Bindu Talwar vs Rakesh Talwar
2013 Latest Caselaw 3536 Del

*                        IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                  I.A. Nos. 9658/2011, 9659/2011
                                         in CS(OS) 1468/2011

+                                               Date of Decision: 12th August, 2013


#       MRS. BINDU TALWAR                                           .....Plaintiff
                                          Through: Mr. Y.P. Narula, Sr. Advocate
                                                   with Mr. Aniruddh Chaudhary
                                                   and    Mr.    Rajat      Kumar,
                                                   Advocates

                                              Versus
$       MR. RAKESH TALWAR                                           ..... Defendant
                                          Through: Mr. Aman Lekhi, Sr. Advocate
                                                   with Mr. Jayant K. Mehta and
                                                   Mr. Sukant Vikram, Advocates
        CORAM:
*       HON'BLE MR. JUSTICE P.K.BHASIN

                                                     ORDER

P.K.BHASIN, J:

The plaintiff after having spent almost three decades with the defendant as his wife and after solemnizing the marriage of their only child out of the wedlock has approached this Court by filing the present suit against her husband for maintenance, residence etc. under the Hindu Adoptions and Maintenance Act, 1956 on the allegations that she has been treated with extreme cruelty by him by establishing illicit

relationship with her sister's daughter-in-law and not paying not her any money to maintain herself and not only that she is being sought to be evicted from her matrimonial home/shared household where she had been living with him and their son for over three decades. The plaintiff has also invoked the provisions of The Protection of Women from Domestic Violation Act, 2005.

2. In the plaint the plaintiff-wife has claimed many reliefs including that of maintenance and residence.

3. Along with the plaint the plaintiff had also filed two applications for some interim directions to the defendant (being I.A.Nos.9658/2011 & 9659/2011). In I.A. No. 9659/2011 the following interim reliefs were claimed by the plaintiff:-

a) Direct the defendant to pay interim monthly maintenance of Rs. 1,25,000/- .

b) Direct the defendant to continue to defray the electricity, water, gas, house tax and club bills and other maintenance expenditures that he may be presently incurring, until the disposal of the suit.

c) Grant temporary injunction restraining the defendant, his agents, assigns, servants or subordinates, from interfering with the plaintiff's peaceful possession and enjoyment of B-370, New Frineds Colony, New Delhi-110065, including restraining the defendant from:

i) In any manner interfering with the ingress into and egress out of the premises B-370, New Friends Colony. New Delhi-10065 and of any other person seeking such access under her

ii) In any manner whatsoever interfering with and/or disturbing the plaintiff's peaceful possession, occupation and/or use including use of water and electricity connections in the House B-370, New Friends Colony, New Delhi-110065

iii) In any manner interfering with and/or changing the locks of the premises B-370, New Friends Colony, New Delhi-110065

iv) In any manner interfering with the personal belongings of the plaintiff at the premises B-370, New Friends Colony, New Delhi-110065 and correspondence (both postal and courier) of the plaintiff; until disposal of the suit filed by the plaintiff/applicant.

d) Grant temporary injunction restraining the defendant from committing any acts of Domestic Violence against the plaintiff

e) Direct the defendant to remove himself and his personal effects from the bedroom of the parties at premises B-370, New Friends Colony, New Delhi

f) Pass ad interim ex parte orders in terms of prayers a) and e) above and confirm the same after notice to the defendant/non applicant.

g) Pass any further orders that this Hon'ble Court may deem fit.

4. In I.A.No.9658 of 2011 filed under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure(C.P.C.) the plaintiff sought the following reliefs:-

"a) pass an order of temporary injunction restraining the defendant his agents, assigns, servants or subordinates from selling, or in any manner alienating, or creating any encumbrances, or third party interest of whatsoever nature, in any moveable or immovable properties and assets, including but not limited to the property B-370 New Friends Colony, New Delhi, New Delhi 110065 and DLF Park Place in zone 11 and 12, Gurgaon.

b) pass an order of temporary injunction restraining the defendant his agents, assigns, servants or subordinates from selling, or in any manner alienating, or creating any encumbrances, or third party interests of whatsoever nature, in the paintings itermized in para 4 above and the assets detailed in paragraphs 9 and 10 above.

c) Pass ad interim ex-parte orders in terms of prayers a) and b) above and confirm the same after notice to the defendant/non-applicant

d) pass any further orders that this Hon'ble Court may deem fit."

