Sunil Malhotra vs Rashmi Malhotra
2010 Latest Caselaw 4842 Del

02.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                         Date of Judgment 20th October, 2010
+     CM(M) 928/2010
SUNIL MALHOTRA                                         ..... Petitioner
                     Through :   Mr. Alok Bhachawat and Mr. Uday Singh,
                                       Advs.

                     versus

RASHMI MALHOTRA                               ..... Respondent

Through : Respondent in person.

CORAM:

HON'BLE MR. JUSTICE G.S.SISTANI

1. Whether reporters of local papers may be allowed to see the Judgment ?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest?

G.S.SISTANI, J (ORAL):

1. Present petition is directed against the order dated 12.1.2010

passed by Additional District Judge, Delhi, on an application

filed by the respondent herein (wife) under Section 24 of the

Hindu Marriage Act whereby the trial court has directed the

petitioner (husband) to pay maintenance @ ` 12500/-, per

month, each, to the respondent (wife) and the minor school

going child.

2. No notice in this petition was issued, however, on 23.7.2010 a

direction was issued to the respondent (wife) to remain present

in Court or be represented through counsel. This order was

passed only with a view to explore the possibility of some kind

of a settlement. On the next date of hearing i.e. 19.8.2010,

counsel for the respondent had entered appearance and

pointed out that despite the order having been passed on

12.1.2010, no amount has been paid by the petitioner to the

respondent towards maintenance since January, 2009, i.e. the

date of filing of the application under Section 24 of the Hindu

Marriage Act. Learned counsel for the petitioner, on instructions

from the petitioner, who was present in the Court, agreed to

pay 50% of the arrears to the respondent within 30 days. The

petitioner also agreed that without prejudice to his rights and

contentions he will pay a sum of `15000/-, per month, to the

respondent towards maintenance from August, 2010, onwards.

Subsequently, the petitioner made a review petition seeking

review of the order dated 19.8.2010, which was dismissed by

this Court on 22.11.2010.

3. Learned counsel for the petitioner submits that the trial court

has exceeded its jurisdiction while passing the impugned order.

Counsel further submits that the learned trial court has failed to

take into consideration that respondent is also gainfully

employed and she is capable of maintaining herself. Counsel

next submits that the learned trial court has ignored the income

tax return of the past years and despite coming to a finding that

petitioner is earning only `28500/-, per month, the court has

come to the conclusion that petitioner would be earning not less

than `50000/-, per month. Counsel has further submitted that

since the respondent has concealed her income before the trial

court, on this ground alone the application for maintenance

should have been dismissed.

4. It is contended by counsel for the petitioner that initially the

petitioner was paying education expenses of the son, who was

studying in GD Goenka School, of which the fees is

approximately `1.00 lakh, per annum.

5. During the course of hearing, it is not disputed that school fees

of the son is not being paid by the petitioner however, at this

stage, counsel for the petitioner submits that petitioner is not

aware in which school his son is studying. Learned counsel for

the petitioner submits that petitioner has not met his son even

before the Mediation Centre.

6. I have heard counsel for the petitioner and also perused the

impugned order. The case set up by the respondent in the

application filed under Section 24 of the Hindu Marriage Act

before the trial court was that petitioner herein (husband) was

carrying on the business of manufacturing ladies suit in the

name and style of M/s Veenu Embroidery at 412, Kohat Enclave,

Pitam Pura, Delhi, and continued the same till the year 1995.

Thereafter the petitioner converted the same into a firm, known

as, M/s Kalakriti and continued to carry out his business from

the said premises. It is alleged that petitioner is also running a

factory at 288, Shivaji Marks above Laxmi Timber, Pitampura,

Delhi, and has employed more than 15 employees. Petitioner is

stated to be earning a sum of `5 to `6 lakhs, per month, from

the wholesale business and `1.00 lakh, per month, from the

retail business. Thus, according to the respondent (wife) the

income of the petitioner (husband) is not less than `2.5 lakhs,

per month. In support of her plea that petitioner is used to a

luxurious lifestyle, it was contended before the trial court by the

respondent that the petitioner owns immovable properties

outside Delhi and maintains two cars - Toyota Innova and

Maruti Swift. It was also contended before the trial court that

income tax returns, which have been placed on record, show

that petitioner's gross income is `340954.62p, per annum. Out

of this amount, petitioner is stated to be paying fees of the

minor son @ `1.00 lakhs, per annum, thus, reducing the income

of the petitioner to barely `1.40 lakhs, per annum. Petitioner

had also taken a plea before the trial court that he is running

the business from a rented premises and the rent of the

premises is `5000/-, per month. Petitioner had also disputed the

fact that he is residing at Kohat Enclave in view of the fact that

his parents had disowned him.

7. Learned trial court has taken into consideration the following

factors before passing the impugned order that:

(a) Admittedly petitioner is a sole proprietor of M/s

Kalakriti, which is engaged in manufacturing ladies

suits and allied items;

(b) The petitioner engages labour, which are not more

than 10 at a time; and

(c) The business of the firm is earning approximately

`5.00 to `6.00 lakhs, per month.

8. The trial court has also considered the income tax return, which

has been filed by the petitioner herein. The trial court has

rightly not relied upon the income tax return, as a person who

earns `340952.62p, per annum, and after payment of school

fees of `1.00 lakh of the son, he would not be in a position to

deposit 33% of the income into the LIC policies (`64087/-) and

PPF account (`70000/-). Trial court has also considered that

there is a debit card entry of `1.00 lakh and also that petitioner

has given his residential address of Kohat Enclave to the United

India Insurance Limited as also in the school of the child. Thus,

the trial court has not found force in the submission of the

petitioner that his parents have disowned him. I have perused

the order of the trial court and find no reason to differ. The

petitioner is a successful businessman and is carrying on the

business of trade and manufacturing of ladies suits. The

petitioner also owns Tata Innova and Maruti Swift. Besides, in

my view, the income tax return, sought to be relied upon by the

petitioner, does not reflect the correct and true earnings of the

petitioner. The law on this subject is well settled.

9. In the case of Jasbir Kaur Sehgal vs. District Judge,

Dehradun and Ors., reported at 1997 (7) SCC 7 the Apex

Court 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."

10. Having regard to the facts of this case and the settled position

of law, I find no infirmity in the order dated 12.1.2010 passed

by learned trial court. It may also be noticed that despite the

petitioner being aware that respondent is looking after her

minor son, who is 14 years of age, petitioner has not bothered

to pay any maintenance to the respondent from 29.1.2009 till

date except a sum of `15000/-. On 19.8.2010, the petitioner

had made a statement that he would pay 50% of the arrears

within 30 days, however, the same has not been paid by him

and, thus, violated the statement made to Court. The present

petition is without any merit.

11. Accordingly, the present petition stands dismissed.

G.S. SISTANI, J.

October 20, 2010 'msr'