Smt. Shukla Chakraborty vs Shri Sudeep Mitra
2010 Latest Caselaw 4254 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       CS(OS) NO. 316/2009

                                     Date of Decision : 14.09.2010

Smt. Shukla Chakraborty                         ......      Plaintiff

                              Through:   Mr. S. K. Bhaduri, Advocate

                                Versus

Shri Sudeep Mitra
                                         ....... Defendant

                              Through:   Mr. Satish Kumar, Advocate

CORAM :

HON'BLE MR. JUSTICE V.K. SHALI

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


V.K. SHALI, J.

IA No. 2215/2009

1. This order shall dispose of an application bearing no.

2215/2009 filed under Section 151 CPC for grant of ad

interim maintenance.

2. Briefly stated the facts of the case are that the plaintiff got

married to the defendant on 06.02.2007 according to Hindu

Rites and Ceremonies at Delhi. It is alleged that there is no

issue from the wedlock between the parties. After the

marriage the plaintiff was taken to her matrimonial home at

flat no. 411, Heritage Tower, Plot no. 1, Sector-3, Dwarka,

New Delhi-110075 which is a three bedroom flat. It is alleged

that the behavior of the husband and mother-in-law against

the plaintiff was not good and she was subjected to cruelty

with a view to demand dowry, as a consequence of which the

relation between the plaintiff and the defendant husband

became strained. It resulted in lodging of a complaint by the

plaintiff with the Crime against Women Cell and an FIR was

registered. It is alleged that the plaintiff was thrown from the

matrimonial home and she started living with her parents.

3. The plaintiff has filed the present suit under Section 18 of the

Hindu Adoption and Maintenance Act claiming the

maintenance @ `20,000/- per month from the defendant and

also prayed for a suitable residential accommodation to be

provided to the plaintiff by the defendant. The plaintiff is

claiming to be employed in a private firm and is getting a

meager salary of `13,000/- which is not sufficient to maintain

herself. As against this, the defendant is stated to be earning

more than `60,000/- per month from various sources

including the salary, rental income etc.

4. The defendant filed his written statement and contested the

claim of the plaintiff. It was stated by the defendant that the

plaintiff had deserted matrimonial home without any valid

cause or justification and thus the plaintiff is not entitled to

any maintenance much less @ ` 20,000/- per month. It is

alleged that the plaintiff is employed in a private firm and

earning more than ` 25,000/- per month which is more than

the salary of the defendant. The defendant has stated that he

is working in a private concern where he is earning

`20,000/- per month. So far as the other sources of income

of the defendant are concerned, it is stated that the flat no.

411, Heritage Tower, Plot no. 1, Sector-3, Dwarka, New Delhi-

110075 belongs to the defendant's mother. It is denied that

the defendant owns a car. It is stated that the car belongs to

his brother-in-law who is presently posted out of Delhi. The

defendant has admitted that he owns a motor cycle. It is

stated that the same was obtained on monthly installments.

The entire loan amount has been paid in September, 2008.

The defendant has also denied that he is getting any regular

income from the interest or from any property in Howrah

(West Bengal). It is also stated that even a sum of Rs.

20,000/- which the defendant was getting as a salary from a

concern in Gurgaon has been stopped because the defendant

has resigned from the said concern and is looking for a new

job. On the basis of these averments the defendant has

contested the claim of the plaintiff for grant of ad interim

maintenance.

5. I have heard the learned counsel for the parties.

6. The learned counsel for the plaintiff has contended that there

is no dispute that the plaintiff is employed in a private

concern and is earning only ` 13,000/- per month as against

an income of ` 60,000/- per month approximately from

different sources being earned by the defendant. The learned

counsel for the plaintiff has contended that the defendant is

earning an amount of ` 40,000/- to 50,000/- from his

employer by way of salary and the balance amount he is

getting by way of rental incomes and interest etc. So far as

the assets of the defendant are concerned, it was contended

by the learned counsel for the plaintiff that the defendant

owns a flat in Dwarka and a property in Howrah (West

Bengal) which was let out and is bringing him regular income.

It was also stated that apart from this, the defendant owns a

car, motor cycle, a number of Fixed Deposits, credit cards etc.

On the basis of all these facts it was contended that the

defendant had substantial source of income and means which

he was not willing to use for the purpose of maintenance of

the plaintiff. It was contended that since the plaintiff has

filed the present suit under Section 18 of the Hindu Adoption

and Maintenance Act and the plaintiff did not have sufficient

means to maintain herself, therefore, the defendant ought to

be directed to pay a sum of ` 20,000/- by way of ad interim

orders as maintenance to the plaintiff from the date she was

turned out from the matrimonial home. The learned counsel

for the plaintiff has relied upon on a number of judgments in

this regard. They are 2008 III AD Delhi 1, II (1999)DMC

453, I 2008 DMC 166, AIR 1994 234, 2002 (61) DRL 485.

