Avnija Ahluwalia (Minor) ... vs Vikaas Ahluwalia
2013 Latest Caselaw 1081 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                              Date of decision: 5th March, 2013

+                                     CS(OS) No.1990/2011

       AVNIJA AHLUWALIA (MINOR) THROUGH:
       NEXT FRIEND SIMRAN & ANR.                 ..... Plaintiffs
                    Through: Mr. Prasoon Kumar & Mr. Deepak,
                             Chander, Advs.
                                      Versus
       VIKAAS AHLUWALIA                                         ..... Defendant
                   Through:                Mr. Y.P. Narula, Sr. Adv. with Mr.
                                           Aniruddha Chaudhary, Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J
I.A. No.11046/2009 (u/Ss 18 & 20 of Hindu Adoption and Maintenance Act,
1956)

1.

The two plaintiffs who are the wife and minor daughter (now aged about

11 years) of the defendant, in this suit for recovery of maintenance under

Sections 18 & 20 of the Hindu Adoption and Maintenance Act, 1956, seek

interim maintenance @ Rs.5,00,000/- per month with effect from March, 2008

with escalation of 15% per annum and a residence for the plaintiffs or in lieu

thereof a sum of Rs.2,50,000/- per month towards rent.

2. The counsel for the plaintiffs has argued that the defendant is the only

legal heir of M/s. Ahluwalia Contractors, which business was started by the

grandfather of the defendant and is now run by the father of the defendant; that

M/s. Ahluwalia Contracts (India) Limited is a listed company and the defendant

has a lavish lifestyle and thus interim maintenance be fixed at Rs.5,00,000/- per

month as claimed.

3. Per contra, the senior counsel for the defendant has stated that the

marriage between the plaintiff No.2 and the defendant was arranged not by the

parents of the plaintiff No.2 and the defendant but was against the wishes of the

parents of the plaintiff No.2 and the defendant; after the marriage, they were

living separately from the parents of the defendant, in the colony of Jalvayu

Vihar, Noida, U.P.; that it was only when the plaintiff No.2 became pregnant

with plaintiff No.1 that the father of the defendant brought them to his own

house; that the defendant is a whole time Director in M/s. Ahluwalia Contracts

(India) Limited and at the time of marriage in the year 2001 had earnings of

approximately Rs.6,00,000/- per annum from the said company and which now

stand increased to Rs.13,00,000/- per annum. The senior counsel for the

defendant has offered to pay interim maintenance @ Rs.50,000/- per month,

besides bearing the expenses of school fees, books, uniform etc. of the plaintiff

No.1. On persuasion, he has also consented to bear the medical expenses of the

plaintiffs by taking out an insurance policy therefor in the sum of Rs.5,00,000/-

annually.

4. The counsel for the plaintiffs on the contrary has argued that no reliance

can be placed on income tax returns where income is always concealed. He has

contended that the defendant is holding shares of M/s Ahluwalia Contracts

(India) Limited and other family companies of the value of Rs.50 crores; his

house is adorned with expensive art and valuable cars are parked therein (of

which photographs are shown) and also owns several properties.

5. Needless to add that the senior counsel for the defendant controverts and

adds that the plaintiff no.2 herself in a partition suit also filed by her has

admitted that the properties do not stand in the name of the defendant. He has

further drawn attention to Section 23(2)(c) of the Act to demonstrate the scope

of maintenance thereunder.

6. Though the counsel for the plaintiffs has cited as many as ten judgments

which are placed on record, but need is not felt to burden this order therewith,

inasmuch as the interim maintenance in each case depends upon the facts

thereof and no general or thumb rule can be adopted.

7. It is necessary to setout some of the relevant facts which have emerged in

the hearing.

(i) The plaintiff No.2 has also filed an application under Section 24 of

the Hindu Marriage Act, 1955 for maintenance in a divorce petition

filed by the defendant and on which application arguments have been

heard and order stands reserved.