5. The relevant facts pleaded in the plaint leading to the institution of the present suit are that the parties had been living together alongwith their son, who recently got married on 7th, February, 2010, in house no. B-370, New Friends Colony, New Delhi, which stands registered in the name of the defendant-husband, since the year 1982. The parties led normal married life till the year 2008 after which the relationship between them became strained as the defendant was found to be having an extra marital affair with the daughter-in-law of the plaintiff's sister. Because of that illicit relationship getting developed the defendant started totally ignoring the plaintiff and also stopped paying her any money to her with which she could maintain herself she herself being a housewife only has no income of her own while the defendant was earning between 4-5 lacs a month.

6. The defendant-husband is contesting the suit claim as well the applications for interim reliefs. His defences, inter alia, are that he has never refused to maintain his wife and has always been trying to keep her happy by somehow or the other providing her more than sufficient money so that she could lead a luxurious life which only was her desire. As is usual in such like cases between husband and wife, he has also, while refuting the allegation of that he is having illicit relationship with the plaintiff's sister's daughter-in-law, levelled allegations of inchastity

against his wife. He has pleaded in his written statement that his wife is, in fact, a characterless woman who has been inviting other men to her house during late night hours.

7. As noticed already, the plaintiff is claiming interim maintenance of Rs.1,25,000/- p.m. The break-up of this figure has been given by her in para no. 11 of I.A. No.9659/2011 and is as under:

a. Food and Monthly Provisions, including for house ` 35,000/-

        cleaning, washing clothes etc.
     b. Clothing and Accessories                         ` 10,000/-
     c.    Medical Care and Medical Insurance              ` 2500/-
     d. Driver's Salary                                    ` 7,500/-

e. Salaries for other domestic help including bearer, ` 15,000/-

        gardener and cleaner
     f. Entertainment                                      ` 15,000/-
     g. Petrol for car and generator                       ` 17,000/-
     h. Travel (Holidays)                                  ` 14,000/-
     i.    Mobile Phone Bills                              ` 1500/-
     j.    Maintenance of house, generator, car etc. and ` 7,500/-
           miscellaneous expenses
           Total Monthly maintenance                     ` 1,25,000/-

8. The plaintiff has claimed that they have been enjoying throughout a lavish lifestyle and have been spending around three lacs of rupees every month on living. They have been frequently going to U.S.A., Europe etc. also for holidaying in style by staying in the best hotels and eating at the most expensive restaurants. She has claimed that her husband is

rolling in money. He has crores of rupees in the form of fixed deposits in different banks and Bonds of National Highway Authority of India( NHAI).

She has also pleaded that though all these investments are in the joint names of the parties but the defendant has been treating that money as his exclusive money and the plaintiff was denied total access to those investments. He spends huge amount of money through various credit cards. He goes to clubs, gyms etc. She has further pleaded that his husband's richness is also reflected from the fact that many paintings of very famous painters like M.F. Hussain, value of which is also about ten crores of rupees, are his treasure. But despite being such a wealthy person he does not now give her any money after their relations got strained and all his wealth is now being showered upon the other lady who has entered into his life and that is evident from the fact that he has purchased a flat also in Gurgaon, priced at over a crore of rupees, jointly with that woman.

