Delhi High Court

Jyotsna Sofat vs Gaurav Sofat on 10 November, 2010

Author: G. S. Sistani

48.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     CM(M) 1473/2009

%                        Date of Judgment 10 November, 2010
JYOTSNA SOFAT                              ..... Petitioner
          Through :      Mr. L.B. Rai and Mr. Ankit Tuli, Advs. along with
                         petitioner.

                    versus
GAURAV SOFAT                                    ..... Respondent

Through : Mr. R.S. Goswami, Adv. along with respondent.

CORAM:

HON'BLE MR. JUSTICE G.S.SISTANI

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

G.S.SISTANI, J (ORAL)

1. Learned counsel for the parties submit that there is no possibility

of a settlement between the parties.

2. Present petition is directed against the Order dated 29.10.2009

passed by learned Additional District Judge - I (HMA), Delhi, on an

application filed by the petitioner (wife) under Section 24 of the

Hindu Marriage Act, in HMA No.1552/08/07, by virtue of which, the

respondent (husband) was directed to pay a sum of `2000/-, per

month, to the petitioner (wife) towards maintenance pendente lite

for both children, who are in the care and custody of the petitioner

(wife), from the date of filing of the application i.e. 31.7.2008. The

petitioner (wife) was also directed to contribute `2000/-, per

month, towards maintenance of both the minor children.

3. Learned counsel for the petitioner wife submits that maintenance

awarded by the trial court is highly insufficient taking into

consideration that petitioner is staying in a rented accommodation

and besides she has to incur various expenses on school uniform,

transport and other day-to-day expenses for herself and two

children. While learned counsel for the petitioner does not dispute

the fact that petitioner is working, counsel submits that her

earning and the paltry amount awarded by the trial court makes it

almost impossible for the petitioner to bring up her two school

going children.

4. While elaborating the submissions made, counsel for the

petitioner submits that the petitioner has to pay rent, school fee

for both the children, school bus fee, other payments for the

extra-curricular activities of the children and other day-to-day

expenses for running the house. It is further submitted that being

a single parent she has to ensure for the safety and security of the

children.

5. Learned counsel for the respondent has opposed this petition on

the ground that respondent is working as a Computer Operator

and his salary is only `3800/-, per month. Respondent, who is

present in Court, does not dispute the fact that his brother runs a

business of Call Centre. Respondent also submits that he is not

participating in the business of his brother, however, it is not

denied that he has good relations with his brother.

6. I have heard counsel for the parties and also perused the order

dated 29.10.2009 passed by learned trial court. In an application

filed before the learned trial court the petitioner wife had stated

that although she is working but her income is insufficient to

maintain herself as well as her two minor children. In the

application, respondent wife outlined various expenses incurred

by her including expenses of `3000/-, per month, for the maid

servant; rent @ `3000/-, per month, with respect to the premises

bearing no.109, Antriksha Apartment, H-3, Vikas Puri, Delhi, from

March, 2007, to July, 2007, and thereafter rent for the premises

bearing no.130, the same complex. The petitioner wife had also

stated in the application that her husband is carrying on the

business under the name and style of A.K. Earth Movers of which

he is the sole proprietor and is earning more than `50,000/-, per

month. It was also stated that the husband owns two houses and

he has no liability except to maintain his wife and children. In

response to this application, the husband had taken a stand that

the wife is earning `18300/-, per month, which is sufficient for her

to maintain herself. It was further stated by the husband that the

business of A.K. Earth Movers had been closed down and at

present he is working with M/s Vijay Bros. (Contractors and

Engineers) and is getting a salary of `3800, per month. The

husband also denied that he owns any immovable property.

7. Learned trial court while considering the application has relied on

the reply filed by the respondent wherein it is stated that

respondent herein is doing a job and is earning only `3800/- per

month.

8. The short question which arises for determination in this case is

whether, in addition to the earnings of the wife, a sum of `2000/-,

per month, awarded by the trial court is sufficient for the

petitioner to maintain herself and her two minor children.

9. Marriage between parties was solemnized on 2.12.2003. Out of

their wedlock two children were born on 30.9.2004 and 11.3.2006,

respectively. The petitioner has given details of her expenses

which include `3000/-, per month, for a maid servant to lookafter

the two minor children keeping in view that she is working.

Petitioner wife has also given details of the premises, which have

been taken by her on rent @ `3000/-, per month. Petitioner has

also given details with regard to expenses incurred towards

registration of the minor children in Mother‟s Pride Kindergarten,

their admission, tuition fee, uniforms and transportation.

Petitioner has also pointed out that recently both the children

have got admission in R.D. Rajpal Public School, Sector 9, Dwarka,

Delhi, where she has paid `38,000/- towards their admission fee

and now she has to pay `11,200/- towards quarterly school fee of

both the children and `6000/- towards school transport charges.