7. The learned counsel for the defendant has refuted the

contention of the plaintiff and took a plea that the present

application for grant of ad interim maintenance under Section

151 CPC was not maintainable. It was alleged that the

plaintiff on her own saying is employed in a private concern

where she was admittedly earning ` 13,000/- per month.

According to the defendant's averments, the plaintiff was

actually earning ` 25,000/- per month and she has

deliberately not placed on record the documents with regard

to her salary. As against this, it was contended by the

learned counsel for the defendant that he was earning only `

20,000/- from his employer and a salary certificate was also

filed by him. The learned counsel for the defendant has also

contended that after filing of the suit and the application, the

defendant has resigned from the said company in order to

find better prospects. A copy of the acceptance of the

resignation letter has been placed on record. The defendant

has admitted that he is owner of a motor cycle which was

purchased by him on installments. It was also stated by him

that the car which is alleged to be owned by the defendant

actually belongs to his brother-in-law. The photocopy of the

registration certificate of the car has been placed in record in

support of the contention. The defendant has also denied

that he has any property in Howrah (West Bengal) from which

he is getting any rental income. It has been urged that the

plaintiff has deliberately not placed on record her salary

certificate, and therefore, an adverse inference ought to be

drawn against her. It is urged that the plaintiff's salary is

not ` 13,000/- but ` 25,000/- per month and that is the

reason why salary certificate has not been placed on record.

8. Keeping in view all these facts, it has been contended by the

learned counsel for the defendant that the plaintiff has

sufficient means to maintain herself and there is no reason to

pass an ad interim order granting her maintenance, as she is

unable to sustain herself.

9. I have heard the learned counsel for parties and perused the

authorities.

10. So far as the judgments which have been relied upon by the

learned counsel for the plaintiff are concerned, they are not of

much help to the plaintiff because the question to be decided

in the instant case is as to whether the plaintiff has sufficient

means to maintain herself or not and as to whether the

defendant should be directed to pay a sum of ` 20,000/- to

the plaintiff by way of ad interim maintenance during the

pendency of the suit while as the factual matrix of all the

cases relied upon are totally distinguishable.

11. The first judgment which has been relied upon by the plaintiff

is Sudhir Diwan (Sh.) Vs. Smt. Tripta Diwan & Anr. 2008

III AD (DELHI) 1. It was a case where the learned Single

Judge of this Court has observed that while passing an order

for grant of maintenance under Section 24 of the Hindu

Marriage Act a presumptive finding of income could not be

passed by the Matrimonial Judge. In the instant case, there

is no such presumptive income being assumed in favour of

the defendant or the plaintiff. The plaintiff claims to be

earning ` 13,000/- per month without producing the

certificate of the salary. As against this, the husband has

alleged that the plaintiff is earning ` 25,000/- per month

while as he himself is earning ` 20,000/-. He has produced

his salary certificate. Further, a letter indicating the

acceptance of resignation of the defendant is also produced

which obviously shows the version of the defendant to be true

and credible whereas the bonafides of the plaintiff are

suspected on account of non-production of the salary

certificate and the Court has to take prima facie view of the

matter at this stage. Moreover, the law laid down by the Court

in a particular judgment have to be seen in the context of the

facts of the said case rather than to be applied generally to all

other cases.

12. In Rekha Deepak Malhotra Vs. Deepak Jagmohan

Malhotra II (1999) DMC 453 the learned Single Judge of the

Bombay High Court had held that the wife was entitled to

maintenance under Section 18 of the Hindu Marriage Act as

in that case her leaving the matrimonial home was justified,

and therefore, merely on account of leaving the matrimonial

home she could not be debarred from claiming the

maintenance. In the instant case the plaintiff's case is that

she was turned out of the matrimonial home while as the

defendant has alleged that she has deserted the matrimonial

home without any just and reasonable cause.

13. Although providing of residence to the wife by the husband

has been held by courts to be an integral part of the

maintenance, but in the instant case in the absence of any

prima facie evidence to show that the plaintiff has been

thrown out or has left without just cause, it is difficult to

grant maintenance at this ad interim stage.

14. In Gaurav Nagpal Vs. Sumedha Nagpal I (2008) DMC 166

(DB), the Division Bench of this Court had held that under

Section 18 of the Hindu Marriage Act an ad interim

maintenance to the wife can be granted, and if so granted, the

quantum thereof to be challenged. Somewhat a similar view

is taken by the learned Single Judge in case titled Smt.

