Narinder Pal Kaur Chawla vs Manjit Singh Chawla
2011 Latest Caselaw 2880 Del

60
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     RFA 511/2009
NARINDER PAL KAUR CHAWLA                 ..... Appellant
               Through: Appellant in person.
                    versus
MANJIT SINGH CHAWLA                      ..... Respondent
               Through:         Ms.Prachi Vasisht and Mr.Achint
                                Ranjan Singh, Advocates
      CORAM:
      HON'BLE MR. JUSTICE G.S.SISTANI
                  ORDER

%                  30.05.2011
CM.No.6969/2009

1. Appellant has filed the present appeal assailing the judgment and

decree dated 19.4.2008 passed by learned trial court on a petition

filed by the appellant for recovery of maintenance under Sections

18 and 20 of Hindu Adoption and Maintenance Act and for right to

residence. Various interim applications have been filed by the

appellant during the pendency of the appeal seeking various reliefs

against the respondent husband, which are being disposed of by

this order.

2. Admittedly, appellant is in possession of 2nd floor of the property

bearing No.A-447, Defence Colony, New Delhi, (hereinafter referred

to as "the suit property"). By virtue of the order dated 19.4.2008,

the trial court has awarded maintenance to the appellant @

Rs.4,000/- per month from the date of filing of the suit till 20 th

September, 2007. The trial court has also directed that post 20th

September, 2007 the appellant be also entitled to maintenance @

Rs.7,000/- per month till such time she continues to remain in

possession of the second floor of the property and in case the

appellant leaves or is made to move out of the property by an

order of the court or otherwise, she would be entitled to

maintenance @ Rs.12,000/- per month. The appellant has

challenged this amount as being insufficient. The appeal stands

admitted.

3. Appellant, who appears in person, submits that the marriage

between the parties was solemnized on 11.12.1977 according to

Sikh rites and ceremonies at Jullundur. The parties after their

marriage resided at the suit property. Subsequently, the appellant

learnt that the respondent was already married to one Ms. Manjit

Kaur and the divorce proceedings were pending between the

respondent (husband) and his former wife. It is next submitted by

the appellant that the parties separated in the year 1991. It is

further submitted by the appellant that respondent belongs to a

well-to-do family and was working with Oriental bank of Commerce

and it was only in the year 2003 after the marital discord that the

respondent took voluntary retirement. Appellant also submits that

respondent suffered an injury in 1984 riots due to which the

respondent is suffering from epilepsy. Appellant further submits

that the mother and sister of the respondent have taken advantage

of the illness of the respondent and have usurped the family

properties. It is next submitted by the appellant that the

respondent‟s sister has purportedly sold the property only with the

intention to deny legitimate maintenance due to the appellant and

has further misappropriated the funds received out of the sale

proceedings of the said property.

4. Counsel for the respondent submits that respondent is epileptic

and it is due to his illness he is not able to work and secure an

employment. Counsel further submits that respondent is being

maintained by his old and aged mother and married sister. Counsel

next submits that it is the mother and the sister of the respondent

who are providing for the medical aid and other day-to-day needs

of the respondent.

5. Various interim applications have been filed by the appellant and

the Objector namely, Sethia builders, who is stated to have

purchased the property. The appellant filed an application before

the High Court seeking leave to sue as an Indigent Person. The

High Court vide order dated 05.01.2001, on the basis of an enquiry

being conducted, observed that appellant in the instant case is an

indigent person and accordingly, the application of the appellant to

contest the appeal as an indigent person was allowed.

6. The present application has been filed by the

appellant seeking directions to restrain the Objector, namely, M/s

Sethia Builders from taking possession of the property which was

purported to be sold during the pendency of the execution

proceedings initiated by the appellant to recover the arrears of

Rs.5.5 Lacs (approximately) as maintenance due from the

respondent. Vide order dated 19.04.2009 passed by the trial court

first floor of the property was sealed to safeguard the interest of

the appellant. Admittedly, by the subsequent order dated

06.06.2009 Additional District Judge passed an order by which the

Objector was directed to furnish a bank guarantee in the sum of

Rs.5,50,000/- being the approximate value of the arrears of decree

holder (appellant herein). The bank guarantee provided by Punjab

& Sind Bank bearing No.3027, which is stated to be alive, was

accepted by the trial court and the first floor of the property stands

de-sealed. Admittedly the appellant herein continues to remain in

possession of the second floor of the property, although the

appellant submits that she is also in possession of the first floor of

the property. Learned counsel for the respondent disputes the

same. The appellant in the course of the arguments submitted that

sale of the property is a sham transaction and only to deny

legitimate maintenance due to her. The appellant further submits

respondent could not have sold the property as per the Will of her

late father-in-law, who had categorically stated that the property

cannot be sold. It is also not in dispute that the appellant has filed a

separate suit for appropriate relief which is pending before the

original side of the Court to protect her rights.

