Delhi High Court
Preeti vs Ravinder on 7 February, 2011
Author: G. S. Sistani
04.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 1503/2007
% Judgment Delivered on: 07.02.2011
PREETI ..... Petitioner
Through : Ms. Sonia Arora, Adv. along with the
petitioner.
versus
RAVINDER ..... Respondent
Through : Mohd. Kausar Perwel, Proxy Adv. along with
the respondent.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
1. Whether the Reporters of local papers may be allowed to see
the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
G.S.SISTANI, J. (ORAL)
1. Present petition is directed against the order dated 3.10.2007
passed by learned Additional District Judge, Delhi, on an application
filed by the petitioner (wife), seeking enhancement of maintenance
for herself and her minor son, who was two years of age at the time
of passing the order.
2. Learned counsel for the petitioner wife submits that learned trial
court had initially awarded a sum of `4500/-, per month, as
maintenance, to the petitioner and her minor son on an application
filed by the petitioner under sections 24 & 26 of the Hindu Marriage
Act. The amount was later enhanced to `7000/-, per month, which
amount is also stated to be insufficient. Counsel further submits
that learned trial court has failed to take into consideration the
status of the parties; the fact that petitioner is a housewife; has a
minor school going son; she has no source of livelihood; and she is
only dependent on the respondent (husband) for maintenance and
support. Counsel also submits that the amount awarded by the trial
court is extremely unreasonable in view of the fact that petitioner
has to pay for the school fee, bus fee, uniform, transport and for
extra-curricular activities besides other day-to-day expenses of the
minor five years old son. Counsel next submits that trial court has
completely lost track of the fact that petitioner is entitled to enjoy the
same standard of living as she was enjoying in her matrimonial home.
3. Leaned counsel for the petitioner submits that the respondent is a
man of means and he is owner of immovable properties. Further it is
submitted that the respondent has concealed his income. In support
of this plea, counsel for the petitioner has drawn the attention of the
Court to an affidavit filed by the petitioner at page 61 of the paper
book, along with which copy of an affidavit which was to be
furnished along with the nomination papers, which was filed
by respondent before the Returning Officer at the time
of contesting election to Delhi Legislative Assembly, 2008. It is
submitted by the counsel for the petitioner that the
respondent had himself deposed in the affidavit and the
annexures thereto that respondent has a cash balance of `1.00
lakhs in his saving bank account no.3783 in Bank of
Maharashtra, Bapdola Branch, Delhi. Further, the counsel submits
4. that besides the savings of `1.00 lakh, the petitioner has admitted
that he pays LIC premium of `76,728/-, annually; owns three motor
cycles; and is also the owner of a land measuring 1800 sq. yds.
situated at Rohtak. Further, it is submitted by the counsel for the
petitioner that a perusal of the affidavit would also show that the
respondent had taken a loan in the sum of `14.00 lakhs from ICICI
Bank and `2.00 lakhs from Bank of Maharashtra. Counsel submits
that the stand taken by the respondent that he earns only `4000/-,
per month, cannot be believed as it cannot be expected that any
bank would grant loan to the tune of `14.00 lakhs and `2.00 lakhs,
respectively to a person, who earns only `4000/-, per month.
5. Counsel for the petitioner next submits that this affidavit also
shows that respondent is the owner of non-agricultural land,
measuring 1800 sq. yards, situated at Village Ghillour Kalan, Tehsil
and District Rohtak, Haryana, on which, admittedly, a petrol pump
is being run, of which, the petitioner is the owner and has
substantial share in it.
6. Learned counsel for the respondent has opposed the present
petition for enhancement on the ground that respondent (husband)
is not the owner of petrol pump, known as M/s Kissan Filling
Station, which belongs to one Mr. Chaju Lal; and the petitioner is
working as a Manager in this petrol pump and is being paid only
`4000/-, per month. Counsel for the respondent further submits
that there is no written agreement between Mr. Chaju Lal and the
respondent, except that he is paid `4000/-, per month. Counsel also
submits that there is no need for enhancement as the petitioner
has concealed the fact that she is working as a Teacher in a
computer institute and she is able to maintain herself and the child.
Counsel for the petitioner disputes the same and submits that
petitioner is only pursuing computer course from the said institute.
7. I have heard counsel for the parties and also perused the
documents placed on record. The basic facts are not in dispute that
marriage between parties was solemnized on 11.2.2005. A male
child was born out of their wedlock on 9.11.2005. Parties started
residing separately from 23.3.2006 onwards.
