Anjan Chowdhury vs Sharabani Chakraborty
2010 Latest Caselaw 4846 Del

30.

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Date of Judgment 20th October, 2010

+      CM(M) 354/2009

ANJAN CHOWDHURY                                         ..... Petitioner
             Through :          Petitioner in person.

                     versus

SHARABANI CHAKRABORTY                                  ..... Respondent

Through : Mr. Jagmohan Sharma and Ms. Rajni Yadav, Advs. along with the respondent.

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 12.2.2009

passed by learned Additional District Judge on an application filed

by the respondent (wife) under Section 24 of the Hindu Marriage

Act in HMA No.262/2007 whereby the petitioner was directed to

pay maintenance to the respondent @ `5000/-, per month, from

the date of filing of the application.

2. Brief facts of the case, as set out in the present petition, are that

marriage between the petitioner and respondent was solemnized

on 11.7.2003. Parties are stated to have separated from each

other in the month of August, 2005. Respondent (wife) is stated to

have filed a petition for grant of divorce under Section 13(1)(ia) of

the Hindu Marriage Act in the Month of April, 2007. Thereafter an

application was filed by the respondent (wife) in the month of

September, 2007, under Section 24 of the Hindu Marriage Act for

maintenance. By an order dated 12.2.2009 (hereinafter referred

to as "impugned order") learned trial court has allowed the

application of the respondent and directed the petitioner to pay a

sum of `5000/-, per month, to the respondent towards

maintenance from the date of filing of the application.

3. This court while issuing notice on 27.4.2009 had observed as

under:

".... After some arguments, learned counsel for the petitioner states that petitioner is interested in reconciliation with respondent-wife.

Issue notice to respondent, returnable for 18th May, 2009. Keeping in view the petitioner's desire to resolve the matrimonial dispute, I direct petitioner and respondent to be personally present before this court on the next date of hearing.

Learned counsel for petitioner further states that even though respondent-wife had a much higher income during the years 2005-2006 and 2006-20007, petitioner will pay the maintenance amount as directed by trial court provided that petitioner is given the option to clear outstanding dues in regular monthly installments......"

4. The parties appeared before this Court on the next date of

hearing, however, the matter could not be resolved.

Subsequently, petitioner filed an application being CM

No.10134/2009 seeking clarification and modification of the order

dated 27.4.2009, which application was dismissed with costs on

27.7.2009. When the matter was listed on 9.10.2009, the same

was referred to Delhi High Court Mediation and Conciliation

Centre, however, talks of compromise did not materialize.

5. The petitioner, who appears in person, submits that the learned

trial court has failed to take into consideration that the income of

the respondent is more than his income. According to the

petitioner, during the assessment years 2005-2006, the net

income of the respondent was `181045/- while his net income was

`117679/-. Similarly for the assessment years 2006-2007

respondent's net income was `121745/- and his net income was

`137179/-. Petitioner further submits that respondent has been

making donations from time to time. A sum of `21000/- was

donated in April, 2004, and `30000/- in August, 2009. The

respondent has also been paying LIC premium in the sum of

`26100/-. Respondent has also been giving loans and advances to

the persons. Besides this, respondent has purchased a car in the

year 2009 and also purchased jewellery, and has an office at

Safdarjung Development Enclave, all of which would show that the

respondent has sufficient independent income to maintain herself.

6. Learned counsel for the respondent submits that the allegations

made by the petitioner are baseless and wild. Counsel further

submits that at the time when the application filed by the

respondent under Section 24 of the Hindu Marriage Act was heard

not even a single document was placed on record by the

petitioner in support of his allegations. Counsel also submits that

petitioner is working as an Assistant Engineer with CPWD and has

now been posted with the PWD. Counsel next submits that

present salary of the petitioner is more than `35000/-, per month.

7. It is contended by counsel for the petitioner that it has not been

denied by the petitioner that he owns two properties - one at A-

281, Palam Vihar, admeasuring 55 sq. yds.), Gurgaon (Ansal

property), and another at Khasra No.11/8, Village Haibatpur, New

Delhi, which have been purchased by him out of his income.

Petitioner submits that the property situated at Gurgaon was

inherited by him and he has not purchased the same.

