Chander Shekhar Manchanda vs Aarti Manchanda
2013 Latest Caselaw 831 Del

*               HIGH COURT OF DELHI AT NEW DELHI

+                   CM(M) NO.646 OF 2011

                                       Decided on : 19th February, 2013

CHANDER SHEKHAR MANCHANDA              ...... Petitioner
            Through: Mr. Rajiv Bajaj, Advocate.

                      Versus

AARTI MANCHANDA                                    ......      Respondent
            Through:

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is a petition under Article 227 of the Constitution of India

against the order dated 19.4.2011 passed by the Family Court,

Rohini by virtue of which the interim maintenance @ `15,000/-

was granted to the respondent/wife.

2. I have heard the learned counsel for the petitioner. He has stated

that the documents filed by him have not been considered. In this

regard, the learned counsel has drawn the attention of the Court to

pages 28-29 of the petition showing identity card of the

respondent/wife and a receipt purported to be showing that she had

deposited a sum of `6,000/- with some institute for taking some

computer training.

3. It has also been contended by the learned counsel that the

respondent has a flat in Rohini and she is earning rental income

from the said flat. It has also been urged by him that the

respondent/wife in her application under Section 24 of the Hindu

Marriage Act has not revealed the material fact that two minor

children of the parties are with the petitioner and their entire

expenses including the school fees, are being borne by the

petitioner himself. On the basis of these broad averments, he has

assailed the impugned order.

4. I have carefully considered the submissions of the learned counsel

for the petitioner and gone through the impugned order.

5. The petitioner had filed a petition for divorce on the ground of

cruelty and desertion. During the pendency of the said petition, the

respondent /wife filed an application for grant of maintenance @

`50,000/- apart from litigation expenses of `55,000/-. It was

alleged in the application that the petitioner is running his own

business of shoe material and cotton cotted fabric in the name and

style of M/s N.C.Enterprises and is earning around `2 lacs per

month. Apart from this, it was alleged that he has 2 flats in Rohini

from which he is earning rental income. It was also alleged that the

appellant has two luxury cars and the maintenance of the cars itself

will entail huge expenses.

6. All these facts were averred in order to show the status of the

petitioner and on the basis of all these facts, an ad interim

maintenance of `50,000/- was claimed. The petitioner filed reply

to the application under Section 24 of HMA and contested the

claim. It was submitted by him that the petitioner is not earning `2

lacs per month as is sought to be alleged by the respondent on the

contrary, his actual income is `3.5 lacs per annum only.

7. With regard to the flats, the petitioner admitted ownership in

respect of only one flat and stated that he is living in the same and

therefore, there is absolutely no question of making any income

from the said flat. With regard to the ownership of the luxury cars,

no averment was made by the petitioner in the reply. On the

contrary, it was alleged by the petitioner that so far as the

respondent is concerned, she herself is doing business of beauty

parlour and is earning `20,000/- per month. The petitioner had

also stated that he has to maintain his widowed mother and bear the

expenses of his two minor children, which consume his most of the

income. He had also filed his income tax returns for the year 2010-

2011 which showed his gross income to the tune of `4,25,664/-.

8. The trial court after taking into account the factual matrix and

prima facie evidence produced by both the parties, took a view that

the petitioner is a businessman and it is a common knowledge that

the businessmen do not disclose their correct income in their

returns and therefore, it took the income of the petitioner as `1 lac

per month. The said income of `1 lac was sought to be divided in

terms of the judgment of this Court in six parts. Only one out of six

parts was allocated to the respondent/wife for the purpose of her

maintenance which was accordingly fixed at `15,000/-.

9. The learned counsel for the petitioner herein feeling dissatisfied

has filed the present petition under Article 227 of the Constitution

of India assailing the impugned order making submissions as

having reproduced herein above. The jurisdiction of the appellate

Court under Article 227 is very limited. It has to be exercised only

when there is a jurisdictional error or trial court acts in excess of its

jurisdiction or a perverse finding is returned prima facie by the

court below.

10. I do not feel that the trial court has arrived at a perverse finding or

it was not within its power to fix ad interim maintenance as has

been done.

11. Admittedly, both the parties in the instant case have failed to

produce any documentary evidence other than income tax return of

the petitioner which shows the income of the husband to the tune

of `4,25,664/- per month. It is a common knowledge and rightly

so believed by the trial court that the professionals, businessmen

and all other similarly placed persons earn much more than what is

reflected in the income tax record that is to say that if a person has

shown his income as `4.5 lacs, it could be very reasonably

assumed that his actual income is at least three times more than

what has been reflected in the income tax record. Apart from this,

the petitioner admittedly being a businessman, all his transactions

would not be reflected only by way of cheques. There is also

certain amount of money flowing by way of cash over a

period of time. Therefore, under these circumstances, I feel that

the trial court was perfectly justified in assuming his income as `1

lac per month. Having done so, the only question was with regard

to the apportionment of that income for the purpose of fixation of

maintenance of the respondent/wife. In this regard also, on the

basis of the judgment of this Court, the income of the petitioner has

been divided into six parts.

12. Keeping in view his other liabilities pertaining to his widowed

mother and two minor children and other expenses of his own self,

only 1/6th of his income has been allocated to the respondent/wife

which is `15,000/-. Keeping in view the income of `1 lac per

month being earned or made by the petitioner a sum of `15,000/-

cannot be said to be highly excessive to sustain a person in the

present times when each day, the cost of the articles of daily

routine is increasing. Therefore, I do not feel that the quantum of

maintenance which has been fixed by the trial court is excessive

and would warrant interference by this Court.

13. There are two other factors which have been urged by the

petitioner; one with regard to the alleged concealment by the wife

with regard to the custody of the children being with the petitioner.

The submission of the learned counsel for the petitioner is that this

fact ought to have been disclosed by the wife in the application.

This fact becomes inconsequential because ultimately no money

has been given by way of an ad interim maintenance for the

children to the respondent.

14. As regards, the question of earning of the respondent herself from

the beauty parlour, I feel that so far as the employment of the

respondent in a beauty parlour is concerned, this is only a

submission without any documentary evidence on record. The

petitioner would be well within his right to adduce evidence during

the course of trial and thereafter, file appropriate application for

modification of the order in the light of the facts so brought on

record. So far as two documents which are the identity card and

the receipt of deposit of `6,000/- by the respondent with some

institute for undergoing a course of computer training are

concerned, it only reflects expenses having been incurred by her

and does not reflect her income. Since the respondent is living

separately and has specifically stated that she is not gainfully

employed, there is absolutely no reason for her not to pursue some

course or attain some skills which can get her employed, so that

she is financially independent. This cannot be construed against

her at this stage.

15. In the totality of facts and circumstances, I do not find that this is a

fit case where the Court must exercise its jurisdiction under Article

227 of the Constitution of India, accordingly, the petition is

dismissed.

V.K. SHALI, J.

FEBRUARY 19, 2013 RN