Delhi High Court
Manmohan Kohli vs Natasha Kohli on 6 February, 2013
Author: G. S. Sistani
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No.1019/2010
% Judgment pronounced on 6th February, 2013
# Manmohan Kohli .... Appellant
Through: Ms. Geeta Luthra, Sr. Adv. with Mr. Ankur
Mahindro, Adv.
Versus
$ Natasha Kohli .... Respondent
Through: Mr. Rajshekhar Rao, Ms. Anu Bagai and
Mr. Bhuvan Mishra, Advs.
CORAM:
HON'BLE MR. JUSTICE G.S. SISTANI
G.S. SISTANI, J.
1. The present petition is directed against the order dated 19.05.2010
passed by the Learned Additional District and Sessions Judge allowing
the application of the respondent filed under section 24 & 26 of the
Hindu Marriage Act seeking maintenance of Rs. 20 Lac per month for
herself and her minor son. The trial court has awarded maintenance of
Rs 2.5 lakhs per month towards the minor son and litigation expenses to
the tune of Rs. 4 lakhs to the respondent wife.
2. The brief facts that are necessary to be noticed for disposal of this
petition are that the marriage between the petitioner and the respondent
was solemnised on 11.04.1994 a son, who is presently stated to be 14
years of age, was born out of the wedlock. Admittedly, the respondent
continues to stay in the matrimonial house along with her minor son.
The petitioner has filed a petition for a decree of nullity of marriage
with the respondent on the grounds that the respondent was already
married at the time of her marriage with the petitioner.
3. The counsel for the petitioner submits that the learned trial court has
erred in awarding a sum of Rs 2.5 lakhs as maintenance for the minor
son since the said amount is highly excessive, usurious and exorbitant. It
is further submitted by the counsel for the petitioner that the learned
trial court has failed to appreciate the fact that the minor child is in the
joint custody of both the parties and it is the petitioner who is looking
after and providing for all the needs of the child. The counsel for the
petitioner next submits that admittedly, the respondent along with the
minor child continue to reside in the matrimonial home. It is next
submitted by the counsel for the petitioner that in addition to providing
the finances for running the household (including but not limited to
salary of domestic servants, security of the house and kitchen expenses),
the petitioner has also provided the minor son with a Chauffer driven
car for the minor child‟s comfort. Further, learned counsel submits that
the petitioner is also incurring all the ancillary expenses such as school
fess, tuition fees, money for extra-curricular activities for the minor son.
The counsel contends that since the entire expenses of the child are
being borne by the petitioner, the maintenance awarded to the minor son
would be purely spent by the respondent to enrich herself. It is further
contended by the counsel for the petitioner that the trial court has erred
in awarding arrears of maintenance from the date of application since all
expenses have been met by the petitioner till date. Counsel for the
petitioner submits that the petitioner is ready to bear all the legitimate
expenses for the minor son.
4. It is also strongly urged by Ms.Luthra, learned senior counsel for the
petitioner, that the trial court has lost sight of the fact that the
expenditure chart showing an average monthly expenditure of
Rs.29,828 on the child filed by the respondent at Annexure 6 is highly
exaggerated and inflated. The counsel for petitioner further contends
that the child is merely 14 years of age and awarding an amount of Rs
2.5 lakhs per month as maintenance would be detrimental to the proper
upbringing of the child. The counsel for the petitioner next submits that
to inflate the expenditure, the respondent wife has even included capital
expenditure incurred on a car, computer, laptop, furniture, room
renovation which are all irrelevant to determine the maintenance of the
minor child. Further the respondent has included the entertainment
expenses purportedly of the minor son on Bacardi, breezer, which a
child of 13 years could not have spent. It is further submitted that the
trial court has awarded maintenance in excess and without keeping in
view the realistic needs and necessities of the child of such a tender age.
5. It is next submitted by the counsel for the petitioner, that the petitioner
has been providing for all the needs including payment of school fees of
the minor child however, pursuant to filing of the suit C.S. 1321/06, the
respondent with an intent to create a false impression started paying the
school fees of the minor child.
6. Learned counsel for the petitioner submits that the trial court has despite
making an observation that the petitioner is incurring expense for
running the household and providing for the minor child of his own free
will has nevertheless awarded an exorbitant amount of maintenance to
the minor son despite observing that the respondent wife is an extremely
successful interior designer and a businesswoman running various
companies in the name of M/s Filo Interior Decoration Pvt Ltd., M/s
Travancore Resources Pvt Ltd. and M/s Rinat which is a proprietorship
concern. It is next submitted that the respondent has a flourishing
business and the companies of the respondent are generating an income
of several lakhs per month. Learned counsel also states that a sum of Rs
18,500 per month is also being paid by the petitioner‟s company to the
respondent since 2001.
