Sonal Gupta vs Vinayak Gupta
2012 Latest Caselaw 2115 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+              CM(M) 32/2010

%                                       Date of Decision: 28.03.2012

SONAL GUPTA                                        ..... Petitioner-wife
                            Through :   Mr. Harish Pandey, Adv.

                   versus

VINAYAK GUPTA                                  ..... Respondent-wife
                            Through :   Ms. Manali Singhal with
                                        Ms. Monica Singhal, Advs.

CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL

VEENA BIRBAL, J. (ORAL)

* CM(M) No. 32/2010

1. By way of this petition, petitioner-wife has challenged the

order dated 17th July, 2009 passed by the learned ADJ, Delhi in HMA

311/2007 whereby the application of the petitioner-wife under section

24 of the Hindu Marriage Act (hereinafter referred to as `the Act') has

been disposed of and a sum of Rs.6300/- per month has been awarded

to her as maintenance pendent lite.

2. Petitioner-wife has moved an application under section 24 of

the Act in a divorce petition filed by respondent-husband against her

u/s 13(1)(ia) of the Act seeking divorce on the ground of cruelty. In

the said application, petitioner-wife has alleged that respondent-

husband is earning Rs.2 lacs per month and apart from salary,

respondent-husband has income from various sources like shares,

dividends, interest from savings etc. Petitioner-wife has further

alleged that respondent-husband has various FDRs in his name and he

owns various movable and immovable properties including a flat at

Dwarka and also has a share in the joint family property at Kamla

Nagar, Delhi. It is further alleged that respondent-husband owns a

Ford Ikon car and is also having a good job in Merchant Navy. It is

further alleged that his father is a Doctor and mother is having a

boutique at Kamla Nagar. By way of the application, she has claimed

an amount of Rs.35000/- per month as maintenance pendente lite.

3. Respondent-husband has filed reply by contending therein that

he used to pay a sum of Rs.6300/- per month to the petitioner-wife

which she had refused to accept after receiving the notice of divorce

petition. Respondent-husband has denied that he ever earned a sum of

Rs.2 lacs per month, as is alleged. He has alleged that he had drawn

his last salary in the month of March, 2006 and thereafter, he has not

resumed his job on account of problems created by petitioner-wife.

Respondent-husband has further stated in his reply that he was jobless

since March, 2006 and he is dependent upon his parents. He has

denied having income from shares, dividend, interest on savings etc.

He has also denied that he owns any car and stated that it was in the

name of his mother. However, he had admitted that his father is a

Doctor and mother runs a small boutique at Kamla Nagar. He has

resigned from his job in Merchant Navy in 8th March, 2006.

Respondent-husband has also alleged that petitioner-wife has been

working as a teacher in her own Family School at Darya Ganj and she

draws a handsome salary. As per respondent-husband, she is not

entitled for maintenance.

4. After considering the submissions of the parties and considering

the material on record, the learned Addl. District Judge has held that in

her application, petitioner-wife has not stated anything about her

source of income, however, during the course of proceedings, on

being directed, she filed an affidavit dated 23 rd April, 2009 wherein

she has stated that she has an income of Rs.40,000/- per annum by

way of dividends from mutual funds, bank interests etc.

Learned ADJ further observed that petitioner-wife has

deliberately withheld the material information from the court and her

application was liable to be dismissed on that ground alone itself.

Ld.trial Judge further held that as the matter has been heard touching

the job and income of respondent-husband, the application is being

disposed of on merits.

5. After considering the salary certificate of respondent-husband,

learned ADJ observed that respondent-husband was not getting salary

of Rs.2 lacs per annum, as is alleged, and from the material on record

his income upto 28th March, 2006, was around Rs.90,000/- per month

and thereafter he was jobless. Nothing was placed by the petitioner-

wife that respondent-husband has any source of income after March,

2006. Accordingly, application was disposed of with the direction to

respondent-husband to pay to the petitioner-wife Rs.6300/- per month

which he was already paying to her from the date of the filing of the

said application. Aggrieved with the said order, present petition is

filed.

6. On the directions of this court dated 26 th February, 2010, both

the parties were directed to file their affidavits of assets as well as

income. Both the parties complied with the said direction and filed

their respective affidavits.

7. Petitioner-wife has contended that meager amount of

maintenance has been awarded whereas she is entitled for higher

amount of maintenance pendent lite. It is contended that as per the

affidavit of respondent-husband, he has got a new job and he has no

other liability, as such, she is entitled for maintenance pendente lite @

Rs.25000/- per month.

8. On the other hand, learned counsel for the respondent-husband

has argued that respondent-husband has got a new job from February,

2011 i.e., after the disposal of application u/s 24 of the Act. Prior to

that he was unemployed. His salary certificate is also placed on

record, as per which, his gross salary is Rs.1,20,000/- and after

deductions of PF:780/-, TDS: 20,000/-,. The net salary is Rs.99,220/-

per month. Learned counsel for the respondent-husband has pointed

out that respondent jointly hold 10 shares of Indian company with her

mother . He has got three F.Ds of Rs.25000/- each in State Bank of

India. Respondent-husband had taken a personal loan of Rs.4 lacs

from Citibank for which he is paying EMI of Rs.9516/- per month.

No other source of income of respondent-husband has been pointed

out by the petitioner-wife.

9. Respondent-husband has also stated that he is living in Chennai

in a rented accommodation and has to pay rent and is incurring

expenses on food etc, details of which are given in para 5 of the

affidavit. Nothing has been placed to substantiate the same. It is also

stated that he has liability towards his parents and one sister.

10. It has also been pointed out by learned counsel that divorce

petition filed by respondent-husband has been dismissed vide orders

dated 28th February, 2012 for not leading any evidence in the said

case.

11. Perusal of affidavit dated 8th April, 2010 of petitioner-wife

shows that she is not having any income or she is engaged in any trade

or business and her income is Rs.40000/- from dividend, mutual funds

and bank interest. She also does not have any house. She has also

given details of joint holding of mutual fund etc along with her father.

12. Learned counsel for the petitioner-wife has stated that parents of

respondent-husband are earning and he does not have any liability

towards them. However, learned counsel for the respondent-husband

has pointed out that both his parents are over 70 years and for keeping

them busy, they do little work. No material is placed on record by

petitioner-wife to show that parents of respondent are earning

handsome amount. Considering the age of parents, it cannot be said

that respondent-husband has no responsibility towards them. From the

bank statements and other statements annexed with affidavit of

respondent-husband, nothing has been pointed out by learned counsel

for petitioner-wife to substantiate the allegations of alleged income of

respondent-husband. There is nothing on record to show that

respondent-husband owns any movable/immovable properties as is

alleged.

13. Considering the material on record, no illegality is seen in the

impugned order by which maintenance @ of Rs.6300/- per month has

been awarded to the appellant from the date of application. However,

after the disposal of the said application, respondent-husband has got

new employment from 14th February, 2011. Divorce petition filed by

him has been dismissed on 28th February, 2012. In these

circumstances, petitioner-wife is entitled for grant of maintenance @

Rs.6300/- per month from the date of application till 13.2.2011. From

14th February, 2011 till the date of dismissal of divorce petition i.e 28 th

February, 2012, she is granted maintenance pendente @ Rs.17000/-

per month. Petitioner-wife is also granted litigation expenses of Rs.

11,000/-.

With the above direction, petition stands disposed of

accordingly.

CM No. 405/2010 (stay)

In view of the order on the main petition, no further orders are

required on this application. The same stands disposed of

accordingly.

VEENA BIRBAL, J MARCH 28, 2012 ssb