7. Since the present application has been made by the appellant prior

to passing of the order dated 6th June, 2009, passed by the

Additional District Judge, by which the first floor of the property

stands desealed upon the builder furnishing a bank guarantee in

the sum of Rs.5,50,000/-, which order has not been assailed by the

appellant herein and has accordingly attained finality and also due

to the pendency of the civil suit no further orders are required to be

passed in this application and the same is accordingly dismissed.

CM.Nos.12699-12700/2009

8. By the present applications, applicant (appellant herein) has prayed

that respondent be proceeded ex parte, as the respondent has

failed to submit his reply within the time allowed. Although there is

no procedure for filing reply in the Regular First Appeal, however,

the reply of the respondent so filed may be looked into as far as it

relates to material which is already part of the record. Even

otherwise, at the time of hearing of the Regular First Appeal only

the trial court record is to be considered. Accordingly, the

application is dismissed.

CM.No.12983/2009

9. This is an application under Order 1 Rule 10 Sub-Rule 2 CPC filed on

behalf of Objector, Sethia Builders, for being impleaded as a party.

As none is present to press this application, the same is

accordingly, dismissed.

CM.No.12984/2009

10. Application stands dismissed as not pressed.

CM.No.12985/2009

11. Appellant does not wish to press this application and the same is

accordingly dismissed as not pressed.

CM.No.535/2010, CM.No.4420/2010, CM.No.8623/2010, CM.No.20673-74/2010

12. Repeated applications have been filed by the appellant seeking

grant of maintenance during the pendency of the appeal.

Appellant, who appears, in person, submits that there is some

ambiguity in the operative portion of the judgment as it is stated

that maintenance is to be granted at different rates from the date

of filing of the application and the order shall remain operative till

such time as the appellant is under law entitled to receive.

13. It is not in dispute that appellant has already filed an execution

petition, which is pending before the trial court. Appellant has

vehemently prayed that since she has no source of livelihood and is

solely dependent on Delhi Sikh Gurudwara Prabandhak Committee

for her maintenance and upkeep and this court should direct the

respondent to pay maintenance during the pendency of this

appeal.

14. By the present applications, the appellant claims interim maintenance @

Rs.7,000/-, per month, during the pendency of the appeal. Reply to the

application (CM.No.535/2010) has not been filed. The right of the

appellant stands protected by the judgment dated 19.04.2008 passed by

learned trial court, by virtue of which, the trial court has awarded

maintenance to the appellant @ Rs.4,000/- per month from the date of

filing of the suit till 20th September, 2007. The trial court has also directed

that post 20th September, 2007 the appellant be also entitled to

maintenance @ Rs.7,000/- per month till such time she continues to

remain in possession of the second floor of the property and in case the

appellant leaves or is made to move out of the property by an order of

the court or otherwise, she would be entitled to maintenance @

Rs.12,000/- per month.

15. The appellant submits that even after passing of the impugned

judgment, the respondent has failed to provide her maintenance

and her entire expenses of food and clothing are being borne by

Delhi Sikh Gurudwara Prabandhak Committee. The appellant has

placed reliance on the statement made by her on 26th November,

2009, at the time of filing of the application seeking leave to

contest the appeal as an indigent person. The appellant also

submits that the statement made by her was duly verified and it

was only after verification the Joint Registrar was satisfied that she

has no source of any income was she allowed to contest the appeal

as an indigent person. Appellant has also drawn the attention of the

court to the report dated 26th November, 2009, of the Joint

Registrar, Delhi High Court by which he has come to a categorical

finding that appellant has no means to pay the Court fee.

16. The appellant further submits that appellant is living a life of

extreme deprivation and poverty while the respondent is living a

life of comfort and luxury. Appellant further submits that

respondent has only paid a small part of the maintenance awarded.

Appellant also submits that respondent has scant regard to the

judgment and decree passed by learned trial court and the

respondent is playing hide and seek before the executing court.

Appellant next submits that respondent does not suffer from any

permanent disability and in any case the respondent belongs to a

well-to-do family and has been deriving rental income from the

ground floor of the property. Appellant submits that it is only to

deny legitimate maintenance due to the appellant that

respondent‟s family is showing him to be unwell and incapable of

earning a living.

17. It is contended by appellant that besides receiving rental income

from the property the appellant also took voluntary retirement in

the year 2003 and in lieu thereof he received a large amount from

the bank where he was employed. However, the respondent made

a statement on 26.5.2011 in Court that in the year 2002 he

received an amount of about Rs.5.00 to Rs.6.00 lakhs from the

Bank at the time of his voluntary retirement.