8. The petitioner submits that it is unbelievable that a person, who is

earning barely `62542/- would pay an insurance premium of

`26000/-, annually. Petitioner further submits that it is common

knowledge that self-employed people do not disclose the correct

and true income and, thus, the income tax return of the petitioner

is unreliable.

9. Learned counsel for the respondent submits that the income tax

returns, sought to be relied upon by the petitioner, do not reflect

the correct and true picture in view of the fact that after the

parties had separated, the respondent is unable to carry out her

professional activities on account of her mental condition, for

which the petitioner has been responsible. Counsel further

submits that income tax returns, sought to be relied upon by the

petitioner, are seven months prior to the period when the

application for maintenance was made before the trial court and,

thus, rightly not considered by the trial court, whereas during the

relevant period the income tax return of the respondent would

show that the net income of the respondent was only `62542/-,

which is much below the income of the petitioner.

10. Learned counsel for the respondent has clarified that the donation

of `21000/- was made in the year 2004 soon after her marriage,

which is evident from page 75 of the paper book, and similar

donation in the sum of `31000/- was also made by the

respondent for religious purposes to Guruma. Counsel further

submits that the respondent had got herself insured even prior to

her marriage but she has to pay the insurance premium in spite of

her financial hardship, else the policy would lapse, which would

put the respondent to a further loss and leave her without any

security.

11. Learned counsel for the respondent has also pointed out that the

sole aim and purpose of the petitioner is to harass and malign the

respondent. Counsel further submits that petitioner has no

intention to settle the disputes and he has been shifting his stand,

at the time of grant of bail, the petitioner had agreed to pay a sum

of `4.00 lakhs in full and final settlement, however, the petitioner

did not stand by his words and moved an application for reducing

the amount. The petitioner submits that he had moved an

application for reducing the amount from `4.00 lakhs to `3.00

lakhs but the respondent failed to agree.

12. I have heard the petitioner, who appears in person, and counsel

for the respondent as also perused the documents filed along with

the petition. Learned trial court has considered the rival

contention of both the parties. The trial court has taken into

consideration that during the relevant period the income of the

respondent was barely `62000/-, per annum. Both parties have

made allegations against each other. While the petitioner submits

that respondent is earning substantially on account of her legal

practice, the respondent has denied the same owing to her being

in a disturbed state of mind. The respondent has alleged that

petitioner is earning more than `35000/-, per month, today in view

of the increase in salary. It has further been submitted that in

case the salary was the only income of the petitioner he would not

have been able to acquire two properties - one in Gurgaon and

another at Khasra No.11/8, Village Haibatpur, New Delhi, which

would show that the petitioner has concealed his true income,

which may be by illegal means. During the course of hearing an

offer was made to the petitioner that whether he is willing to enter

into a settlement. The respondent agreed to accept `3 lacs. The

petitioner declined the offer on the plea that he does not have the

means to pay `3 lacs. Respondent even agreed to forego the

alimony in case the petitioner agrees for a settlement. At this

stage, petitioner again declined and wanted the respondent to

refund certain amounts paid by him. I am constrained to note

that the stand of the petitioner seems to be extremely

unreasonable.

13. Having regard to the fact that trial court has considered the rival

contentions of both the parties and also taking into consideration

that petitioner, who is working in CPWD as an Assistant Engineer

with the salary, as has been shown by him, I am of the view that

petitioner would not have been in a position to acquire the

property at Khasra No.11/8, Village Haibatpur, New Delhi,

measuring 100 sq. yards. I find no force in the submission of the

petitioner that since the respondent has made a donation or that

she is paying insurance premium of `26000/-, per annum, she has

sufficient means to support herself. It is not unusual in our society

to spend to religious purposes even in case of financial crisis.

Respondent has made a donation for religious reasons to Guruma.

As far as the insurance premium is concerned respondent has

explained that the insurance policy was taken prior to her

marriage. In case the respondent is getting support from her close

relations, does not mean that the liability of the husband is

ceased. I find no infirmity in the order dated 12.2.2009 passed by

learned trial court by which respondent has been awarded

maintenance @ `5000/-, per month. Present petition is without

any merit, the same is accordingly dismissed.

G.S. SISTANI, J.

October 20, 2010 'msr'