Dhirendra Aggarwal vs Sunita Aggarwal
2010 Latest Caselaw 4262 Del

21.

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                        Judgment Delivered on: 14.09.2010

+      CM(M) 1130/2008

DHIRENDRA AGGARWAL                                    ..... Petitioner
              Through :        Mr. Vivek Singh and Mr. Chandra
                               Prakash, Advs.
                    versus
SUNITA AGGARWAL                                  ..... Respondent
              Through :        Mr. Amrit Pal Singh Dhaliwal, 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 15.7.2008

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.659/2005, by virtue of which, the

petitioner husband has been directed to pay maintenance @

` 30000/-, per month to the respondent wife.

2. The facts of this case, as noticed by the trial court, are that

the marriage between the parties was solemnized on

11.3.1986 and out of their wedlock one girl child was born in

the year 1988, who is residing with her father and is being

looked after by her father. In the application filed before the

trial court, it was stated that the petitioner is a man of

means, he is a rich and wealthy person, having several

industries and other business, besides being a Member of

Parliament. The petitioner owns many luxurious cars,

movable and immovable properties and is earning about `

50.00 lakhs, per annum. By the said application, the wife

(respondent herein) had prayed for maintenance @ ` 1.00

lakh, per month, and ` 50000/- as litigation expenses.

3. It is contended by counsel for the petitioner (husband) that

respondent (wife) has an independent source of income and

she is the proprietor of a business running in the name and

style of M/s Ganpati Enterprises. Besides the respondent wife

has fixed deposits of ` 9.00 lakhs; ` 19.00 lakhs in her PPF

account; shares; insurance policy for ` 3.00 lakhs; and

jewellery worth ` 15.00 lakhs. While it is disputed that the

petitioner husband owns any industry it is submitted by

counsel for the petitioner that at the relevant time being a

Member of Parliament the petitioner was earning ` 12000/-,

per month.

4. Learned counsel for the petitioner has strongly urged before

this Court that even the trial court has noticed that the

respondent has received ` 19.00 lakhs in a PPF account,

which was transferred by her on 11.6.2007.

5. According to the petitioner parties had arrived at an amicable

settlement; a petition for divorce by mutual consent was also

filed; and the petitioner had paid a sum of ` 21.00 lakhs plus

other amounts as well to the respondent wife in full and final

settlement. However, the matter did not attain finality.

6. Learned counsel for the respondent wife submits that after

marriage the parties were residing together at Preet Vihar in

a palatial Bungalow, petitioner owns cars like Mercedes Benz,

BMW, etc., and thus, the respondent is entitled to maintain

the same standard of living as she was maintaining in her

matrimonial home. Counsel further submits that the trial

court has come to a categorical finding that petitioner is a

founder Director of M/s Daya Sugar Mill. Counsel also submits

that the respondent wife had moved an application under

Order XI Rule 14 CPC seeking directions for the petitioner to

file Memorandum and Articles of Association of M/s Daya

Sugar Mill, its balance sheet along with audit reports, list of

share holders of Ms/ Daya Sugar Mill, details with regard to

registration certificate of Mercedes Benz, Hyundai Terracon,

Tata Safari and BMW Cars as also copies of Income Tax

Return of the HUF. Counsel for the respondent further

submits that petitioner husband had filed a false affidavit on

30.4.2008 stating that Memorandum & Articles of Association

of M/s Daya Sugar Mill and its balance sheet have no concern

with him and the same are not in his possession and power.

However, the petitioner filed, on record, the Income Tax

Return and balance sheet for the years 2004-05, 2005-06 and

2006-07. In the affidavit dated 2.4.2008 filed by the

respondent, she has denied that she is the sole proprietor of

M/s Ganpati Enterprises, which belongs to the mother of the

respondent. Counsel also submits that the trial court has also

come to the finding that the parties have deliberately

concealed the documents and has raised various allegations

against each other. Even taking the submission made by the

petitioner as correct that he has deposited ` 9.00 lakhs in a

fixed deposit of the respondent and also deposited ` 19.00

lakhs in the PPF account of the respondent wife and also

jewellery worth lakhs of rupees, besides share, would show

that petitioner is a man of means. Even at this stage the

petitioner has failed to categorical state with regard to the

stand taken that the petitioner owns the industry, namely,

M/s Daya Sugar Mill and M/s Daya Engineering (Sleeper) Ltd.

The trial court has come to a finding that the petition for

divorce by mutual consent does not disclose the payment of `

21.00 lakhs to the respondent wife. Even taking into

consideration that the respondent was given a sum of ` 21.00

lakhs the interest which may accrue on this amount may still

not be sufficient to take care of the needs of the respondent

wife, taking into consideration the status of the parties and

the requirements of the respondent wife. Two important

factors which must be considered to arrive at the quantum of

maintenance are the standard of living of the parties and the

capacity and income of spouse from whom maintenance is

sought. 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". It is not in dispute that petitioner is a

Member of Parliament. Despite filing of an application under

Order XI Rule14 CPC by the respondent wife before the trial

court, calling upon the petitioner to file certain documents

with regard to his involvement in Daya Sugar Mill, copies of

Income Tax Returns and copies of regularization certificate of

car (Mercedes Benz, BMW, etc.) the petitioner had failed to

place the same on record. The petitioner has placed on

record a copy of the petition allege to have been filed under

Section 13(ib) of the Hindu Marriage Act for grant of divorce

by mutual consent. Para 7 of the petition reads as under:

"7. That the petitioners are living separately of their own free will and the petitioners are possessed of sufficient means to maintain themselves. That the petitioner no.1 who is Director of M/s Daya Engineering Works (Sleeper) Ltd., Regd: Office 27 A.G. Colony, Kadru, Ranchi (Jharkhand), and its Delhi Office at :A-95, Niti Bagh, New Delhi - 110 049; has made adequate arrangement for the future maintenance of the petitioner no.2 and the petitioner no.2 has agreed of her own free will not to make any claim in future. Therefore the petitioners have agreed to release each other from their liability to maintain the other."

7. Reading of para 7 quoted above shows that petitioner has

admitted that he is a Director of M/s Daya Engineering Works

(Sleeper) Ltd. Petition does not disclose the amounts agreed

to be paid or in fact paid to the respondent. Thus, the

submission of counsel for the petitioner that the petitioner

has paid large amounts to the respondent at the time of

signing of petition for grant of divorce by mutual consent, is

without any basis. Parties were last residing together at

Gulmohar Park, which is in a posh locality of South Delhi. It is

settled law that at the time of deciding an application under

Section 24 of Hindu Marriage Act the court must consider the

status of the parties and the amount required by the wife to

live in a similar lifestyle as she enjoyed in the matrimonial

home.

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

Dehradun and Ors., reported at (1997) 7 SCC 7, it has been

observed that neither of the parties disclose the correct and

true income therefore the Courts have to do some guess

work to arrive at a fair and just figure. 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."

9. Taking into consideration the facts of this case, the

statements of the parties and their standard of living, there is

no infirmity in the order of the trial court, by virtue of which,

respondent has been directed to pay maintenance @

`30,000/- per month. Accordingly, interim order dated

24.9.2008 stands vacated. Petition stands dismissed. It is

however, clarified that any observation made in the present

order is only for the purpose of deciding the petition under

Section 24 of the Hindu Marriage Act.

G.S. SISTANI, J.

September 14, 2010 'msr'