10. Admittedly, prior to March, 2006, petitioner and her two minor

children were living with the respondent in the matrimonial home

and the respondent was maintaining the petitioner and his two

children. Although, the petitioner (wife) had made a categorical

assertion in the application filed under Section 24 of the Hindu

Marriage Act that the respondent (husband) is a businessman and

doing business of „Earth Movers‟ under the name and style of A.K.

Earth Movers as its sole proprietor and is earning more than

`50,000/-, per month, however, the same has been denied by the

respondent. In reply to the application filed under Section 24 of

the Hindu Marriage Act, it has been stated by the respondent

(husband) that "the aforesaid business stand closed" and at

present he is only doing a job and his salary is `3800/-, per month.

Although, no reply to present petition has been filed by the

respondent, the petitioner (wife) has placed on record copies of

affidavits filed by her as well as her husband before the trial court.

In the additional affidavit dated 10.7.2009 filed by the petitioner

before the trial court the petitioner has deposed that on 23.3.2009

she visited the alleged address of the employer of the respondent

i.e. M/s Vijay Bros. (Contractor and Engineers) at 2361, Shaadi

Kham Pur, Patel Nagar, New Delhi, as furnished by the respondent

herein along with his affidavit dated 16.3.2009 and on reaching

the aforesaid address it was revealed that no firm by the name of

M/s Vijay Bros. (Contractor and Engineers) was functioning from

the said address, a shop dealing in plastic material was

functioning and on an enquiry the petitioner was informed that no

such person by the name of the respondent herein was working in

the said shop. In the Additional affidavit, the petitioner herein

further deposed that she went to find out the second address of

employer furnished by the respondent herein along with his

affidavit dated 16.3.2009 situated at WZ-276G, Inder Puri, New

Delhi, and on reaching the said locality, she learnt that the

aforesaid address was incomplete. She called up the Telephone

number 25832676 furnished by the respondent herein along with

his affidavit dated 16.3.2009 and a person, who picked up the

phone, confirmed that there was nobody by the name of the

respondent at the address. The petitioner has also deposed that

she took the exact location of the place where the said phone was

installed and on reaching there she found that the said place was

a residential property and the person, who was running the

business from the said place was not available and when the

owner was contacted on his mobile phone and the particulars of

the respondent herein were mentioned he disconnected the

phone.

11. The respondent (husband) has made no efforts in the proceedings

before the trial court or during the pendency of this petition to

rebut the allegations made by the petitioner, which gives an

impression that the respondent is intentionally concealing his true

and correct income with a view to avoid making the payment of

maintenance. Even otherwise, it cannot be believed that a person,

who was carrying on the business of „Earth Movers‟ as a sole

proprietor would close down the business and seek employment

for `3800/-, per month, which is less than the minimum wages,

especially when his own brother is a businessman.

12. In response to this petition, neither any reply has been filed by the

respondent nor any document has been placed on record to show

that respondent, who is an able bodied person and who belongs to

a family, where the brother is carrying out his own business, is

earning only `3800/-, per month. Thus, the respondent is only

trying to mislead the Court and is avoiding to disclose his true and

correct income. Respondent is stated to be residing at Vikas Puri,

in a house, which belongs to her mother.

13. The Supreme court in the case of Jasbir Kaur Sehgal vs.

District Judge, Dehradun and Ors., reported at 1997 (7) SCC 7

has observed that "where diverse claims are made by the parties

some conjectures and guess work by court are permissible". Para

8 of the judgment reads as under:

"8. The wife has no fixed abode of residence. She says she is living in a Gurudwara with her eldest daughter for safety. On the other hand the husband has sufficient income and a house to himself. The Wife has not claimed any litigation expenses in this appeal. She is aggrieved only because of the paltry amount of maintenance fixed by the courts. No set formula can be laid for fixing the amount of maintenance. It has, in the very nature of things, to depend on the facts and circumstance of each case. Some scope for liverage can, however, be always there. 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 of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the 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. At the same time, the amount so fixed cannot be excessive or extortionate. In the circumstances of the present case we fix maintenance pendente lite at the rate of Rs.5,000/- per month payable by respondent-husband to the appellant-wife."

14. It has been repeatedly held by courts that while considering an

application under Section 24 of the Hindu Marriage Act the Court

must consider the means and capacity of a person against whom

an order of payment of maintenance is made. While determining

the quantum of maintenance, not only the actual income but also

the potential capacity must be considered. Court must also take

into account the position and status of the parties. The petitioner

herein is an able bodied person and has a capacity to

earn and maintain his wife. It is necessary that the

wife and the minor children are provided a similar

standard of living as was being enjoyed by them in the

matrimonial home. The petitioner and her minor children must be