Seema Tripathi vs Surinder Dhar Diwedi
2011 Latest Caselaw 898 Del

43.
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CM(M) 1013/2009
%                              Judgment Delivered on: 15.02.2011
SEEMA TRIPATHI                                        ..... Petitioner
                   Through :   Mr. Suryakant Singla, Adv. along with
                               petitioner.
                   versus

SURINDER DHAR DIWEDI                            ..... Respondent
              Through : Mr. Neeraj Kumar Singh, Adv.
       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 7.7.2009

passed by learned Additional District Judge on an application

filed by the petitioner (wife) herein under Section 24 of Hindu

Marriage Act, which was dismissed primarily on the ground that

petitioner had concealed vital information from the Court that

she was running a beauty parlour in the premises (where she

was residing) besides receiving rental income from the first

floor and second floor of the same premises bearing no.R-3/86,

Newada Housing Complex, Kakrola Mor, Uttam Nagar, Najaf

Garh Road, New Delhi.

2. Learned counsel for the petitioner submits that learned trial

court has misdirected itself as the petitioner was neither

running a beauty parlour nor she was receiving rent from the

tenants, occupying the first floor and second floor of the

abovesaid property. Counsel further submits that respondent is

a man of means and the income tax return placed on record of

the trial court shows the monthly income of the respondent to

be `8500/-, per month, cannot be relied upon, as a person

earning `8500/-, per month, cannot purchase two houses,

particulars of which have been placed on record and are not

denied by the respondent, and also would not be in a position to

maintain a car. Counsel also submits that petitioner has no

source of income and she is solely dependent on her parents for

financial support. Counsel next submits that the estimated

income of the respondent is about `1.00 lakh, per month.

Counsel submits that respondent is a Pandit by profession and

makes horoscopes, which fact was admitted by the respondent

before the trial court.

3. It is next submitted by learned counsel for the petitioner that

the trial court has misread the complaint dated 20.10.2008

made by petitioner to CAW Cell, Kirti Nagar, New Delhi. The

petitioner had nowhere stated that `3000/-, per month, is being

received by her towards rent out of the property and what was

in fact stated by the petitioner was that property fetches rent of

`3000/-, per month. Even during the course of hearing, it was

submitted by the petitioner that neither the petitioner is the

owner of the property nor she has inducted anyone as a tenant

in the said property.

4. Learned counsel for the petitioner submits that her stand is

vindicated as during the pendency of this matter and with a

view to ascertain whether the petitioner was running a beauty

parlour or not and also as to whether the aforesaid property

was tenanted and as to who was receiving the rent, a Local

Commissioner was appointed, who has filed her report, in

which, on the basis of information sought from the neighbours,

it has been stated that petitioner is not running any beauty

parlour, although, a beauty parlour was being run four or five

years back and that too only for a period of two or three

months. Another finding has been given by the Local

Commissioner that there are no tenants in the said property.

5. Learned counsel for the respondent while refuting the

submission made by the counsel for the petitioner submits that

respondent was thrown out of the house by the petitioner and

he is residing in a katcha structure at J-8, Rajouri Garden, in

Uma Maheshwari Mandir, which belongs to Uma Bharti Mission.

Counsel further submits that the second property situated at J-

7/94, III Floor, Nehru Market, Rajouri Garden, New Delhi, is in

the possession of the erstwhile wife and children of the

respondent. However, learned counsel for the petitioner

submits that there is not a single document, which has been

filed by the respondent to show that respondent has obtained a

divorce from the earlier wife. Counsel for the respondent also

submits that respondent is facing financial hardship as he had

to spend on the marriage of his daughter, who was born out of

the first wife.

6. Learned counsel for the respondent submits that income tax

return is a reliable piece of evidence, which would show that

petitioner is earning barely `8500/-, per month, and out of

which he is paying `3000/-, per month, as maintenance to his

first wife and has little or no means even to support himself.

Counsel further submits that petitioner had made a complaint

to the income tax authorities and upon enquiry a clean chit has

been given to the respondent.

