Pooja vs Leeladhar
2012 Latest Caselaw 2297 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI


+      MAT.APP. 25/2011

%                                            Date of Decision: 10.04.2012


POOJA                                                       ..... Appellant
                            Through :   Mr. S.C. Gupta, Advocate

                   versus

LEELADHAR                                                  ..... Respondent
                            Through :   Mr. Abhinav Bajaj, Advocate

CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL


VEENA BIRBAL, J. (Oral)

*

CM 7266/2011 (u/s 24 HMA)

1. Present is an application under Section 24 of Hindu Marriage Act (hereinafter referred to as the Act) filed by appellant/wife for grant of maintenance pendente lite and litigation expenses in the present appeal wherein the appellant/wife has challenged the decree of divorce dated 25.02.2011 wherein the petition of respondent/husband is allowed and the marriage between the parties has been dissolved on the ground of cruelty.

2. The appellant-wife has alleged that the respondent-husband is doing the business of telecommunications/selling mobile accessories and providing new telephone connections and is also doing repair of mobile phones, radio

sets and stereos etc. He is also running a STD booth and 2-3 employees have been employed by him and his brother and has an income of Rs.30,000- 40,000 per month. He has no liability except to maintain the appellant/wife. It is stated that the respondent-husband is also having ancestral agricultural land wherein the crops are being grown and the income from the said produce is above Rs. 6 lakhs per annum. He is living in his own house bearing no. 422, Pana Dhaniwara, Bhawana, Delhi in a joint family and has got family income and the total income of the family is Rs.1 lakh per month. It is alleged that the appellant-wife is a graduate but she has not got any job. She has got no source of income. She had received Rs. 1 lakh in the court as earlier the parties had arrived at a settlement wherein the respondent had agreed to pay Rs.6.25 lakhs to her. The balance amount was not paid due to which matter was not settled.

3. It is further stated that in the trial court where the divorce petition was instituted by the respondent/husband against her, she was granted maintenance of Rs. 1500/- per month. The amount of Rs. 1 lakh has already been spent by her in the litigation and other miscellaneous expenses. The appellant is not having sufficient means to support herself. She is dependent on her parents for her day to day requirements. She has also to bear the travelling expenses for coming to court. By way of this application she has prayed Rs.25,000/- per month towards maintenance pendente lite and Rs.40,000/- as litigation expenses. The application is supported by her affidavit.

4. The respondent-husband has opposed the application by contending that the appellant is a graduate and is able body person and can maintain

herself very well. In order to get maintenance from the respondent, she is not working deliberately. According to him the appellant/wife is earning through tuitions and is also working on part time in a play school and her earning is above Rs.5000/- per month. The respondent has alleged that he is unemployed and earlier he used to work in the shop of telecommunication owned by his brother who was paying him Rs.1500/- per month for his day to day needs. His family has disowned him, as such, he is not having any source of income. The appellant has alleged that he had earlier settled the matter with the appellant-wife in the bail proceedings in FIR no. 127/2008 under Section 498/406/34 IPC for a sum of Rs.6,25,000/-. Out of the said amount, he had already paid Rs. 1 lakh to her thereafter, the wife had backed out from the settlement as such her conduct does not entitle her for any maintenance. He has denied that he is getting income of Rs.30,000-40,000/- per month, as is alleged. He has also denied having any share in the ancestral agricultural land, as is alleged. He has also denied that there is income of Rs. 6 lakhs from the agricultural produce. It is stated that the father of the respondent has a small share of about 3 acres in the said ancestral property. The respondent is not maintaining any vehicle nor he is an income tax payee.

5. The appellant-wife has filed rejoinder denying the allegations about her income. She has categorically stated that she has no source of income and is unemployed.

6. I have heard the counsel for parties and perused the material on record.

7. The appellant-wife has categorically stated that she is unemployed and has no source of income. She is not working in any school. Her application is supported with the affidavit of appellant/wife. On the other hand, the stand of the respondent is that she is giving tuitions and is also part time teaching in a play school. The respondent has made vague allegations. He has not given the name of the play school where the wife is allegedly working. Nothing has been placed on record to substantiate that the appellant-wife is having independent source of income. Even in the divorce proceedings before the learned ADJ, an application under Section 24 of the Act was filed by wife. In reply to the said application, respondent/husband has made same allegation of alleged earnings of wife which was disbelieved by the learned trial court and the said order was not challenged by the respondent. Even before this court nothing has been placed on record by respondent to show that wife has any independent source of income. The allegations made about the alleged earning of wife are rejected.

8. The appellant-wife has alleged that the respondent is doing business of telecommunication and is selling mobile accessories and new telephone connections and is also doing repair of mobile phones, radio sets and stereos. He is also running a STD booth and 2-3 employees have been employed by him and his brother and has income of Rs.30,000-40,000 per month. The stand of the respondent is that he is only helping his brother who is paying him Rs.1500/- per month. The respondent has placed on record the rent agreement showing that the premises where the said business is being done is taken by his brother on rent and he has also placed on record equipment installation bill which is in the name of his brother issued by ICICI. Nothing has been placed on record by the appellant/wife to substantiate that the

alleged business is in the name of respondent/husband. It may also be noticed that nothing is also placed on record by respondent/husband to show that his brother was paying him salary of Rs.1500/- per month. There is also nothing on record that presently he is not working with his brother, as is alleged. The respondent/husband has taken such a stand so that appellant/wife's claim for maintenance pendente lite is defeated.

9. It is not believable that the respondent is unemployed as is alleged by him. The respondent is an able body person. Even the minimum wages these days are not less than Rs.6000/- per month. The earning of the husband can safely be taken as Rs.6000/- per month. The appellant-wife has also alleged that the income of the family is also available to the husband. However, nothing has been placed on record to substantiate the same. The allegations made are vague. There is also nothing on record to show that there is income to the respondent/husband from agricultural land. The stand of the respondent is that his father has a small share of about 3 acres in the said ancestral property and there is no income from the said land. Nothing is placed on record by the appellant/wife to substantiate the other alleged earnings of the respondent/husband.

10. The counsel for respondent has also pointed out that after the lapse of five months from the grant of decree of divorce, the respondent has re- married and he has also the liability to maintain his second wife. In the order dated 14.07.2011 of this court it is recorded that the respondent has submitted that the stay granted by this court vide order dated 08.04.2011 was not communicated to him before 05.07.2011 i.e. date of re-marriage and it

has also been mentioned in the said order that the validity of re-marriage shall be seen while hearing the final arguments.

11. Considering the totality of facts and circumstance and also considering that the appellant-wife has also got Rs.1 lakh as part payment towards part payment of settlement, she is granted Rs.1500 per month towards maintenance pendente lite from the date of application i.e. with effect from 05.04.2011. The appellant is also granted litigation expenses of Rs. 5500/-.

The application stands disposed of.

MAT.APP. 25/2011 & CM 7265/2011 (stay)

List for admission denial and payment of arrears of maintenance on 11.09.2012.

VEENA BIRBAL, J APRIL 10, 2012/srb srb