7. It is further contended by the counsel for the petitioner that when both
the parents of the child are economically sound and self sufficient, it is
the duty of both the parents to provide for the maintenance of the child.
In support of the above plea Ms Luthra has relied on Padmja Sharma v.
Ratalal Sharma reported in (2000)4 SCC 26 wherein both the parents
of the child were earning reasonably well, the counsel for the petitioner
has drawn the attention of this court to the observation of the Apex
Court at para 10 which reads as under:
"10. Maintenance has not been defined in the Act or
between the parents whose duty it is to maintain the
children. The Hindu Marriage Act, 1955, the Hindu
Minority and Guardianship Act, 1956, the Hindu Adoptions
and Maintenance Act, 1956 and the Hindu Succession Act,
1956 constitute a law in a coded form for the Hindus. Unless
there is anything repugnant to the context definition of a
particular word could be lifted from any of the four Acts
constituting the law to interpret a certain provision. All these
Acts are to be read in conjunction with one another and
interpreted accordingly. We can, therefore, go to the Hindu
Adoptions and Maintenance Act, 1956 (for short "the
Maintenance Act") to understand the meaning of
"maintenance". In clause (b) of Section 3 of this Act
"maintenance includes -- (i) in all cases, provision for
food, clothing, residence, education and medical attendance
and treatment; (ii) in the case of an unmarried daughter also
the reasonable expenses of and incident to her marriage;"
and under clause (c) " „minor‟ means a person who has not
completed his or her age of eighteen years".
Under Section 18 of the Maintenance Act a Hindu wife shall
be entitled to be maintained by her husband during her
lifetime. This is of course subject to certain conditions with
which we are not concerned. Section 202 provides for
maintenance of children and aged parents. Under this
section a Hindu is bound, during his or her lifetime, to
maintain his or her children. A minor child so long as he is a
minor can claim maintenance from his or her father or
mother. Section 20 is, therefore, to be contrasted with
Section 18. Under this section it is as much the obligation of
the father to maintain a minor child as that of the mother. It
is not the law that how (sic howsoever) affluent the mother
may be it is the obligation only of the father to maintain the
minor.
8. It is strongly urged by the counsel for the petitioner that the
maintenance under sections 24 and 26 of the Hindu Marriage Act cannot
be granted to bring equality of incomes of both the spouses nor can it be
granted so as to enable a spouse to enjoy a lavish and opulent lifestyle at
the cost of the other party. Rather the maintenance awarded should be
such as to ensure a standard of living that is moderately consistent with
the status of the parties. It is further contended that maintenance cannot
be penal or profiteering. To support this contention, the counsel for the
petitioner places reliance on the case of Sayali Pathak v. Mr. Vasant
Pathak reported in 110(2004) DLT 637 and more particularly at para 3
which reads as under:
"3. Interim maintenance is not granted as a penalty against
either of the spouses. It is intended to ensure that the parties
maintain a standard of living that is in close consonance
with that enjoined by them as a family prior to the outbreak
of their matrimonial differences and discord. Maintenance is
not granted to enjoy an opulent lifestyle. It is trite to state
that the disposable incomes of both the spouses should first
be calculated by a reasonable approximation and not a
mathematical certainty."
9. Further reliance is placed on Shri Bhagwan Dutt v. Smt. Kamla Devi
and Another reported in (1975)2 SCC 386 and particularly at para 19
which reads as under:
"19. The object of these provisions being to prevent
vagrancy and destitution, the Magistrate has to find out as
to what is required by the wife to maintain a standard of
living which is neither luxurious nor penurious, but is
modestly consistent with the status of the family. The needs
and requirements of the wife for such moderate living can
be fairly determined, only if her separate income, also, is
taken into account together with the earnings of the
husband and his commitments."
10. The counsel for the petitioner has also argued before this Court that since
the marriage of the petitioner and the respondent is void ab inito and that
the respondent is a successful businesswoman fully capable of
maintaining herself and leading a luxurious life, the respondent is not
entitled to any maintenance or the litigation expenses to her. It is further
submitted by the counsel for the petitioner that since the respondent wife
concealed her true income from the trial court, she has approached the
court with unclean hands and thus, is not entitled to any relief.
11. The counsel for the respondent has, however, confined her arguments to
the question of maintenance towards the minor child alone since a
separate petition has been filed by the respondent wife assailing the order
of the trial court rejecting the application of the respondent filed under
Section 24 of Hindu Marriage Act denying her any maintenance from the
petitioner.