8. It is settled position of law that a wife is entitled to live in a similar
status as was enjoyed by her in her matrimonial home. It is the
duty of the courts to ensure that it should not be a case that one
spouse lives in a life of comfort and luxury while the other spouse
lives a life of deprivation, poverty. During the pendency of divorce
proceedings the parties should be able to maintain themselves and
should be sufficiently entitled to be represented in judicial
proceedings. If in case the party is unable to do so on account of
insufficient income, the other spouse shall be liable to pay the
same.
9. 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."
10. A Single Judge of this Court in the case of Bharat Hegde v.
Saroj Hegde, reported at 140 (2007) DLT 16 had culled out
following 11 factors, which can be taken into consideration for
deciding the application under Section 24 of Hindu Marriage Act,
relevant portion of which reads as under:
8. Unfortunately, in India, parties do not truthfully reveal
their income. For self employed persons or persons employed
in the unorganized sector, truthful income never surfaces.
Tax avoidance is the norm. Tax compliance is the exception
in this country. Therefore, in determining the interim
maintenance, there cannot be mathematical exactitude. The
court has to take a general view. From the various judicial
precedents, the under noted 11 factors can be culled out,
which are to be taken into consideration while deciding an
application under Section 24 of the Hindu Marriage Act. The
same are:
(1) Status of the parties.
(2) Reasonable wants of the claimant.
(3) The independent income and property of the
claimant.
The number of persons, the non applicant has to
maintain.
(5) The amount should aid the applicant to live in a
similar life style as he/she enjoyed in the
matrimonial home.
(6) Non-applicant's liabilities, if any.
(7) Provisions for food, clothing, shelter, education,
medical attendance and treatment etc. of the
applicant.
(8) Payment capacity of the non-applicant.
(9) Some guess work is not ruled out while estimating
the income of the non-applicant when all the sources
or correct sources are not disclosed.
(10) The non-applicant to defray the cost of litigation.
(11) The amount awarded under Section 125, Cr.P.C. is
adjustable against the amount awarded under
Section 24 of the Act.
11. Further it has been noticed by the Courts that the tendency of the
spouses in proceedings for maintenance is to not truthfully disclose
their true income. However, in such cases some guess work on the
part of Court is permissible.
12. The Supreme Court of India in the case of Jasbir Kaur (Smt.) (supra),
has also recognized the fact that spouses in the proceedings for
maintenance do not truthfully disclose their true income and
therefore some guess work on the part of the Court is permissible.
Further the Supreme Court has also observed that "considering the
diverse claims made by the parties one inflating the income and
the other suppressing an element of conjecture and guess work
does enter for arriving at the income of the husband. It cannot be
done by any mathematical precision".
13. Although there cannot be an exhaustive list of factors, which are to
be considered in guessing the income of the spouses, but the order
based on guess work cannot be arbitrary, whimsical or fanciful.
While guessing the income of the spouse, when the sources of
income are either not disclosed or not correctly disclosed, the Court
can take into consideration the following factors:
(i) Life style of the spouse;
(ii) The amount spent at the time of marriage and the
manner in which marriage was performed;
(iii) Destination of honeymoon;
(iv) Ownership of motor vehicles;
(v) Household facilities;
(vi) Facility of driver, cook and other help;
(vii) Credit cards;
(viii) Bank account details;
(ix) Club Membership;
(x) Amount of Insurance Premium paid;
(xi) Property or properties purchased;
(xii) Rental income;
(xiii) Amount of rent paid;
(xiv) Amount spent on travel/ holiday;
(xv) Locality of residence;
(xvi) Number of mobile phones;
(xvii) Qualification of spouse;
(xviii) School(s) where the child or children are studying when
parties were residing together;
(xix) Amount spent on fees and other expenses incurred;
(xx) Amount spend on extra-curricular activities of children
when parties were residing together;
(xxi) Capacity to repay loan.
14. These are some of the factors, which may be considered by any
court in guesstimating or having a rough idea or to guess the
income of a spouse. It has repeatedly been held by the Courts that
one cannot ignore the fact that an Indian woman has been given an
equal status under Articles 14 and 16 of the Constitution of India
and she has a right to live in dignity and according to the status of
her husband. In this case, the stand taken by the respondent with
respect to his earning is unbelievable.