9. Regarding the relationship between the parties the defendant- husband has pleaded in his written statement that he does not have any extra marital involvement with any woman as was being claimed by his wife. He has pleaded in para no.3 of his written statement as under:-

"3. That the contents of para 3 are misconceived, based on falsehood hence denied. the same are a result of figment of imagination of a fertile brain with a view to malign the defendant. The defendant never admitted anything and he does not have any extra

marital involvement. The allegation is malicious, vexatious, distressing to the defendant and in poor taste. The fact of the matter is that the parties stopped having a normal relationship of husband and wife 25 years ago. It is submitted that the plaintiff, the defendant and their son lived in their present residence in New Friends Colony since the defendant bought the land and built the house from his own hard earned money in 1980. The plaintiff and the defendant never lived a normal life of a married couple ever since their son was about 5 or 6 years old. At that time one night at about 11.45 p.m, defendant went to sleep as he used to go to office at 8 am. He heard a noise and got up. He found the defendant not in the bedroom. He looked from the window and saw a man entering from the main gate. When he went out of the bedroom he did not find anyone in the lobby. He went to his son's bedroom and found his wife sitting there. She was looking white and guilty. He looked in the bathroom and found a man hiding behind the curtains. He tried to call the police but his wife touched his feet and begged him not to do so. He let the man go only for the sake of his little innocent son. Defendant has never even touched his wife after that and they have had no sexual relations since. Defendant for the sake of his son has lived in this marriage only for namesake and has suffered a lot for this and sacrificed everything undergoing unbelievable amount of mental agony and suffering. When plaintiff started taunting, abusing, threatening and vilifying the defendant and spreading all kinds of falsehoods and untruths, the defendant who had not told anyone about what had happened told his son Ridhish what had happened on that particular night. To the defendant's utter horror and shock his son told him that "Dad but I know this". When he was asked how, the son said "I saw some man in your bedroom on other nights" and "that is why I had such a twisted childhood". The defendant was so shocked that he went into depression. Defendant never again asked his wife where she went or what she did. For the sake of his son he tried to give his son as normal a life as possible, never taunting or ever taking any revenge but treated his wife as a friend so they could bring up their son and he would never suffer. He gave them the best life he could in spite of his wife giving him nothing but pain, mental suffering and agony during all these years. The defendant put up a brave front to the world but was completely a crushed man inside."

10. In the reply to the interim maintenance application the defendant has claimed that "There has been no default in obligations owed by the defendant towards the plaintiff and the former has maintained his family in reasonable comforts consistent with his position, status and financial standing. The plaintiff has neither been deprived nor denied anything which a woman in her position could legitimately make a claim to........It is solely because of the plaintiff's over-ambitious nature and her fetish to live a rich, extravagant life that led to problems in the married life of the parties............It is submitted that the plaintiff has always been provided with the best possible life. But to the utter disenchantment of the defendant she remained unfaithful to the defendant. The plaintiff and Defendant never had a normal life as husband and wife...........The plaintiff, without provocation shouts, abuses, threatens, screams, taunts talks loudly on phone, snores badly, bangs on the bed, and is making life a living hell for defendant".

11. Regarding the allegations of the plaintiff that he had stopped providing her money the defendant's stand in his written statement is that "That there has never been any default in discharge of obligation by the defendant to maintain his wife commensurate with the status he enjoys in the society in accordance with the financial means the defendant had and all her reasonable needs/wants has always been

taken care of in the best possible manner. More so, when the defendant husband has always tried to maintain healthy and congenial atmosphere in the household despite frequent violent bouts of the plaintiff." "The plaintiff, with a view to gain sympathy of this Hon'ble Court, has tried to create an impression, albeit false, as if the defendant is leading an amorous lifestyle ignoring his responsibilities towards the family and that the plaintiff has no money to maintain her." "It is specifically denied that the defendant ever ignored or failed to discharge any of his obligations as a faithful and loving husband during all these years of subsistence of marriage howsoever, turbulent these have been, but for the erratic, indifferent, unconcerned and argumentative behavior of the plaintiff towards the defendant and his son that the bliss was missing therefrom. The defendant has always maintained the plaintiff commensurate with his status and standing in the society and never defaulted in his obligations as a husband. The defendant specifically denies that he stopped paying monthly household expenses to the plaintiff or that he ever tried to take away any money for the simple reason that whatever monies were there, the same belonged to the defendant." It is further pleaded by him that "It is denied that the defendant ever maltreated the plaintiff in any manner or withdrew financial or other support from her. It is submitted that the defendant has always maintained the plaintiff in the best possible manner and he has remained very sensitive towards all

