Sucheta Zutshi Nee Pandita vs Pankaj Pandita
2011 Latest Caselaw 159 Del

Citation : 2011 Latest Caselaw 159 Del
Judgement Date : 12 January, 2011

Delhi High Court

Sucheta Zutshi Nee Pandita vs Pankaj Pandita on 12 January, 2011

Author: G. S. Sistani

25.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CM(M) 566/2008

%                              Judgment dated : 12.01.2011

SUCHETA ZUTSHI NEE PANDITA                            ..... Petitioner
               Through : Mr. Ajay Kumar, Adv.

                   versus

PANKAJ PANDITA                                        ..... Respondent
                   Through :   Nemo.

      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 3.3.2008

passed by learned Additional District Judge, Delhi, on an

application filed by petitioner under Section 24 of Hindu

Marriage Act, in HMA No.274/2007, seeking interim

maintenance for herself and for her minor child. Learned trial

court vide its order dated 3.3.2008 has granted maintenance @

`4000/-, per month, to the petitioner (wife) and `2500/-, per

month, to the minor child.

2. Learned counsel for the petitioner submits that maintenance

awarded by the trial court is extremely unreasonable and

insufficient for the petitioner and her school going minor son,

who is stated to be seven years of age. Counsel further submits

that petitioner has no other source of livelihood. Learned

counsel for the petitioner has drawn the attention of the Court

to an affidavit filed by the petitioner in this court in compliance

with the order dated 21.4.2010 in which a categorical assertion

has been made by the petitioner that she is not employed.

3. Learned counsel for the petitioner submits that although

petitioner is residing with her parents but she has to pay for the

school fee, school uniform, transport and other expenses.

Counsel further submits that learned trial court while passing

the order for maintenance has failed to take into consideration

the family background of the parties and the standard of living,

which was being maintained by them in their matrimonial

home.

4. Learned counsel for the petitioner submits that respondent

(husband) is a Senior Software Engineer, which is evident from

the salary slip, which has been placed on record. Counsel

further submits that salary slip of the petitioner would show

that the annual income of the respondent is `4,81,014/-.

Counsel also submits that even in case the deductions are

made with respect to conveyance allowance, house rent

allowance and Provident Fund, this would still leave the

respondent with an income of more than `30,000/-, per month.

Counsel next submits that petitioner and her son are entitled to

a similar lifestyle as was being enjoyed by her in her

matrimonial home. The counsel for the petitioner submits that

despite having considered these factors and also discussed the

settled position of law, the trial court has granted maintenance

@`4,000/- to the petitioner (wife) and `2,500/- to the minor

child.

5. Despite various opportunities having been granted, reply to this

petition has not been filed by the respondent. None had

appeared on behalf of the respondent on the last date of

hearing. None has chosen to appear on behalf of the

respondent even today.

6. I have heard learned counsel for the petitioner and also perused

the order dated 3.3.2008 passed by the learned trial court and

the salary slip of the petitioner, which has been placed on

record.

7. The factors to be considered while deciding an application

under Section 24 of Hindu Marriage Act can never be

exhaustive and the courts must consider the facts of each case.

The following undisputed facts which emerge are that marriage

between the parties was solemnized on 31.10.2001. Out of the

wedlock between the parties a son was born, who is presently 7

years of age and is studying in a private school. Parties

separated in the year of 2006. The trial court has observed in

its order that respondent is working as an Engineer in a

multinational company and is getting a monthly salary of

`34,000/-, per month, approximately. The trial court has further

observed that the respondent has shown his monthly expenses

as `22,000/-, per month, by including his LIC premium and

income tax.

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.