Pramod Kumar Dixit vs Seema Dixit @ Sanno
2011 Latest Caselaw 1893 Del

8
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CM(M) 898/2010

%                             Judgment Delivered on: 31.03.2011


      PRAMOD KUMAR DIXIT              ..... Petitioner
                   Through: Mr. Utkarsh, Adv.

                   versus


      SEEMA DIXIT @ SANNO                ..... Respondent
                     Through: Mr. Shivcharan Garg, 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)

CM No.12304/2010

1. The petitioner/husband has filed the present petition under Article

227 of the Constitution of India. The petitioner is aggrieved by the

judgment of the trial court dated 24.04.2010 passed on an

application filed by the respondent/wife under Section 24 of the

Hindu Marriage Act, wherein the trial court has awarded `12,000/-

per month as maintenance to the respondent (wife) and two minor

children.

2. The necessary facts to be noticed for disposal of the present

petition are that marriage between the parties was solemnized on

20.05.1997. Out of their wedlock, a son and a daughter presently

aged about 13 years and 11 years were born. Owing to

matrimonial discord, parties have been residing separately.

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

has erred in awarding maintenance of `12,000/- for the respondent

and two minor children. Counsel for the petitioner submits that the

learned trial court has failed to take into consideration that the

petitioner is working in a private company and earns `6,000/- per

month only and he is not in a position to pay this amount to the

respondent. Further, the counsel submits that the trial court has

erroneously assessed the income of the petitioner to be `20,000/-

to `25,000/-, per month. It is next submitted that the respondent

is residing on the first floor of the premises which belong to the

petitioner along with the children and the petitioner is paying the

water and electricity charges for the premises. It is submitted that

in view of the fact that the petitioner is earning a meager sum of

`6,000/- the order is bad in law and is liable to be set aside.

4. It is submitted by counsel for the respondent that the petitioner has

concealed his true income. It is next submitted that in an attempt

to escape from paying maintenance to the respondent and two

minor children, the petitioner did not place any documents before

the trial court such as his salary slip, appointment letter from his

present employers and other supporting documents on record. The

counsel for the respondent further submits that the petitioner is

running a factory where he assembles radios and transistors and he

is financially well off. The counsel submits that the petitioner has

employed about 20 labours in the factory, to whom he is paying

wages. Further, besides the factory, the petitioner is also receiving

a rental income of `15,000/- from letting out the maruti van. It is

next submitted that an estimate of the status of the petitioner may

be drawn from the fact that the petitioner has subscribed to a

MTNL Landline (22133265) and two mobile phones (9873322088)

and (9711258642) for which he is paying a monthly bill of `2500/-.

The counsel further submits that the petitioner owns two

motorcycles and pays monthly electricity bill of `5,000/- for the

factory in addition to the other day to day expenses for running the

factory. It is next submitted that it is admitted by the petitioner

that he is repaying a loan advanced from ICICI Bank for starting

and running his factory for which he is paying a monthly

installment of `4,191/- for repayment of the loan to the Bank. In

view of the assets owned and admission of the petitioner of paying

off the loan, counsel for the respondent submits that it cannot be

believed that the petitioner is earning a meager sum of `6,000/-.

This contention of the respondent is vehemently opposed by the

counsel for the petitioner it is submitted that in order to repay the

loan the petitioner is working overtime at his company.

5. The counsel for the respondent submits that the petitioner had

concealed his PAN card, partnership deed of Dhoom Electronics,

details of ICICI Credit Card, Debit Card of SBI and bank statements,

which would show his conduct. It is further submitted that it was

only after the respondent placed copies of electricity and telephone

bills, PAN card and other documents that the petitioner submitted

that he wished to make certain clarifications with respect to his

income

6. I have heard the counsel for the parties and also carefully perused

documents placed on record and the order dated 24.04.2010

passed by learned trial court. While deciding the application filed

by the respondent, the trial court has taken into consideration

possession of mobile phones and one land line telephone,

electricity bills and mobile bill charges of the petitioner the fact

that petitioner has obtained financial assistance from ICICI Bank,

the fact that he is repaying the loan and paying installment of

`4191/- per month and also the fact that he has concealed his true

income. Further the trial court has also considered that the

petitioner has neither placed any appointment letter nor salary

certificate from his employer on record.

7. 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. ............... 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."

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 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 time and again 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.

10. 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".

11. Although there cannot be an exhaustive list of factors, which are to

be considered by the court 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.

12. These are some of the factors, which may be considered by any

court in guesstimating or gaining 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.

13. Applying the settled law and the factors detailed above to the facts

of this case, admittedly, the appellant is repaying a loan, obtained

for the purpose of starting of his own factory, from ICICI Bank and is

paying a monthly installment of `4191/-, per month, towards

repayment of same. It is highly improbable that the appellant

would be granted a loan from ICICI bank in case petitioner was

earning a mere sum of `6000/-, per month. It is even more

improbable that a person earning `6000/-, per month, would be in a

position to maintain two mobile phones, one land line and would

open various bank accounts and holds several credit and debit

cards. It is apparent from the conduct of the appellant and also

from perusal of the impugned order that the appellant has not

disclosed his true income. In view of the submissions made by the

respondent and documents placed on record in support of her

claim that the appellant is a man of means, I find the stand of the

appellant that he is earning a meager sum of `6000/-, per month,

to be highly improbable and unbelievable. The petitioner has also

not disclosed the name of the factory, details of his employees or

even the address where he is working at present. Accordingly, his

plea that he is earning a meager sum of `6,000/-, per month,

invokes no confidence. It cannot be expected that the respondent

who has no source of income can maintain her two school going

children for whom she has to pay tuition fee, transportation

charges, books and uniform, etc., besides incurring expenditure for

running the household. 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. Accordingly, taking into consideration the facts

of the case and the settled position of law, I find the trial court has

correctly applied the law to the facts of the present case. There is

no infirmity in the order, the petition is accordingly dismissed.

G.S. SISTANI, J.

March 31, 2011 ns