12. At the outset, the counsel for the respondent has questioned the
maintainability of the present petition under Article 227 of the
Constitution of India. It is contended by the counsel for the respondent
that the present petition is an abuse of the process of law and the High
Court under its supervisory jurisdiction cannot review or reweigh the
evidence/material before the trial court nor can the High Court upset a
finding of fact however erroneous it may be. Reliance is placed on Classic
Equipments (P) Ltd v. Johnson Enterprises & ors. reported in 2010(2)
RAJ 406(Del) and more particularly at para 19 which read as under:
"19. It is no longer res intergra that the powers of the High
Court: under Article 226 and 227 of the Constitution of
India, are very wide , however, the same are to be exercised
not as a Court of Appeal , and the High Court should be
slow to interfere unless there is grave miscarriage of
justice".
13. Reliance is also placed on Sandana Lodh v. National Insurance Co. Ltd.
reported at (2003)3 SCC 528 and more particularly at para 7 which reads
as under:
"7. The supervisory jurisdiction conferred on the High
Courts under Article 227 of the Constitution is confined
only to see whether an inferior court or tribunal has
proceeded within its parameters and not to correct an error
apparent on the face of the record, much less of an error of
law. In exercising the supervisory power under Article 227
of the Constitution, the High Court does not act as an
appellate court or the tribunal. It is also not permissible to
a High Court on a petition filed under Article 227 of the
Constitution to review or reweigh the evidence upon which
the inferior court or tribunal purports to have passed the
order or to correct errors of law in the decision."
14. Further, reliance is placed on India Pipe Fitting Co. v. Fakruddin M.A.
Baker and Anthr reported in AIR 1978 SC 45 and particularly at para 5
which reads as under:
"5. The limitation of the High Court while exercising power
under Article 227 of the Constitution is well settled. Power
under Article 227 is one of judicial superintendence and
cannot be exercised to upset conclusions of facts however
erroneous those may be. It is well-settled and perhaps too
late in the day to refer to the decision of the Constitution
Bench of this Court in Waryam Singh v. Amarnath1 where
the principles have been clearly laid down as follows:
"This power of superintendence conferred by Article
227 is, as pointed out by Harries, C.J., in Dalmia Jain
Airways Ltd. v. Sukumar Mukherjee2 to be exercised most
sparingly and only in appropriate cases in order to keep the
Subordinate Courts within the bounds of their authority and
not for correcting mere errors."
15. The counsel for the respondent submits that the quantum of maintenance
awarded by the trial court towards the minor child is totally in accordance
with the law and the status and life style to which the minor child is
accustomed to. Counsel next submits that the maintenance so awarded is
neither exorbitant nor punitive or penal but has been rightly awarded
keeping in view the standard of life and it is in accordance with the
income of both the parties. It is further submitted that it is imperative for
the grant of maintenance that the growing needs of the child are
considered in a proper perspective considering the society the child lives
in and the facilities that the child is accustomed to. The expenditure chart
annexed as Annexure P-6 pertains to the period 2006-2008 and the needs
of the child have been increasing thereafter. There have been certain
additional expenses on the soccer camps, football training, skiing and
other such expenses which the respondent has been incurring and which
have not been mentioned in the expenses charged which has been placed
on record. Counsel for the respondent submits that the parties and the
minor child are accustomed to a luxurious life style an idea about the
status of the parties may be drawn from the fact that the parties reside at
palatial house in Amrita Shergill Marg. The land on which the house is
built is valued on a conservative basis at more than Rs.250 crores. It is
next submitted that the petitioner owns a big industry under the name and
style of "The Printers House". Petitioner is the Managing Director and has
dominant control over the same. It is submitted that the petitioner has a
huge income from the company and in the last four years has earned
dividends to the tune of Rs.75 crores. It is further submitted that the
parties are used to take luxurious and expensive vacations abroad about
two to three times every year.
16. The counsel for the respondent denies that the minor child is in the joint
custody of both the parties. It is next submitted by the counsel for the
respondent that despite staying in the house of the petitioner, all the needs
of the minor are completely being taken care of by the respondent alone.
It is further submitted that the petitioner is only contributing towards
minimum expenses for running the household and the majority of the
expenses are being met by the respondent. It is further contended by the
counsel for the respondent that the respondent has been exclusively taking
care of all the needs of the child including food, clothing, school fees,
tuition fees, training camps, sports, music, golf, renovation of his room
from her limited savings and resources as her business is incurring losses.
The counsel next submits that it was for the first time that the petitioner
paid a sum of Rs 1.5 lakhs on 25.08.2010 towards the maintenance of the
minor child.
