenance for

December, 2006. However, since Petitioner received her

salary only on 31.12.006, the Court must have considered the

expenses borne by the Petitioner for the said month while

awarding maintenance to her.

12. Under the facts and circumstances of this case, I find no

illegality or infirmity in the order of the Trial Court which

needs any interference by this court in exercise of its

supervisory power under Article 227 of the Constitution.

13. Hence, petition being without any merit is hereby dismissed.

ARUNA SURESH (JUDGE)

MAY 11, 2010 vk