Suneet Ahuja vs Komal Ahuja
2013 Latest Caselaw 5063 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                               Date of Decision: 06.11.2013
+                FAO NO.44 OF 2013 & CMs 17579-80/2013

       SUNEET AHUJA                                     ..... Appellant
                           Through: Mr. P.Vinay Kumar with Ms.Sadiqua
                           Fatima, Advocates.

                           versus

       KOMAL AHUJA                                 ..... Respondent

                           Through:    Mr. Abhinav Bajaj, Advocate.

       CORAM:
       HON'BLE MR. JUSTICE S. RAVINDRA BHAT
       HON'BLE MR. JUSTICE NAJMI WAZIRI

%      MR. JUSTICE S.RAVINDRA BHAT (Open Court)

1. The present appeal is directed against the order of the Family Court in

HMA No.58/2012 whereby the respondent's (wife's) application for

maintenance under Section 24 under the Hindu Marriage Act was allowed.

2. The facts of the appellant's case are that the appellant and the

respondent got married on 2.1.2001. The appellant i.e. husband is working

as a Naval Officer. The wife claimed that she was harassed and eventually

thrown out of the matrimonial home in November, 2010. The husband

preferred divorce proceedings on the ground of cruelty under Section 13(1)

(ia) under the Hindu Marriage Act, 1955. During the pendency of those

proceedings, the wife moved an application for maintenance pendente lite

which was eventually disposed off by the impugned order. The Family

Court directed the husband to pay Rs.10,000/- per month to the wife in

addition to the amount which was being received by her from the Naval

Authorities which - the Court concluded - was Rs.29,762/-.

3. Learned counsel urges that a reading of the impugned order would

disclose that apart from the necessary facts, the Court also overlooked the

circumstances that the respondent's (wife's) income was not forthcoming in

her affidavit and she did not disclose the amount received by her during the

course of her employment. It is stated that the respondent is a trained

teacher holding B.Ed qualification. Counsel highlighted the fact that even

the Trial Court was sceptical of the wife's contention that she was not in

receipt of any income, stating that such an assertion was unbelievable.

4. It was further argued that the petitioner has left with barely an amount

of Rs.8707/- per month after several deductions including the amounts paid

towards the house building loan and the car loan secured by him. Counsel

relied upon the salary slip produced during the course of the proceedings in

support of the submission. It was stated that the appellant's/husband's

position right now is pitiable as he is virtually forced to rely upon his parents

with whom he lives in Goa.

5. Learned counsel for the respondent/wife argues that the impugned

order does not require to be interfered with and that it subserves the ends of

justice. Counsel relied upon the wife's affidavit to show that not only is she

called upon to maintain herself but also two children who are at a crucial

age. One of them is in the fourth standard and the other is five years of age.

Counsel further highlighted that both the children are not of good health and

considerable amounts have to be spent for their education as well as for their

medical attention. Details of those amounts have been disclosed in the

affidavit. It was argued additionally that the property at Gurgaon has been

vacated and no income is forthcoming from it. If the income potential of the

same had been realised, the appellant/husband would be in a position to pay

even more maintenance. Counsel sought liberty to move the Family Court

for appropriate modification of the order, in view of alleged increase in the

husband's salary.

6. This Court has considered the submissions. The salary slip of the

husband discloses that he is recipient of the gross salary of Rs.1,03,905/- per

month. An amount of Rs.96,000/- has been deducted from his salary; of this

an income tax deduction to the tune of about Rs.13,700/- is made from his

salary. The next prominent items for which deductions are made are for

sum of Rs.16,000/-, which is towards the provident fund advance. It was

conceded before this Court that this advance was utilized to purchase a car

which is now owned by the father of the appellant/husband. Apart from this,

the other two deductions are for the sum of Rs.15,353/- and Rs.1,200/-

towards the house building advance for the acquisition of the Goa property.

Pursuant to the Naval Authority's direction, a sum of Rs.29,762/- each

month is deducted from the salary of the appellant/husband. It is conceded

that the Naval Authority's order is for deduction of Rs.25,000/- each month

and that the balance Rs.4,762/- constitutes the amount payable towards

arrears of such maintenance.

7. The conclusions arrived at after considering the material on record by

the learned Family Court are that the sum of Rs.16,000/- deducted from his

salary cannot be claimed since he utilized it to purchase a car for his father

who cannot be said to be dependent upon the appellant, who himself

superannuated from the defence forces and would be enjoying post retiral

benefits. Concededly, the appellant at present lives with his parents in the

Goa property; therefore the inference drawn by the learned Judge in this

regard is unexceptional. If this aspect would be kept in mind, the sans-

deductions or real income of the appellant-husband would be in the range of

Rs.40,000/- to Rs.45,000/-. It was by his choice that Rs.16,000/- is the

advance repayment to fund a car bought for his father. Likewise, the house

building advance is for a home in Goa, where the appellant resides at present

with his parents. The latter are otherwise residents of Panchkula, and own

property there. That the husband has called them over to live in the house,

foregoing his official quarters and foregoing potential rent of the flat is again

by conscious choice.

8. This Court is of the opinion that having regard to the facts presented -

which appears from the record, no interference to the findings of the Family

Court with regard to the payment of additional Rs.10,000/- is called for.

The court further is of the opinion that since the Gurgaon property is vacant

and can be put to better use, the appellant should be allowed to lease it to

any willing party during the pendency of the proceedings. This would be

without prejudice to the rights and contentions of either party to the

proceedings as to the ownership of such property. The net amount of rent

received is directed to be shared equally by the appellant/husband and the

respondent/wife. In addition, it is open to the respondent/wife to use the

sum of Rs.10,00,000/- by depositing it in some interest bearing security or

fixed deposit and disclose from time to time the particulars thereof. The

interest accruing on such deposit can be suitably appropriated by the

respondent/wife.

9. So far as the arguments with respect to the appellant's/husband's

enhanced salary or benefits are concerned, it is open to the respondent/wife

to move the Family Court for variation of the impugned order dated

11.10.2012 in accordance with law. If such an application is moved, the

same shall be considered on its own merits, after taking into account the

directions of this Court in the present appeal.

10. The appeal is disposed off in the above terms.

S. RAVINDRA BHAT, J (JUDGE)

NAJMI WAZIRI, J (JUDGE) NOVEMBER 06, 2013 ak