(ii) The defendant, in this suit, as far back as on 20th December, 2010,

without prejudice to his rights and contentions offered to pay an

amount of Rs.50,000/- per month by way of interim maintenance but

which was not accepted by the counsel for the plaintiffs stating that a

minimum amount of Rs.75,000/- would have been good enough to

meet her day to day expenses.

(iii) The defendant has deposited a sum of Rs.2,35,000/- in the

Guardianship Court in the guardianship proceedings filed by him, for

the benefit of the plaintiff No.1 but which amount has also not been

withdrawn by the plaintiff no.2 till date. Vide order dated 20th

December, 2010 in these proceedings also liberty was granted to the

plaintiff No.2 to withdraw the said amount from the Guardianship

Court but the plaintiff No.2 has not withdrawn the same till now.

(iv) The defendant filed I.A. No.12336/2009 in this suit for permission

to pay Rs.15,000/- per month as maintenance to the plaintiff no.1,

without prejudice to the rights and contentions of the plaintiffs to

claim a higher amount as maintenance, and vide order dated 25th

April, 2011, the defendant was permitted to deposit Rs.15,000/- with

effect from the filing of the petition in this Court, but since the

plaintiffs were not willing to accept the said amount, the said amount

was ordered to be kept in an interest bearing Fixed Deposit Receipt

(FDR).

(v) The plaintiffs are residing along with the parents of the plaintiff No.2

in the colony of Gujrat Vihar, Delhi in a house constructed over

approximately 150 sq. yrds. and the plaintiff No.1 is studying in

Delhi Public School, Noida, U.P. The only sibling of the plaintiff

No.2, being a brother, is settled in the United States of America

(USA).

8. Though the counsel for the plaintiffs, to demonstrate the status which the

plaintiffs were enjoying in the house of the defendant, has relied on a document

to show that cash amount of approximately Rs.9 lakhs was handed to the

plaintiff No.2 in a period of little over two months, but the senior counsel for

the defendant has argued that when disputes and differences were brewing

between the plaintiff No.2 and the defendant, the father of the defendant had

acquired a flat at ATS Greens, Expressway, Noida, U.P. for their separate

living as desired by the plaintiff No.2 and the said amounts were released to the

plaintiff No.2 for furnishing of the said flat and not by way of disposable

expenses. It is further argued that the plaintiff No.2 however did not even agree

to move in to a separate house with the defendant.

9. I am of the opinion that at this stage the pleadings and the counter

arguments are not to be discussed in detail. The application has already

remained pending for more than three years. I am further a little intrigued as to

the resistance of the plaintiff No.2 to even without prejudice to her rights and

contentions, withdraw the monies offered by the defendant from time to time. It

has been enquired from the counsel for the plaintiffs whether the plaintiff No.2

was present in the Court and as to why such conduct of the plaintiff No.2

should not be deemed as indicative of the plaintiff no.2 being not in a need of

any maintenance and as to why the relief of interim maintenance should not be

denied on this ground alone. The counsel for the plaintiffs informed that the

plaintiff No.2 was not present and states that though the plaintiffs are subsisting

on loan including from the brother of the plaintiff No.2 residing in USA, but

have not accepted the monies offered by the defendant from time to time, for

the reason of the same coming in the way of the plaintiffs pressing this

application for interim relief.

10. This explanation is not satisfactory. The plaintiff No.2 could have always

accepted the said monies, as aforesaid, without prejudice to her rights and

contentions to press for a higher amount. But for giving the benefit of doubt to

the plaintiffs, of a possible wrong legal advice for refusing interim

maintenance, I am inclined to deny interim maintenance on such conduct alone

of the plaintiff No.2. When the plaintiff no.2 can afford to wait for several years

to press her application for interim relief, ordinarily she would be presumed to

be capable of waiting till the final adjudication of the suit also.

