Deepak Bhushan Gupta vs Reshu Garg
2013 Latest Caselaw 133 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          C.M. (M) NO.936 OF 2011

                                         Decided on : 09th January , 2013

DEEPAK BHUSHAN GUPTA                   ...... Petitioner
            Through: Mr. Rajiv Aneja, Advocate.

                        Versus

RESHU GARG                                      ...... Respondent
                      Through:   Mr. Awan Kumar Goel, Advocate.

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

V.K. SHALI, J. (ORAL)

1. This is a Civil Miscellaneous Main petition filed by the petitioner

against the order dated 20.5.2010 passed by the Additional Principal

Judge, Family Court, Rohini directing the petitioner to pay interim

maintenance @ `22,500/- per month to the respondent and her son apart

from `20,000/- as litigation expenses.

2. The main contention of the learned counsel for the petitioner is that

the learned Additional Principal Judge, Family Court has fallen into grave

error by directing the petitioner to pay interim maintenance @ `22,500/-

per month to the respondent despite the fact that the petitioner is only

employed in some private industry and was earning `5,200/- per month

which has now been increased to `8,000/-. It has been submitted that the

learned Judge has failed to appreciate the averments and the evidence

which has been produced by the petitioner.

3. The submission of the learned counsel for the petitioner has been

refuted by the learned counsel for the respondent. He has taken the court

through the impugned order and contended that keeping in view the status

of the parties, the learned Family Judge has rightly fixed the maintenance

@ `22,500/- per month.

4. I have carefully considered the submissions and have gone through

the record. Before giving the reasons for dismissing the petition, it would

be pertinent here to mention the brief facts of the case.

5. The present petitioner got married to the respondent on 10.2.2008

according to Hindu rites and ceremonies. From the wedlock, the

petitioner and the respondent were blessed with a son on 26.10.2008.

The respondent has taken the stand that her father had spent around `35

lacs at the time of marriage and gifted a Honda City car also. It was also

stated by her that at the time of marriage, it was represented to the

respondent and her family members that the petitioner was a man of

means and his parents owned number of properties and the family income

was approximately `5 lacs per month.

6. The petitioner had filed a petition for divorce against the

respondent while as the respondent had claimed that the petitioner had,

without any rhyme or reason withdrawn from the matrimonial company.

The matrimonial home of the parties was F-169, Prashant Vihar, Delhi,

where the petitioner along with the respondent was living on the first

floor initially but after withdrawing from the company of the respondent,

he started living on the ground floor along with his parents and sister. In

the petition for divorce, the respondent herein filed an application

claiming that she does not have an independent source of income and the

present petitioner is not maintaining her and rather has chosen to file a

petition for divorce. It is stated that she is entitled to interim maintenance

and litigation expenses. She had claimed that the petitioner is a man of

means inasmuch as the property No.F-169, Prashant Vihar, Delhi is

owned by him along with his mother. There are number of other

properties owned by either the petitioner or his parents. These properties

were E-876, Narela Industrial Area, Delhi; T-4/50, Mangol Puri Industrial

Area, Phase-I and 2986/222, Chander Nagar, Tri Nagar, Delhi. It was

alleged that these properties have been let out and are fetching a rent of

`85,000/, `1,20,000/- and `40,000/- per month respectively. On the basis

of this, it was alleged by the respondent that she is entitled to interim

maintenance @ `75,000/- per month apart from litigation expenses of

`33,000/-.

7. The petitioner herein filed his reply to the application and stated

that he is earning only `5,200/- per month. In order to prove that he was

earning only a sum of `5,200/- per month at the time of filing of the

application, he produced a certificate purported to have been issued by

M/s Prateek Industries, his employer. The learned trial court, after

examining the parties, prima facie observed that the certificate which is

purported to have been produced by the present petitioner was a procured

one inasmuch as this certificate had been issued by M/s. Prateek

Industries which happen to be a tenant of his parents in respect of

Trinagar property. It is also observed that a person whose parents are

running industries and are having number of properties would hardly be

working at a monthly salary of `5,200/-. It was observed by the trial court

that the petitioner must be earning around `60,000/- per month by any

modest calculation and on the basis of that yardstick, it fixed maintenance

@ `22,500/- per month for the respondent and her son.

8. The petitioner had not disputed the factum of marriage, the factum

of F-169, Prashant Vihar, Delhi, being matrimonial home or the fact that

the respondent was without any independent source of income. If that be

the situation, the respondent was admittedly entitled to be maintained by

the petitioner as the petitioner had chosen to file a petition for divorce

against her. The question which arises is regarding the quantum of

maintenance for the respondent and for the son, who was born from the

wedlock. The petitioner had also not denied the ownership of the

properties, details of which were given hereinabove. On the contrary, it

has transpired that property No.F-169, Prashant Vihar, Delhi, where the

respondent was living was, in fact, a property which was originally

owned by the petitioner and it was transferred to his morther after the

marriage of the petitioner. This was somewhere around August, 2008 or

so. Obviously, it gives an impression that the moment the relations

between the petitioner and the respondent got strained; he took corrective

steps to divest himself of the ownership of the property knowing that it

may come handy in the hands of the respondent against him in the later

years. I feel that this transfer of ownership of the property was done in

favour of his mother by the petitioner with the intention to show that he is

a man without ownership of any immovable property to defeat the claim

of the respondent. The trial court has also not believed that he is

employed and earning `5,200/- only. Even an unskilled worker would be

earning around `5,200/- or more if he is paid wages under the Minimum

Wages Act. A person whose parents are well to do in status and owner of

number of immovable properties, their only son can hardly be believed to

be employed at a monthly income of `5,200/-. The learned trial court

has very reasonably fixed a modest sum of `22,500/- per month for the

maintenance of the respondent and her child by observing that the income

of the petitioner must be assumed to be approximately `60,000/-.

9. I do not find any illegality, infirmity or incorrectness either in

analysis of the facts or in appreciation of the evidence prima facie for the

purpose of granting maintenance to the respondent and her child. On the

contrary, the impression which even this court gets from the record is that

the entire exercise on the part of the petitioner is not only to ensure that

the respondent does not get any maintenance but he also wants to get rid

of her. I, therefore, feel that the order of maintenance passed by the court

below does not call for any interference.

10. The another reason for not interfering with the impugned order is

that after this order was passed, the petitioner had filed a review

application before the court concerned and raised all these points afresh

by urging that evidence has not been considered. The learned Principal

Judge had passed a fresh order running into 23 pages dealing with all the

submissions of the petitioner and refuted his application for review by

observing that there is no error apparent on the face of the record.

Incidentally, it may be mentioned that this order of rejection of review

has not been challenged and even if the impugned order is set aside, still

the order passed by the learned trial court rejecting the review application

of the petitioner would stand in his way.

11. In the light of the aforesaid facts and the totality of circumstances, I

feel that there is no ground for interfering with the impugned order passed

by the Principal Judge, Family Court, Rohini granting interim

maintenance @ `22,500/- per month to the respondent and her son.

Accordingly, the petition is dismissed.

V.K. SHALI, J.

JANUARY 09, 2013 'AA'