Shri Anil Goyal vs Smt.Anupama Goyal
2010 Latest Caselaw 4464 Del

32.

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Judgment Delivered on: 22.09.2010

+     CM(M) 795/2009

SHRI ANIL GOYAL                                       ..... Petitioner
                    Through :   Mr. Pradeep Bhardwaj, Adv.

                    versus

SMT. ANUPAMA GOYAL                                    ..... Respondent
              Through :         Mr. Hari Dutt Sharma, 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 23.3.2009

passed by learned Additional District Judge II, Central, Delhi,

on an application filed by the respondent (wife) under Section

24 of the Hindu Marriage Act in HMA No.191/2008 for grant of

maintenance. By the impugned Order the trial court has

directed the petitioner husband to pay maintenance to the

respondent wife @ ` 10000/- and to the minor child @ ` 7000/-

. Aggrieved by the aforesaid order the present petition has

been filed.

2. Learned counsel for the petitioner submits that learned trial

court has acceded its jurisdiction and failed to take into

consideration that petitioner husband was only running a

computer centre and barely earns ` 92000/- (Approx.), per

annum. Counsel further submits that the impugned order by

which the interim maintenance @ ` 10000/-, per month, to the

wife and ` 7000/-, per month, to the minor child was awarded,

is in excess and punitive in nature. Counsel also submits that

trial court has wrongly considered that the educational

institutions are being run by the father of the petitioner,

however, they are charitable institutions, which are being run

by a society. Counsel next submits that petitioner is not in a

position to pay the amount of maintenance. Even otherwise

marriage between the parties was solemnized in a simple

manner in a Temple.

3. Learned counsel for the respondent has opposed the present

petition on the ground that the petitioner has failed to disclose

his true income before the trial court as well as before this

Court. Counsel further submits that petitioner has not

disclosed his designation in the two schools nor he disclosed

the income drawn by him from the same. Counsel further

submits that petitioner has failed to place on record material

documents with regard to the constitution of the schools, the

names of the Principals of the Schools and the names of the

members of the Managing Committee of the schools. The

petitioner has also failed to file any document with regard to

the Constitution of the Computer Centre, which is being run by

him in the City Senior Secondary School. Counsel also submits

that neither any statement of account nor any other

supporting document has been placed on record by the

petitioner. Counsel next submits that income tax return of the

petitioner does not portray a true picture of his income.

4. It is contended by counsel for the respondent that prior to the

marriage of the petitioner the father of the petitioner had

written a letter to the father of the respondent, a copy of

which has been filed on record, which reads as under:

            "Dayan and Goyal                   215, Jagat Colony,
            Office:                            Bhiwani (Haryana)
            City Senior Secondary School       01664-242887 (Office)
            Hansi Road, Bhiwani                9416059887 (Office)
                                               01664-254343 (Resi.)
                                               9416057887 (Resi.)

            Dear Friend,

                        Namaskar,

I have been retired from the post of Senior Manager from Punjab National Bank, Yamuna Nagar. I am running five Senior Secondary Schools (10+2) in Bhiwani (Haryana), and the buildings of the same are self occupied building. My three sons are working at the post of Principals in their own schools. I am having own House and some of the land. Both elders sons have already been married. Third son (Anil Goyal) has been granted legal Divorce. His age is 35 years (Date of birth 04/07/1969, Time 12.15 Noon, Birth Place - Fatehabad (Haryana). His educational qualification is M.A. and height 5'11". If you think fit, then contact us, I want dowry-less marriage.

Yours well-wisher

- SD-

DAYA NAND GOYAL"

5. Counsel for the respondent submits that in this letter, it was

stated by the father of the petitioner that he is running five

Senior Secondary Schools. Further it was also mentioned by

the father of the petitioner that his sons are working as

Principals in their own schools. Counsel for the petitioner has

denied that this letter was written by the father of the

petitioner. Even otherwise, it is submitted that the father of

the petitioner is not a party to the present proceedings.

6. Learned counsel for the respondents has also filed a copy of

the lease agreement entered into between the petitioner and

the BSNL wherein lease has been executed for installation of a

mobile phone tower at a rent of ` 5000/-, per month. Counsel

has stated that respondent is also dealing with Vastu and he

has ample clientage and is earning handsome amount per

month.

7. Learned counsel for the petitioner submits that the income of `

5000/-, per month, from the mobile phone tower has been

disclosed by the petitioner in an affidavit filed by him,

however, the petitioner is entitled to only 1/3rd share of the

income from the mobile phone tower.

8. Heard counsel for the parties and also perused the order

passed by the trial court as also the documents placed on

record. The facts necessary for disposal of the present petition

are that the marriage between the parties was solemnized on

17.11.2005. One female child was born out of their wedlock,

who is residing with the mother. According to the application

filed by the respondent wife under Section 24 of the Hindu

Marriage Act petitioner (husband) belongs to a rich family; he

and his family members have five schools in Haryana;

petitioner is the Principal of two schools and the income of the

petitioner is more that ` 2.00 lakhs. Besides, being the owner

of acres of agricultural land the petitioner has rental income

from BSNL Mobile phone tower installed at one of his

premises. The respondent wife is stated to be a house wife

with no independent source of income to maintain herself as

well as her minor daughter. The petitioner has denied all the

claims made by the respondent wife before the trial court. In

his reply the petitioner has stated that he does not belong to a

rich family, his family does not own five schools and he is not

the Principal of two schools. He has further denied that he is

the owner of agricultural land or a plot in Haryana. He has

stated that one school is being run by Charitable Educational

Society of India in which he and his family members are only

the office bearers who have no concern with the income of the

said school. He has stated that his monthly income is

Rs.7000/-.

9. While dealing with an application under Section 24 of Hindu

Marriage Act the court must take into consideration that the

spouse enjoys the same standard of living as was being

enjoyed by he/she in the matrimonial home. The court must

also consider that the maintenance which has been awarded

should not be punitive in nature and the person should be able

to pay the same.

10. 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."

11. In this case the Court cannot lose track of the fact that besides

herself the respondent has to maintain her minor daughter,

who is four years of age. While it has not been disputed during

the course of hearing that petitioner and his family runs five

schools while one of the school is being run by Charitable

Educational Society of India in which the petitioner and his

family members are only the office bearers. It is also not

disputed that petitioner and his father are the founder

members of the society, which runs the schools. Further it is

not disputed that the business of computer centre is being

carried out in the premises of one of the schools. On a query

raised by the Court with regard to the rent which is being paid

to the school/society, the explanation rendered is that since

the petitioner is running a service to the school no rent is

being charged. While dealing with the application under

Section 24 of the Hindu Marriage Act the trial court has taken

into consideration the settled principle of law. Once the

petitioner has admitted that the educational institutions are

being run by the father of the petitioner, however, they are

charitable institutions, which are being run by a society, the

petitioner should have filed relevant documents of the society

on record to show the precise role of the petitioner and his

family members in the society to enable the court to arrive at

a fair decision. As the petitioner has failed to produce the

relevant documents, which are in his possession and power

with regard to the society running the school, as also the

petitioner has failed to clarify on what basis and understanding

he is running a computer centre in a school, an adverse

inference has to be drawn against the petitioner. Keeping in

mind the status of the parties and the fact that respondent has

to look after herself besides one minor daughter, I do not

consider the amount awarded by the trial court to be

exorbitant. I find no infirmity in the order dated 23.3.2009

passed by the trial court. Accordingly, present petition stands

dismissed.

G.S. SISTANI, J.

September 22, 2010 'msr'