Delhi High Court
Kapil Juneja vs Sonia Juneja on 19 December, 2011
Author: Kailash Gambhir
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 21/2011 & CM No.361/2011
Judgment delivered on : 19th December, 2011
KAPIL JUNEJA ..... Petitioner
Through: Mr. Jagat Singh & Ms. Deepa Arya,
Advs.
versus
SONIA JUNEJA ..... Respondent
Through: Mr. Praveen Kumar, Adv.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
KAILASH GAMBHIR, J. (Oral)
*
1. By this petition filed under Article 227 of the Constitution
of India, the petitioner seeks to modify the order dated 26.10.2010 to
reduce the maintenance amount to Rupees 3,500/- from the awarded
amount of Rupees 14,000/- per month.
2. Arguing for the petitioner, Mr. Jagat Singh, learned
counsel submits that the present income of the petitioner is not
more than Rupees 6,000/- per month. Learned counsel also submits
that the petitioner has been paying the amount of maintenance of
Rupees 14,000/- per month towards the maintenance of the
respondent and the minor child. Learned counsel also submits that
the learned Trial Court has not taken into consideration the amount of
Rupees 5,00,000/- paid by the petitioner at the time of anticipatory
bail, as from the said amount, the respondent must be either earning
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some interest or some other amount by investing the same in some
business. Learned counsel also submits that the learned Trial Court
has ignored the Income Tax Returns placed on record through which
the income of the petitioner was proved between Rupees 4000-5000/-
per month.
3. Opposing the present petition, Mr. Praveen Kumar,
learned counsel for the respondent, submits that when the respondent
was living with the petitioner, then at that point of time a joint
account was opened by the petitioner and in the said joint account,
certain deposits were being made by the petitioner. Learned counsel
also submits that the respondent had never carried on any business,
independently or with her husband but the petitioner used to obtain
the signatures of the respondent on various papers, as, being the wife,
she had to sign these papers. Learned counsel also submits that with
a view to make capital, the petitioner had opened the joint account
with the respondent, showing the business income being earned by
both of them through the said joint bank account. Learned counsel
also submits that Rupees 5,00,000/-, as was paid by the petitioner, has
been kept in a fixed deposit and the learned Trial Court had clearly
held that the said amount paid by the petitioner would be taken
into account in the event of any final settlement between the
parties. Learned counsel also submits that the said amount of
Rupees 5,00,000/- cannot be taken into account, and it was rightly so
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not considered by the learned Trial Court as the said amount is not
the amount for the interim maintenance of the respondent or the
minor child. Learned counsel further submits that as per the Income
Tax Returns placed on record by the petitioner, it was quite evident
that the petitioner had been paying an amount of Rupees 48,029/-
towards LIC premium and Rupees 8,511/- towards general insurance
for the year 2009. The contention raised by learned counsel for the
respondent is that the petitioner, who is paying about Rupees 50,000/-
per month towards his premiums, cannot be said to have been earning
an amount of Rupees 4000-5000/- per month. Learned counsel also
submits that the petitioner himself has given an offer in the present
petition that he can pay an amount of Rupees 3500/- per month
towards maintenance of minor child and even if that amount is taken
into consideration, it cannot be assumed that the petitioner would be
earning an amount of Rupees 4,000-5,000/- per month. The contention
raised on behalf of learned counsel for the respondent is that the
petitioner has deliberately suppressed his correct income and,
therefore, the learned Trial Court, based on some guess work, has
correctly arrived at the income of the petitioner from his business at
Rupees 30,000/- per month.
4. Refuting the said submission, Mr. Jagat Singh, counsel for
the petitioner submits that the insurance premiums are being paid by
the father of the petitioner from the business earnings and, therefore,
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the said amount of the premiums being paid by the petitioner cannot
be said to be from the income earned by the petitioner.
5. I have heard learned counsel for the petitioner at
considerable length.
6. The petitioner has filed the present petition praying that
the maintenance amount of Rupees 14,000/- awarded by the learned
trial vide order dated 26.10.2010 be reduced to Rupees 3500/- on the
ground that the appellant does not have the means to pay such a high
amount and that the learned trial court fell in grave error while
calculating the said amount.
7. It is not in dispute that the parties got married on
15.2.2010 and out of the said wedlock a girl child was born on
1.3.2003. The petitioner filed a petition for divorce under section
13(1)(ia) of the Hindu Marriage Act, 1955 (HM Act) and during the
pendency of which an application under Section 24 of the HM Act was
filed by the respondent. The learned judge vide order dated
26.10.2010 awarded an amount of Rupees 7,000/- per month to the
respondent as well as the minor child each from 24.2.2010 till the
disposal of the petition, feeling aggrieved with which the petitioner
has preferred the present petition.
8. The plea taken by the counsel for the appellant is that the trial
court committed an illegality in estimating the income of the
petitioner to be Rupees 30,000/- as the petitioner does not earn
CM(M)21/2011 Page 4of 6
anything more than a meager amount of Rupees 4,000/-. The
respondent on the other hand has submitted that the petitioner has
played fraud upon the Court by disclosing his income only at
Rupees 4,000/- per month as he is from an upper middle class family
and has a good income.
9. It has become a common feature that in an application
under Section 24 of the HM Act, the applicants seeking grant of
interim maintenance would inflate the income of the non applicant
spouse and whereas on the other hand the non applicant spouse
would never disclose his or her true income and incorrectly claims to
be a person of small means. It is often seen that none of the parties
truthfully disclose their incomes, in which case the only option left for
the court is to do some guess work.
10. The learned Trial Court has based on the material placed
on record estimated the income of the petitioner to be not less than
Rupees 30,000/-, which in my considered view is not an obscene
amount looking at the standard and status of the parties. The purpose
of Section 24 is to prevent the unearning spouse to be prevented from
vagrancy and destitution and to make him/her live with dignity during
the pendency of the proceedings. With none of the parties disclosing
the actual income, the maintenance amount and the income cannot be
calculated with mathematical precision. The learned Trial Court has
divided the said estimated income into four cakes and has thus
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awarded the amount of Rupees 7,000/- to the respondent wife and
Rupees 7,000/- to the minor child. I find no perversity in the said
amount of maintenance awarded by the learned Trial Court. It is the
duty of the earning spouse to pay the non earning spouse and the
husband in the present case cannot shirk away from the duty by
claiming to be able to give a paltry amount of Rupees 3,500/- to the
respondent and the child. In any case I find merit in the reasoning
given by the learned trial court that the husband cannot be parting
with the amount of Rs.3500 if his total income is at Rupees 6,000/-
only.
11. In the light of the foregoing, this court does not find any
merit in the present petition and the same is hereby dismissed.
KAILASH GAMBHIR,J
DECEMBER 19, 2011
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