18. Appellant submits that her right of residence on the second floor of

the property was protected by the Supreme Court of India in a

proceedings initiated by her under Sections 18 and 20 of Hindu

Adoption and Maintenance Act. The appellant further submits that

her right to interim maintenance was decided by the Hon‟ble

Supreme Court vide order dated 21.04.2004 wherein the Supreme

Court observed here asunder:

"For the purpose of fixing appropriate amount of interim maintenance, we may assume that the financial position of the husband is such that he can easily pay Rs. 1500 per month as interim maintenance without disturbing the right of separate residence provided to the wife at the second floor of the husbands‟ premises".

19. Appellant submits that despite a direction given by the Supreme

Court to the respondent not to disturb the right of possession of the

appellant, the respondent, in active connivance with his mother

and sister, has purportedly sold the valuable property situated at

Defence colony for pittance. Appellant further submits that

respondent and his family are enjoying the money received out of

the sale of the said property. It is also submitted by the appellant

that the mother of the respondent and respondent continue to

enjoy the fruits of the sale proceeds while the applicant is on the

verge of starvation. The appellant has also strongly urged before

this court that she has right to live in dignity and maintain herself.

It is submitted by the appellant that while the respondent is living a

life of luxury and comfort, the appellant is begging and is

dependent on charity and alms. She further submits that she is

completely at the mercy of Delhi Sikh Gurudwara Prabandhak

Committee. The appellant submits that respondent and his family

are receiving rental income from letting out the ground floor of the

property. This fact has been disputed by counsel for the respondent

who submits that the rent if any is being received by the

subsequent purchaser.

20. Counsel for the respondent has refuted all the submissions of the

appellant made during the course of the arguments. Learned

counsel for the respondent submits that after selling the property,

the respondent‟s family invested the sale proceeds received in

another immovable property in Lajpat Nagar, where the respondent

and his mother are presently residing. Counsel further submits that

respondent had taken voluntary retirement in the year 2003 and

the amount received by him has been used for his medical

expenses as he is suffering from „epilepsy‟. Counsel next submits

that due to his illness respondent suffers from a permanent

disability and he is unable to carry out any other work. It is further

submitted that respondent is solely dependent on his married

sister, who is providing him with food, clothing and medicines.

Counsel also submits that respondent has no source of livelihood

and is, thus, unable to pay any maintenance to the appellant, as he

is living at the mercy of his married sister.

21. I have heard the appellant, who appears in person, and counsel for

the respondent and given my thoughtful consideration to the

matter. In the instant applications, appellant seeks a direction that

respondent should be directed to disburse interim maintenance to

her till the final adjudication of the appeal. The submission of the

counsel for the respondent that respondent is a pauper and has no

means to pay aspires no confidence especially in view of the fact

that counsel for the respondent has not been able to render any

reasonable explanation about the fact that as to why the property

located at a posh area of Defence Colony was sold or as to how the

disease of the respondent hampered the respondent securing

another employment and the details of the amount received upon

sale of the Defence Colony property. There is no explanation or

details with regard to the price at which the Defence Colony

property was sold and the price at which the flat at Lajpat Nagar

was purchased.

22. 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.

23. 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.

24. The respondent appeared in court on 26.05.2011 and made a

statement that he has no source of livelihood and he is completely

dependent upon his mother and married sister for his basic day-to-

day needs. I find the statement to be unrealistic and unreliable. In

the Indian set up, it is not possible that any brother would live on

the maintenance to be provided by a married sister especially

when the married sister is not working herself and is also

dependent on her husband and in-laws. During the course of

hearing of the applications, it has been simply stated by counsel for

the respondent that respondent is epileptic, however, no

symptoms, or other traces of his illness have been produced to

illustrate as to how the illness of the respondent disrupted the day-

to-day activities of the respondent.

25. The Mosby‟s Medical, Nursing, & Allied Health Dictionary, Fourth

Edition defines „epilepsy‟ as under:

"epilepsy /ep‟lep‟ se / [Gk, epilepsia, seizure], a group of neurologic disorders characterized by recurrent episodes of convulsive seizures, sensory disturbances, abnormal behavior, loss of consciousness, or all of these. Common to all types of epilepsy is an uncontrolled electric discharge from the nerve cells of the cerebral cortex. Although most epilepsy is of unknown cause, it may sometimes be associated with cerebral trauma, intracranial infection, brain tumor, vascular disturbances, intoxication, or chemical imbalance."

26. The 2004 LANGE CURRENT Medical Diagnosis & Treatment

International Edition defines „epilepsy‟ as under:

"The term epilepsy denotes any disorder characterized by recurrent seizures. A seizure is a transient disturbance of cerebral function due to an abnormal paroxysmal neuronal discharge in the brain."