17. The counsel for the respondent has vehemently denied that the respondent
is a successful business woman. The counsel for the respondent submits
that the business of the petitioner is incurring losses. It is next submitted
that the respondent is not running any business under the name and style
of "Rinat". It is denied by the counsel for the respondent that the
respondent has employed around 100 employees. It is further submitted
by the counsel for the respondent that the respondent buying a new car has
no bearing on the issue of maintenance to the minor child.
18. It is contended by the counsel for the respondent that the amount of
maintenance awarded is in no way detrimental to the upbringing of the
child. The development of the child is not restricted to academics/school
but also to various extra-curricular activities that he undertakes. It is next
submitted that the maintenance to the child does not only mean bare
subsistence but has to be an amount that entitles the minor child to
continue and enjoy similar facilities that he is accustomed to. It is
submitted that besides enjoying all modern and luxurious facilities,
getting the best education possible the minor child also attends various
training camps for soccer, skiing, golf and other such like activities. It is
next submitted that the minor child is used to lavish holidays. It is further
pointed out by the counsel for the respondent that the minor child is a
meritorious and a bright child and it is due to the efforts of the respondent
alone that the child has been performing meritoriously in all extra-
curricular activities and has won laurels in various sports like golf, soccer,
skiing and other sports.
19. The counsel for the respondent next submits that as far as the litigation
expenses are concerned, the counsel for the respondent submits that due to
various frivolous litigations being filed by the petitioner, the respondent
was constrained to defend herself which has considerably added to her
expenses particularly when her business is running into losses. The
litigation expenses as awarded by the learned trial court are neither
inflated nor excessive.
20. I have heard counsel for the parties, considered their rival contentions and
have perused the entire material placed on record. It has been contended
by counsel for the petitioner that the child is in the joint custody of both
the parents and the petitioner has been meeting all the expenses for the
child and looking after the needs of the minor child. The counsel for the
petitioner has also urged before this Court that given the fact that the
respondent-wife is a successful businesswoman leading a luxurious life
she has an equal obligation to maintain the child. Further, the counsel on
behalf of the petitioner has stated that he is willing to provided for all
expenditure incurred towards the maintenance and upkeep of his son,
provided the details of the same are provided on an actual basis. The
counsel for the respondent has denied the plea of the petitioner that the
child is in the joint custody of both the parties and it has been submitted
that the respondent is meeting all the expenses of the child. It is also
submitted by the counsel on behalf of the respondent that the business of
the respondent is running into losses and it is with extreme difficulty that
she is providing for the expenses of the minor child. Counsel for the
respondent has further submitted that the expense chart so produced in
court is not excessive and has been made keeping in mind the needs of the
minor child.
21. Admittedly the respondent is residing in the matrimonial home with the
minor child. It is also not in dispute that the petitioner is incurring some
expenditure towards running of the household such as water and
electricity charges, kitchen expenses, salary of domestic staff and has also
provided a car with a chauffeur for the comfort of the minor child.
Though the quantum on such expenses is in dispute.
22. In the present case the respondent has challenged the maintainability of
the present petition under Article 227 of the Constitution on the ground
that the this court , under Article 227 , does not have the power to reweigh
the evidence or to upset a finding of fact. While there is no quarrel with
the proposition sought to be urged by counsel for the petitioner, however,
Article 227 vests supervisory jurisdiction on the High Court and the
power so vested is very wide, however, the same is not to be exercised as
a court of appeal nor the same is to be exercised to upset conclusions of
fact. The High Court can interfere with the orders of the trial court if the
trial court has not proceeded within its parameters. The Apex Court has
very clearly laid down in State of W.B v. Samar Kumar Sarkar reported
in (2009)15 SCC 444 that "the High Court under its power of
superintendence can rectify an error". I may, however, add that the High
Court must be slow in interfering with the order so passed unless there is
grave miscarriage of justice.
23. It is settled position of law that a wife and children are entitled to live in a
similar status as was enjoyed by them in the matrimonial/paternal home.
The child even after the separation of the parents would be entitled to lead
a life of comfort which he/she is accustomed to.
24. A Single Judge of this Court in the case of Bharat Hegde v. Saroj Hegde,
reported at 140 (2007) DLT 16 has culled out 11 factors, which can be
taken into consideration for deciding the application under Section 24 of
Hindu Marriage Act.
25. 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. (See Jasbir Kaur Sehgal (Smt.) v. District Judge, Dehradun &
Others, reported at (1997) 7 Supreme Court Cases 7).
26. Although there cannot be an exhaustive list of factors, which are to be
considered 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 or to get an idea of the income and lifestyle of the
parties the Court can take into consideration amongst others 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.