11. Though it is argued by the senior counsel for the defendant that the

plaintiffs have nowhere pleaded concealment of true income by the defendant,

but the practice of several of the expenses of Directors, and their family

members in such family run companies being met by the Companies, can be

taken judicial notice of. I am of the view that considering the status of the

defendant, the defendant is liable to make available for the use of the plaintiffs,

a new mid segment air-conditioned car of any make, with a driver. There is no

reason to deprive the plaintiff No.1 of the benefit of the said car with driver

which would have been available to her had she been residing in the house of

the defendant. The defendant is accordingly directed to, within one week make

available for the use of the plaintiffs, such a car with driver along with its

running and maintenance expenses, subject to the maximum usage of 250 liters

of petrol/diesel every month. The said car shall remain paked wheresoever the

plaintiffs are residing.

12. The defendant is also directed, as offered by him, to pay directly to the

School of the plaintiff No.1 all dues whatsoever relatable to the plaintiff No.1,

including towards any excursion and/or other activities which the plaintiff No.1

may undertake. The defendant is directed to make the said payments within the

time stipulated therefor and immediately upon receiving intimation thereof

from the plaintiff No.2 or the School Authorities.

13. The defendant is further directed to bear all medical expenses of both the

plaintiffs, of whichever clinics/hospitals the plaintiffs may choose, by making

payment directly to the said clinics/hospitals. The defendant shall be entitled to

do so by taking an insurance policy as already offered by him. It is however

clarified that if the actual expenses exceed the cover under the policy, the same

shall also be borne by the defendant.

14. The defendant shall also bear the expenses of the plaintiff No.1 on school

books, school dress etc. as per actuals. If the same are purchased from the

School itself, the defendant may make the payment directly to the School, else

on production of bills by the plaintiff No.2.

15. That leaves the issue of day to day expenses. Considering the entirety of

the circumstances, I am of the opinion that at this stage, a direction for monthly

maintenance of Rs.75,000/- payable in advance by the 5th day of every

succeeding English Calendar month, would subserve the purpose. Though, the

plaintiffs have claimed a sum of Rs.5 lakhs per month, but there is nothing

before me to show the need of the plaintiffs being for the said amount or the

lifestyle being led by the plaintiffs to be in consonance with the said demand.

Interim maintenance is not intended to enrich the claimant.

16. The last question is of the date from which the interim maintenance is to

be paid, with the senior counsel for the defendant contending that it should be

from the date of the order and the counsel for the plaintiffs contending that it

should be from the date of the application. Though I have given benefit of

doubt to the plaintiff No.2 with respect to her conduct aforesaid, but I am of the

view that the same will have relevance on this aspect. A direction for payment

of arrears of maintenance is again not intended to be asset building. The same is

intended to offset the delays in the disposal of the application. Here, as

aforesaid, even prior to the plaintiff no.2 being permitted to sue as an indigent

person, the defendant had offered monthly maintenance of Rs.50,000/- per

month, but the plaintiff No.2 refused to accept. During the hearing, it has

emerged and it is on record that there are credits of Rs.30,000/- in the account

of plaintiff no.2 and which the counsel for the plaintiffs contends is the loan

taken each month by the plaintiff No.2 for her maintenance. However the

senior counsel for the defendant contends that it is manipulated to build a case.

Keeping the said fact in mind, I am of the opinion that besides, again granting

liberty to the plaintiff No.2 to withdraw the amounts aforesaid deposited by the

defendant till now, the plaintiffs should be awarded a further sum of Rs.5 lakhs

towards arrears of interim maintenance till date. The defendant is directed to

pay the said amount within two weeks from today.

17. Accordingly, the direction for payment of interim maintenance @

Rs.75,000/- as aforesaid shall be applicable with effect from 1st January, 2013,

being the month when arguments were heard, with the maintenance for the

month of January to March, 2013 being payable within two weeks.

18. With the aforesaid directions, the application is disposed of.

RAJIV SAHAI ENDLAW, J.

MARCH 05, 2013/bs..