her needs." and also that "The defendant without fail, has always provided financial and other assistance to the plaintiff and did his best to the plaintiff and did his best to make her happy in accordance with the status of the parties despite recurrent obnoxious and unexplained behavior of the plaintiff. The apprehension of the plaintiff that she will be deprived a home or maintenance is unfounded as repeatedly submitted earlier". It is also pleaded that "It is submitted that the defendant has always and till date bearing all expenses of the household and even paying plaintiff's exorbitant club bills without protest.........The defendant has never abdicated his duty nor does he intend to discontinue discharging his obligation and maintain the plaintiff in reasonable comfort in accordance with his present means and resources."

12. From the foregoing narration of the stands of the parties it is clear that the relationship between them has taken a very ugly turn and both of them are holding each other to be responsible for the miseries in their married life now. At this stage, however, it cannot be said by the Court as to who really is at fault. That would require evidence from both sides and this position was not disputed either by Mr. Y.P. Narula, learned senior counsel for the plaintiff, nor by Mr. Aman Lekhi, learned senior counsel for the defendant.

13. As far as payment of money by the defendant-husband to the plaintiff-wife as interim maintenance is concerned, the defendant is claiming that he has never neglected to maintain his wife and it is his duty to maintain her since she has always been a house wife having no income of her own but the plaintiff is claiming to the contrary and so this factual dispute as to how and how much money is being paid to the plaintiff by the defendant also cannot be decided without evidence. However, on a prima facie view of the matter, in the facts and circumstances of the case this Court is of the opinion that even though the defendant-husband has claimed that he is maintaining his wife and has also admitted that it is his duty to maintain her despite her obnoxious behaviour the plea of the plaintiff-wife that he has actually stopped caring for her and maintaining her, prima facie, appears to be more probable considering the fact that relations between the parties are quite strained. So, some directions need to be given to the defendant to ensure that the plaintiff gets reasonable amount of money as interim maintenance.

14. How much interim maintenance should be directed to be paid to the plaintiff by her husband is the question which now is to be decided. In the plaint the plaintiff has pleaded that the defendant's monthly income is between four to five lacs of rupees. And this income, prima

facie, appears to be income on account of interest only from the investments to the tune of over five crores which admittedly have been made by the defendant in banks and NHAI. Though the plaintiff is claiming that all the investments made were in their joint names but she was not being permitted to have any access to those investments and the defendant is claiming that since the plaintiff never had any income from any source being a simple house wife the money invested in joint names actually belongs to him exclusively. In these circumstances the plaintiff is also seeking a declaration from this Court that she is a joint owner of all those investments. Whether or not all those investments can be said to be the exclusive property of the defendant shall also be decided after trial. Prima facie, the defendant's stand that all those investments to the tune of crores of rupees were made by him, though in the joint names, from his own money which he got after the closure of the family business, appears to be correct since even the plaintiff is claiming that she was always a good house wife only and was not earning any money from any source. The defendant has also claimed that earlier there was some family business but that was closed and he got his share of over four crores which wealth he further multiplied because of his own wisdom. What other income the defendant has neither been pleaded by the plaintiff nor by the defendant. It appears to be possible that the plaintiff may not be having any knowledge about other income

of her husband though it can be inferred that he has some other income also since in the reply to the application for ad interim injunction he has not denied the plaintiff's claim that paintings of the value of about ten crores are also with him. If the defendant had got something over four crores only from family business funds after its closure then how could he have the treasure of expensive paintings worth ten crores of rupees unless he has income from other sources. Prima facie, the defendant is not coming out with true state of his financial affairs.

