Delhi High Court
Gursharan Singh Bawa vs Arvinder Kaur on 13 September, 2010
Author: G. S. Sistani
45
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Delivered on: 13.09.2010
+ CM(M) 38/2005
GURSHARAN SINGH BAWA ..... Petitioner
Through : Mr.Sandeep Sharma and
Mr.Aatish Grover, Advs.
versus
ARVINDER KAUR ..... Respondent
Through : Mr.Pradeep Singh, Adv.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to 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 20.11.2004
passed on an application filed by wife under section 24 of the
Hindu Marriage Act, for maintenance and pendente lite and the
litigation expenses. It is stated by Mr.Sandeep Sharma, counsel
for the petitioner that petitioner has no source of income, as he
is jobless and thus the maintenance fixed at `3,000/- for the
wife and `2,000/- for the minor daughter, is far in excess. It is
further submitted that respondent is working and she does not
require any support from the petitioner. It is also submitted
that trial court has failed to consider the documents placed on
record by the petitioner herein, which would show that
petitioner is the only earning member of family and is getting
`3,000/- per month.
2. It is further submitted that respondent, who was divorcee at the
time of marriage, has played a fraud upon the petitioner, as she
did not disclose this fact to the petitioner. It is submitted that
the impugned order is against the law and facts and is based on
conjectures and surmises. It is also submitted that learned trial
court has given findings beyond the pleadings and only with a
view to pressurize the petitioner.
3. The present petition is opposed by counsel for the respondent
on the ground that respondent is a man of means. He is well-
educated and is staying in a 200 sq. yds. house in Noida along
with his family. It is further submitted that after the marriage
between the parties, respondent was residing with the
petitioner at the same house, besides respondent has to
maintain her minor school daughter and she has to pay her
school fee, transportation expenses, school uniform, books and
other day-to-day expenses.
4. I have heard counsel for the parties, the parties and the minor
daughter in the Chamber as well. The main thrust of the
argument of the counsel for the petitioner is that petitioner has
no source of livelihood and thus he is unable to pay any
maintenance to the wife and the minor daughter. It has also
been argued that the respondent has played a fraud upon the
petitioner as it was not disclosed that the respondent was
married and divorced. It has also been argued that the sole aim
of the respondent is to harass the petitioner and extract money
from him. In this case marriage between the parties were
solemnized on 18.5.1999 and a daughter was born on
30.7.2000. As per the application filed by the respondent under
Section 24 of the Hindu Marriage Act the petitioner is a
contractor and is earning `30000/-, per month, besides, rental
income. The respondent has denied the same. The trial court
has observed that the husband has neither disclosed the detail
of his earnings or the nature of his employment or the name of
his employer. The trial court has also observed in the order that
during the hearing the respondent had stated that he was
earlier a Government contractor but at present he is working as
a Supervisor and is only earning `3000/-, per month. The
position is no different before this court. I have met the parties
in the chamber. The respondent is an able bodied man and well
conversant with the English language. It is not possible that the
respondent has no source of livelihood as the respondent has
failed to disclose how he is managing himself. It is also
submitted by counsel for the petitioner that respondent has
played a fraud upon the petitioner. I find no force in the
submission, as the submission made is not relevant, while
deciding the application under section 25 of the Hindu Marriage
Act.
5. In the case of Jasbir Kaur Sehgal (Smt.) v. District Judge,
Dehradun & Others, reported at (1997) 7 Supreme Court
Cases 7, it has been held 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."
6. The petitioner has failed to satisfy this court as to how he is
maintaining himself. It is neither expected nor possible that the
petitioner is jobless. It is not the case of the petitioner that he
has not been able to get a job. Petitioner cannot be permitted
to shirk from his responsibilities of maintaining his wife and
minor daughter.
7. Having regard to the family background of the parties and also
taking into consideration that at the time when the petitioner
was married to the respondent, both resided at the matrimonial
home i.e. a 200 sq. yds house at Noida, the respondent wife is
looking after the minor school going daughter, maintenance @
`3000/-, per month for the wife and `2000/-, per month for the
minor daughter, cannot be said to be exorbitant or punitive.
Thus there is no merit in the petition and the same is
accordingly dismissed.
G.S. SISTANI, J.
September 13, 2010
'ssn'