15. I have perused the affidavits filed by the respondent before the
Returning Officer, copies of which have been placed on record by
the petitioner. As per the affidavits filed by the respondent before
the Returning Officer he has disclosed the following assets:
A DETAILS OF MOVABLE ASSETS
Sl. Description Self Spouse(s) Dependent- Dependent- Dependent-
No. 1 Name 2 Name 1 Name
(i) Cash Rs.1,00,000 Smt. Preeti Akshit N.A. N.A.
(Living (living with
separately) his mother)
(ii) Deposits in With SB A/c N.A. N.A. N.A. N.A.
Banks, No.3783, Bank
Financial of Mahrashtra,
Institutions Bapdola
and Non- Branch, Delhi
Banking having
Financial balance Rs.1.
Companies. lac
(iii) Bonds, N.A. N.A. N.A. N.A. N.A.
Debantures
and Shares
in
companies.
(iv) Other LIC Policy N.A. N.A. N.A. N.A.
financial No.331782026
instruments, of LIC Branch
NSS, Postal District
Savings, LIC Centre, Janak
Policies, etc. Puri, New
Delhi and the
premium of
the same is
being paid at
Rs.76,728/-
p.a.
(v) Motor 1. Hero Honda N.A. N.A. N.A. N.A.
Vehicles Passion,
(details of Regn.
make, etc.) No.DL 3S AJ
Model,
2001.
2. Royal
Enfield.
(vi) Jewellery Gold N.A. N.A. N.A. N.A.
(give details ornaments
of weight worth
and value) Rs.45,000/-
weighing 45
gms. Appx.
(vii) Other No. No. No. No. No.
Assets
Sl. Description Self Spouse(s) Dependent- Dependent- Dependent-
No. 1 Name 2 Name 1 Name
(i) .....
(ii) Non- A plot area N.A. N.A. N.A. N.A.
Agricultural measuring
Land - 1800 sq. yds.
Location(s) - at Villae
Survey Ghilord, Distt.
-Number(s) Rohtak,
-Extent (Total Haryana
Measurement) Having worth
Current Rs.10,00,000/-
Market Value Approx.
16. The details of the assets of the respondent as disclosed by him,
would show that he is a man of means. He possesses both movable
and immovable property. He has also availed of loan facility from
two banks in the total sum of `16.0 lacs. As per the stand of the
respondent he has given on lease his land to Mr.Chaju Lal to run a
petrol pump. It is most improbable that respondent would give his
land on lease and permit Mr. Chaju Lal to run a petrol pump and in
return he would only be paid `4000/-, per month. The respondent
has failed to place any document on record to clear the air and to
show the arrangement between him and Mr. Chaju Lal. To my
mind, this amounts to willful concealment of relevant material and
the Court must draw an adverse inference against the respondent. I
also find it unbelievable that salary of respondent is only `4000/-,
per month, which is below the minimum wages. It is impossible for
any nationalized Bank to grant loan to a person to the tune of
`14.00 lakhs and `2.00 lakhs, respectively, without a person giving
material to the bank to show his ability to repay the loan.
17. In this case, grant of loan to the respondent to the tune of `14.00
lakhs and `2.00 lakhs, respectively; respondent owning motorcycle;
immovable property in the name of respondent; and, admitting that
Chajju Lal is running a petrol pump on the land of the respondent -
are important factors to be considered for guessing the income of
the respondent. Besides, as already observed, it is neither realistic
nor probable that the respondent would allow Mr. Chaju Lal to run a
petrol pump on his land and the respondent would work as a
Manager for a meagre salary of `4000/- in the absence of a written
agreement. Further, the respondent has failed to satisfy this court
that petitioner has any independent source of income to maintain
herself and the minor child. The petitioner is bringing up her five
year old minor school going son and her demand for sufficient
maintenance is fair and just in view of the fact that petitioner has
to spend on the school fee, transport, uniform, extra-curricular
activities of the minor child and other day-to-day expenses. While
this court is conscious of the observations made by the Apex Court
in the case of Jasbir Kaur (Smt.) (supra) that "the amount of
maintenance fixed for the wife should be such as that she can live
in reasonable comfort, considering the status and 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 the case. At the
same time, the amount so fixed cannot be excessive or exorbitant",
I am satisfied that the needs of the wife and the minor child are
genuine and the maintenance fixed in this case is extremely
unreasonable. Consequently, the order of the trial court is modified.
The amount of maintenance is enhanced from `7000/-, per month,
to `15,000/-, per month, to be paid by respondent (husband) to the
petitioner and her minor son.
18. Petition stands allowed, in above terms.
G.S. SISTANI, J.
February 07, 2011
'msr'