15. So, this Court has to fix the quantum of interim maintenance on the basis of the investments allegedly made by the defendant from his own money and which investments are admittedly to the tune of over fifteen crores. Besides those investments the defendant also owns a property in New Friends Colony, present day market value of which would not be less than twenty crores. In view of this undisputed wealth of the defendant this Court is of the view that the prayer of the plaintiff for grant of maintenance of Rs.1,25,000/- p.m., till the controversies between the parties are resolved finally in the present suit, appears to be justified. Accordingly, the defendant is directed to pay to the plaintiff a sum of ` 1,25,000/- p.m. from the date of the filing of this suit till the suit is finally disposed of. Arrears shall be cleared within a month and monthly payment from September, 2013 onward shall be paid on or

before 7th day of every month.

16. The plaintiff has also sought interim injunction restraining her husband from creating any kind of third party interest in respect of the residential house in New Friends Colony as well as the flat in Gurgaon which he has purchased along with plaintiff's sister's daughter-in-law. It was submitted by Mr. Y.P. Narula, learned senior counsel for the plaintiff that the plaintiff and the defendant have been living in the house in New Friends colony since the year 1980 and therefore, that house is the matrimonial home of the parties as well as 'shared household' as defined in Section 2 of the Protection of Women from Domestic Violation Act, 2005 and therefore, she cannot be evicted from that property by her husband which he is contemplating to do by entering into some kind of collaboration agreement with a builder. The defendant has admitted that he has already started negotiations with builders for building a multi- storied property in place of existing structure at New Friends Colony. He has, however, also claimed that after re-construction of the property the plaintiff will be provided with accommodation in the newly built flatted complex or anywhere else within the vicinity of New Friends Colony commensurate with his status in the society. In this regard, the submission of Mr. Aman Lekhi, learned senior counsel for the defendant was that there was no dispute about the fact that a wife has a right to be

maintained by her husband and that right of maintenance includes residence also but no wife can claim a right to a particular property belonging to her husband. In support of this submission reliance was placed on a judgment dated 26th October, 2010 of a Division Bench of this Court in FAO (OS) 341/2007, "Shumita Didi Sandhu Vs. Sanjay Singh Sandhu & Ors."

17. The aforesaid judgment of the Division Bench of this Court does support the submission of Mr. Lekhi that the plaintiff wife cannot dictate to the defendant that he should not enter into any deal with a builder for reconstruction of his property and particularly when he assures that she would get some portion of the reconstructed house to live in or she would get an alternative accommodation somewhere else in the vicinity of the New Friends Colony and that accommodation would be commensurate with the status of the parties and the life style which they have been following. Therefore, the prayer for grant of interim injunction against the defendant restraining him from entering into any kind of collaboration agreement etc. with builders cannot be granted. However, it goes without saying that the defendant cannot dispossess her from property no. B-370, New Friends Colony, New Delhi except in accordance with law. And if the defendant enters into any kind of building contract in respect of the aforesaid property he would be at liberty to seek

appropriate directions in the present suit itself after bringing to the notice of the Court the details of the deal which he would be entering with the builders so that if at all the Court is to give clearance for that deal appropriate directions can also be passed to protect the interest of the plaintiff and which direction can include execution of the collaboration agreement between the defendant and the builder as well as the plaintiff for ensuring that after reconstruction is done she gets a portion of the newly built house as per the agreement. Similarly, no restrain order as has been prayed for by the plaintiff in respect of the defendant's flat in Gurgaon can be passed. The plaintiff had also sought an injunction against the defendant restraining him from selling expensive paintings which were acquired when the relationship between the parties was good. However, prima facie no case is made out for grant of this relief also to the plaintiff since, prima facie, she cannot be said to be joint owner of those paintings as it is her own case that she never had any income of her own.

18. Both these applications stand disposed of accordingly.

P.K. BHASIN, J August 12, 2013