27. These are some of the factors, which may be considered by any court in
guesstimating or to get a rough idea of the income/life style of a
spouse/parties. 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. The same would
also apply to the minor child as well.
28. In my view the learned trial court has threadbare dealt with all the
submissions and contentions of both the parties. The trial court has
noticed the judgments relied upon by the parties and rightly applied the
same to the facts of the present case. It would be useful to reproduce paras
15 and 16 of the judgment of the trial court, which read as under:
"15. Time now to deal with the records placed. As far as the
stand of the Respondent wife that the Petitioner has concealed his
true income is concerned, appears to be correct, in view of what
has been placed on record in the form of records of the Company-
The Printers House Ltd. It has been demonstrated by the Ld.
Counsel for the Respondent that the Petitioner, in fact, had been
receiving dividend income of much higher amounts, then those
shown in the affidavit filed by him. Ld. Counsel for the
Respondent has placed on record the details of the income of the
dividend income for the relevant years, and there is no dispute by
the Petitioner side qua the same. The relevant particulars are
detailed in the following tabular form:
S.No. Year Dividend
1. 2001-02 24.15 Cr.
2. 2002-03 -
3. 2003-04 23.51 Cr.
4. 2004-05 20.95 Cr.
5. 2005-06 6.25 Cr.
6. 2006-07 13.68 Cr.
7. 2007-08 7.29 Cr.
8. 2008-09 60.36 Cr.
9. 2009-10 2.6 Cr.
16. These figures are corroborated by the other records placed
by the Respondent, as well the Petitioner himself. Thus, there
remains no dispute as to the fact that the income of the Petitioner
runs to such extent, contrary to what has been claimed in the
affidavit of the Petitioner."
29. Reading of paras 15 and 16 of the judgment of the trial court would show
that the petitioner is a man of means.
30. During the pendency of this matter, the respondent has placed on record
various documents to show how the payments received are being spent by
the respondent. Respondent has also placed documents on record to show
that the child has been taking coaching classes and has successfully
participated in various extra-curricular activities including soccer, skiing,
golf and other sports. The child has also done very well in his studies. The
status, life style and level of upbringing of the child can be ascertained
from the place of residence i.e. Amrita Shergill Marg, servants, cars,
holidaying, school and the type of extra-curricular activities he is
pursuing. The maintenance for the child is to be fixed keeping the above
facts in mind.
31. There can be no denial to the fact that the expenses of the child may have
gone up with time and the needs of the child would have increased. The
additional expenditure has been on account of the extra-curricular
activities of the child largely on the international soccer camps, golf
training, skiing camps. Perusal of the records shows that the respondent
has incurred a sum of Rs 802865 in June 2010 on an international soccer
camp of the child.
32. The counsel for the respondent points out that these extra-curricular
activities help in the over-all development of the child and that the child
has been accustomed to such a lifestyle. I find merit in the contention of
the counsel for the respondent. Though huge amounts are being spent on
the extra-curricular activities in India and abroad, the child has shown an
excellent performance and has given meritorious results. The records
make it evident that the child is not only excelling in sports but also in
academics and has won laurels. During the course of hearing, it was also
pointed out by the counsel for the respondent that the child Rishab Kohli
has been selected by Jaguar to play football at the national level.
33. In my opinion going through the academic records, past records of the
minor son and certificates, there is no room for doubt that the child is
extremely bright and a meritorious student, also the fact that the tutoring
and training camps have had a positive impact on the child and enhanced
his qualities further cannot be overlooked. Given that it is not the
petitioner‟s case that the petitioner does not have the capacity or the
ability to pay. During the hearing, the petitioner has shown willingness to
meet out all the legitimate expenses of the child including his school fees,
tuition fees, training camps and any other such like expenses. The
judgment sought to be relied upon by counsel for the petitioner are not
applicable to the facts of the present case.
34. Keeping in mind the facts of the case, the documents placed on record and
the settled position of law, there is no infirmity in the order of the trial
court. No grounds to hold that the minor child is not entitled to
maintenance, however, the order of the trial court is modified only to the
extent that the amount of maintenance is reduced from Rs.2.50 lakhs to
2.00 lakhs per month. Further, the petitioner shall clear all arrears within a
period of two months from receipt of the order. However, I deem it proper
that the respondent to file quarterly statements of accounts with the trial
court, a copy of which shall be supplied to the petitioner.
CM NO.14013/2010.
35. Application stands dismissed in view of the orders passed in the petition.
CM 3893/2012
36. Leave, as prayed, is granted to the respondent to approach the trial court
and seek enhancement.
37. Application stands disposed of.
G.S. SISTANI, J.
February 6, 2013
'ssn/msr‟