Neelam Malhotra Vs. Rajinder Malhotra & Ors. AIR 1994

DELHI 234 wherein it was observed as under:

"That being the position in law, when it is imperative for the husband to maintain his wife, it does not stand to any reason that during the

pendency of the suit for grant of maintenance, which may take decades to attain finality, the wife in the first instance be forced to face starvation and then subsequently is granted maintenance from the date of the filing of the suit, if she is fortunate enough to survive till then. I feel that such a view will be against the very intent and spirit of Section 18 of the Act."

15. In another case titled Raj Kumar Vs. Vijay Laxmi 2002 (61)

DRL 485, the learned Single Judge of this Court had granted

interim maintenance at a particular rate.

16. The sole question which arises for consideration is as to

whether the plaintiff in the instant case is entitled to an ad

interim maintenance when she herself is earning ` 13,000/-

per month where her petition under Section 18 of the Hindu

Adoption and Maintenance Act is pending adjudication. It

may be pertinent here to mention that the plaintiff is claiming

maintenance under Section 18 of the Hindu Adoption and

Marriage Act @ ` 20,000/- per month. It is alleged by the

learned counsel for the plaintiff that she was subjected to

cruelty, mental torture and harassment as a consequence of

which she got an FIR lodged against the defendant and his

family members. She was turned out from her matrimonial

home on 22.09.2008 and since then she is living with her

parents. It is not disputed by her that she is earning a sum

of ` 13,000/- per month from her employer where she is

employed. However, the plaintiff has not placed on record

her salary certificate. There ought to have been no difficulty

for the plaintiff to place her salary slip on record, but it seems

that the plaintiff has deliberately withheld this vital piece of

document or information.

17. Section 114(g) of the Evidence Act specifically lays down that

if a party is in possession of a particular kind of evidence and

the same is withheld then an adverse inference can be drawn

against such a party on account of withholding of the said

evidence.

18. The defendant in his written statement has taken a specific

plea that the plaintiff is employed in a private concern where

she is earning ` 25,000/- per month. In the light of these

averments, it becomes all the more imperative for the plaintiff

to have placed on record her salary certificate which she has

not done, therefore, one can safely assume that the objection

of the defendant regarding the payment of ad interim

maintenance to the plaintiff on account of her alleged

insufficiency of funds to maintain herself is grossly

exaggerated and self created. The defendant of his own has

placed on record salary certificate purported to have been

issued by his erstwhile employer which shows that his salary

is ` 20,000/- per month. This clearly tilts the balance in

favour of the defendant and against the plaintiff. He has

further resigned from the said post. It is not a case where

the husband is earning a substantial amount of money as

against a few thousand as claimed by the plaintiff. I agree

with the contention of the learned counsel for the plaintiff

that in a given case even if the wife is earning she may be

given ad interim maintenance but much would depend on the

status of the parties, the income of the wife and the husband

etc. But in the present case in totality of circumstances it

does not qualify to be a case where the wife deserves to be

given as interim maintenance.

19. The defendant has also denied that he owns a house in

Dwarka where he is living or that he owns a car. The

photocopy of the registration of the car is placed on record

which shows that the car is in the name of Mr. Anik Bose who

is claimed to be defendant's brother-in-law. Similarly, the

defendant has stated that the flat in question where he is

living actually belongs to his mother. No doubt, it has come

on the record that the said flat originally belonged to his

mother and the defendant jointly and the latter has

relinquished his 50 % of the share in the said flat in favour of

her mother sometime in the year 2008 but that does not

change the situation in favor of the plaintiff because the flat is

being used for residence and is not as a source of income.

20. The defendant has further stated that apart from this, the

defendant does not own any other property in Delhi or in

Howrah (West Bengal) nor is there anything on record which

shows that the defendant is living a lavish life. The defendant

has also placed on record a letter showing the acceptance of

resignation from his employer. In the light of all these facts

while granting ad interim maintenance, the Court has to form

a prima facie view of the matter on the basis of pleadings and

the documents which are placed on record. I find that

preponderance of probability is in favour of the defendant to

assume that his version is more truthful and correct as

compared to that of the plaintiff who has withheld the

information not producing her salary certificate which was

the minimum expected from her.

21. I do not consider it to be a fit case to allow the application of

the plaintiff for grant of interim maintenance as she is

earning `13000 per month while as the defendant is earning

approximately `25000 per month, though he has resigned

from the post. Accordingly the application is dismissed.

22. Expression of any opinion hereinbefore, may not be treated as

expression of opinion on the merits of the case.

V.K. SHALI, J.

September 14, 2010 KP