7. I have heard learned counsel for the parties and also perused

the order dated 7.7.2009 passed by learned trial court. While

dismissing the application filed by the petitioner wife under

Section 24 of the Hindu Marriage Act, the learned trial court has

primarily relied on the contents of the complaint made by the

petitioner before the CAW Cell and concluded that it is the

petitioner, who was receiving `3000/-, per month, towards rent

out of the said property. I have carefully perused the complaint

dated 20.10.2008 addressed to CAW Cell, Kriti Nagar, New

Delhi. The complaint does not state that the petitioner is

receiving Rs.3,000/- per month as rent. It simply states that the

property fetches rent of Rs.3,000/- per month. At best it can be

said that the complaint is inappropriately worded. I find force in

the submission made by learned counsel for the petitioner that

in fact the property was capable of fetching `3000/-, per month,

and not that any rent was being received by the petitioner.

Even otherwise the report of the Local Commissioner is

absolutely clear that petitioner is neither receiving any rent nor

there are any tenants, nor she is running any beauty parlour in

the said property. In the absence of any supporting document

to show that, in fact, petitioner has any independent source of

livelihood, the order of the trial court cannot be upheld. I find no

force in the submission made by learned counsel for the

respondent that an income tax return is a reliable document as

it has been repeatedly observed that persons in private sector

often do not disclose their correct and true income. This case

seems to be no different in view of the fact that it is not

believable that respondent would earn only `8500/-, per month,

and in this meager income, he would be in a position to

purchase two properties and also be able to maintain a car.

8. 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.
                    (4)     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?

9. 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.

Although there cannot be an extensive list or 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)      Credit cards;

                  (vi)     Club Membership;

                  (vii)    Amount of Insurance Premium paid;

(viii) Property or properties purchased;

                  (ix)        Rental income;

                  (x)      Amount spent on travel/ holiday;

                  (xi)     Number of mobile phones;

                  (xii)    Locality of residence;

                  (xiii)      Amount of rent being paid;


                   (xiv) Qualification of spouse;

                  (xv)    School(s) where the child or children are studying

                          when parties were residing together;

(xvi) Amount spend on fees and other expenses incurred;

(xvii) Amount spend on extra-curricular activities of

children when parties were residing together;

(xviii) Facility of driver, cooks and other help; and

(xix) Household facilities.

                  (xx)      Repayment of loan;

                  (xxi)     Capacity to repay loan.

10. 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 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.

11. In this case, assessment of the income of the respondent may

be made on the basis of three relevant factors. Firstly, the

capacity of a person to purchase two properties; secondly, it is

presumed that in case the respondent has to maintain earlier

family as well, surely he would have contributed something

towards the marriage of his daughter; and thirdly the general

status of the respondent himself, which can be assessed on the

basis of the fact that he is maintaining a car. The petitioner has

no source of livelihood, although, admittedly, she is residing in

the ground floor of property, which belongs to the respondent.

Thus, in a way respondent is contributing something towards

her stay.

12. Having regard to the aforesaid facts and taking a rough

estimate of the income of the petitioner and the fact that

respondent is a Pandit by profession and is also making

horoscopes, has been able to purchase two properties and

maintains a car, which fact is admitted by the respondent,

respondent is directed to pay maintenance to the petitioner @

`7500/-, per month, in addition to providing the ground floor to

the petitioner, where she is already residing. The maintenance

shall be paid by the respondent to the petitioner from the date

of filing of the application. It is further submitted by counsel

that petitioner has no objection if the first floor and the second

floor of the aforesaid property is given on rent by the

respondent. Petitioner, who is present in Court, undertakes not

to cause any obstruction in this regard.

13. Learned counsel for the respondent seeks six months time to

clear all the arrears. The prayer of the respondent is allowed,

subject to the condition that all arrears shall be cleared by the

respondent in six equal installments, to be paid in each month,

besides regular maintenance.

14. Accordingly, petition stands disposed of in view of above.

G.S. SISTANI, J.

February 15, 2011 'msr'