27. The disease is found to be curable in some cases and can be

controlled by way of medicines. There is nothing on record to show

that respondent is suffering from permanent disability. No medical

evidence has been pointed out to show that on account of this

disease the petitioner is unable to carry out any kind of activities.

Though it has been submitted by the respondent‟s counsel and

respondent‟s daughter that respondent is unable to take up any

employment and he has no finances. While it is understandable

that a person suffering from epilepsy may suffer from time to time

seizures, fits due to which he may not be in a position to carry out

various activities including strenuous work, driving or work at a

machine, work at a high-voltage power line or at extreme heights,

there is nothing on record to suggest that respondent is suffering

from a continuous illness due to which he is not able to carry out

jobs even where no physical labour is involved. The entire effort

seems to be made to avoid paying single penny of maintenance to

the wife. The approach of the respondent is unacceptable. The plea

of the respondent that he is being looked after by his married sister

appears to be even more improbable especially when the married

sister is not working. In case the respondent did not want to avoid

paying maintenance he can easily seek employment in the large

business and his sister could easily provide the respondent with a

job. Further, there is also no reasonable explanation with regard to

the utilization or quantum of sale proceeds received on the alleged

sale of the property of Defense colony. This court can take judicial

notice of the fact that prices of the property situated at Defense

Colony are much higher than a flat which is stated to have been

purchased at Lajpat Nagar. Accordingly the plea of the respondent

that entire sale proceeds that were received from the sale of

property situated at Defence Colony were used for the purchase of

a flat at Lajpat Nagar inspires no confidence.

28. 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.

Status and the lifestyle of the parties are an important

consideration while deciding an application under Section 24 of the

Hindu Marriage Act.

29. I find no force in the submission of counsel for the respondent who

states that the respondent has no means to maintain himself or his

wife. Accordingly, the present applications are allowed.

Respondent is directed to pay maintenance to the appellant @

Rs.7,000/- per month, as awarded by the trial court, even during

the pendency of the appeal and as per the judgment and decree.

30. It is hoped and expected that trial court would hear the execution

petition filed by the appellant expeditiously and in accordance with

law, especially, in view of the fact that respondent has not paid the

arrears of maintenance to the appellant.

31. In view of above directions, applications are disposed of.

CM.No.6030/2010

32. Application stands dismissed as not pressed, with liberty, as prayed

for, to make a similar application, if so advised in the civil suit,

which is already pending in the original side.

CM.No.8624/2010

33. This is an application filed by the appellant for early hearing of the

interim application.

34. Application stands dismissed as not pressed.

CM.No.3380/2010

35. Appellant does not wish to press present application, at this stage,

with liberty to bring to the notice of the executing court, the arrears

and the decreetal amount, which are due and payable to her as of

today.

36. Application stands dismissed as not pressed, with liberty as prayed

for.

CM.No.3381/2011

37. By present application, applicant has prayed that tenant of the

ground floor of the property bearing No.447, Defence Colony, New

Delhi, be directed to hand over possession of the tenanted

premises to the court. Further it is orally prayed by the appellant

that the tenant be directed not to sub-let the property (ground floor

of the premises bearing No.447, Defence Colony, New Delhi).

38. Since the appellant has already filed a suit on the original side of

this court with respect to challenging the sale of the property

bearing No.447, Defence Colony, New Delhi, the relief claimed in

this application, cannot be granted. Accordingly, application stands

dismissed. However liberty, as prayed for, is granted to the

appellant, to claim this relief in appropriate proceedings.

CM.No.6000/2011

39. Appellant wishes to withdraw this application, with liberty to file an

application in the appropriate proceedings.

40. Accordingly, application stands dismissed as withdrawn, with

liberty to file an application in the appropriate proceedings, if so

advised.

CM.No.6001/2011

41. This is an application filed by the appellant, bringing to the notice

of the Court the contradictory statements being made by the

respondent herein.

42. Application stands dismissed. However, liberty, as prayed, is

granted to the appellant, to bring to the notice of this court the

contradictory statements, if any, at the time of hearing of the

appeal.

CM.No.6002/2011

43. The prayer made in the present application will be considered at

the time of hearing of the appeal. Accordingly, application stands

dismissed.

CM.No.6003/2011

44. This is an application filed by the appellant under Order 14 (i) (e) of

Delhi Rent Control Act.

45. As the application is not maintainable under the provisions of Delhi

Rent Control Act, the application is accordingly dismissed.

46. Copy of this order be given DASTI.

G.S. SISTANI, J.

MAY 30, 2011 'ssn‟