Sudhir Damodaran vs Anastatius Cheryl Damodaran
2013 Latest Caselaw 4835 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                              DECIDED ON: 22.10.2013

+                        MAT.APP. (F.C.) 11/2013
                         CM APPL.9707/2013
      SUDHIR DAMODARAN                             ..... Appellant
                  Through: Ms. Gurmeet Bindra, Advocate.

                         versus

      ANASTATIUS CHERYL DAMODARAN                  ..... Respondent

Through: Ms. Malvika Rajkotia with Mr.Vaibhav Vats, Advocates.

CORAM:

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

MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)

1. In this appeal under Section 19 of the Family Court's Act preferred by the husband, an order made under Section 36 of the Special Marriage Act directing the award of `1 lakhs per month as maintenance to the respondent wife has been challenged.

2. The facts of the case are that the parties to the dispute solemnized their marriage under the Special Marriage Act on 10.07.1985 at Mumbai. They have two daughters. The wife claimed that the husband was indulging in adulterous relationship resulting in his moving out of the matrimonial house. It is an admitted fact that the husband is an Executive Director of M/s Cat Vision Products

MAT.APP.(F.C.)11/2013 Page 1 Limited and also its shareholder to the tune of 20%. The wife was employed as a Manager on a salary of `60,000/- per month by the same company. The husband moved a petition for divorce claiming that the wife had inflicted cruelty upon him. In the course of these proceedings, the wife moved an application under Section 36. By the impugned order, after considering the material on record as well as submissions of the parties, the Trial Court directed the award of `1 lakh per month payable to wife.

3. Ms. Gurmeet Bindra, Advocate urges that the Trial Court fell into error in concluding that the husband in effect enjoyed a salary of about `6 lakhs per month. She submitted that the documents on record established that at best his salary income to be around `33 lakhs per annum. In this regard, she relied upon the documents such as salary statements issued by the husband's employer; the relevant income tax returns for some years filed before the Court and urged that the so called lavish life style said to be led by the husband in fact is an exaggerated view of the Trial Court. Learned counsel also highlighted that the wife was, at the time the application made, enjoying the income of `60,000/- per month. However, her employment was subsequently terminated in March, 2010. Learned counsel particularly placed reliance upon the latest salary statements issued by the husband's employer to the effect that net monthly amount payable to him was `1,05,600/- as on May, 2013, after payment of income tax and deductions to the Provident Fund. Learned counsel also submitted that the Trial Court overlooked the circumstance that upon severance of the wife from the employment,

MAT.APP.(F.C.)11/2013 Page 2 she was given `3,36,157/-.

4. Learned counsel for the respondent wife urged the Court to affirm the impugned order. It was submitted that the Trial Court took into consideration all the relevant materials and also applied the law correctly having regard to the judgment of the Court reported as Bharat Hegde v. Saroj Hegde 140 (2007) DLT 16. It was submitted that the kind of life style that the husband lives belies the submission that he is not in possession of any income in excess of `1,05,600/- per month. Learned counsel submitted that considerable amount of expenditure borne by the company which employs the husband in fact amounts to income which supports and uplifts his standard of life. It is submitted that a sum of `65,000/- per month paid towards the rent free accommodation and enjoyed exclusively by the husband is in fact purely to ensure comforts of a respectable accommodation for family of the husband.

5. Learned counsel stressed upon the fact that the wife's erstwhile employment with M/s Cat Vision Products Ltd. was part of the arrangement that the husband enjoyed with that company. She submitted in this regard that other similarly placed employees and functionaries such as Managing Director's wife too was the beneficiary of an identical employment; she continues to work as a Manager with the company and is enjoying `60,000/- per month as salary whereas the wife has been deprived the such benefit. Counsel submitted that at this age after more than 27 years of marriage, the wife cannot be expected to support herself and the husband's attempt to portray her as capable of earning even to the extent of stating that

MAT.APP.(F.C.)11/2013 Page 3 she is recipient of money from her daughter, only highlights her helplessness.

6. This Court has carefully considered the submissions of the parties, and the judicial record. The Trial Court took into consideration the material placed before it such as the income tax returns, the affidavit disclosing the income, assets and liabilities of the parties, salary slips produced before it by the husband, etc. Concluding that the sum of `1 lakh was a fair amount to be paid by the husband to the wife, the Court took into consideration not only his present income but also the income for the previous three years. In this connection, the Trial Court noticed that in 2009, the husband's annual remuneration was `42 lakhs; likewise the income for the succeeding years was taken into account. The husband in the present appeal highlights that the net salary enjoyed by him is only `1,05,600/-. This Court is unable to subscribe to that reasoning. The salary statement and the other documents produced on the record issued by the husband's employer clearly show that he was enjoying an income of around `42 lakhs per annum at the time when the trouble between the parties arose. The appellant's counsel had urged that the Court should take into consideration the comparative table relied upon in the appeal where it is disclosed that the husband's salary for the year ending 31.03.2012 was `16,48,800/- annually and the value of perquisites was `17,79,468/- making a grand total of `34,28,268/-. Even if this calculation were taken into consideration and due weightage given, this Court notices that the perquisites value of the income cannot be excluded for the purposes of arriving at what

MAT.APP.(F.C.)11/2013 Page 4 would be the just maintenance figure. The Court notices that certain other expenditure such as the LTC claims, etc. also would enure in favour of the wife and other family members. Having regard to these and the other details of expenditure which were part of the record, this Court is of the opinion that the Trial Court's findings cannot be faulted.

7. This Court also is of the opinion that there is considerable force in the wife's contentions that her employment by M/s Cat Vision Products Limited was part of the arrangement that the husband had. That seems to be justified by the fact that the Managing Director's wife also continues into the employment. Such a circumstance naturally has to be taken into consideration and the inference that husband had some say in the termination of his wife's employment after the trouble arose would be, therefore, reasonable, if not inevitable. Having regard to these conspectus of circumstances and the limited role the Court would exercise in appellate review over interim determination such as the one in the present case, this Court is of the opinion that the appeal lacks merit. The appellant husband is directed to clear the arrears of maintenance payment and ensure that the same be made over to the wife within the next six weeks. It is open to the respondent to approach the Trial Court to take appropriate proceedings towards realisation of said arrears.

8. Ms. Gurmeet Bindra, Advocate repeatedly emphasized that the wife was in receipt of `3,36,157/- at the time of severance of her employment in March, 2010. This Court is unimpressed with the submission. Even if the employment were to be considered as

MAT.APP.(F.C.)11/2013 Page 5 unrelated to the matrimonial dispute - which it is not - the submission is unacceptable. After all the wife lived with the husband for about 25 years till they parted their ways; she also worked in the company for more than 13 years. In these circumstances to even urge this as a ground for adjustment would not be appropriate.

9. The appeal is accordingly dismissed with costs quantified @ `50, 000/- (Rs. Fifty thousand) to be paid within the said period of next six weeks.

S. RAVINDRA BHAT (JUDGE)

NAJMI WAZIRI (JUDGE) OCTOBER 22, 2013 /vks/

MAT.APP.(F.C.)11/2013 Page 6