Delhi High Court
Manav Minocha vs Nishtha @ Deeksha on 11 February, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 11.02.2014
+ CM(M) No.1304/2013 & CM APPL.19378/2013
MANAV MINOCHA ..... Petitioner
Through: Mr. P. N. Dhar, Adv.
versus
NISHTHA @ DEEKSHA ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
% MR. JUSTICE NAJMI WAZIRI
The petitioner is aggrieved by an order dated 5.7.2013 whereby an
amount of Rs.16,500/- has been directed to be paid by him to the
respondent/wife under Section 24 of the Hindu Marriage Act as
maintenance. The respondent/wife had moved an application on
15.9.2010 under Section 24 of the Hindu Marriage Act seeking
maintenance pendent lite @ Rs.50,000/- per month w.e.f. 6.11.2009 and
an amount of Rs.50,000/- towards litigation expenses. After considering
the reply of the husband/non-applicant/the present petitioner and the
affidavit filed by him, the Trial Court was of the view that the counsel for
the non-applicant/husband had himself filed a salary slip for the month of
December, 2012 which showed him to be working with ibibo WEB PVT.
LTD as Senior Manager-Operations. The salary slip showed the Gross
Salary of the husband as Rs.75,623/- per month and after deduction the
net salary was Rs.66,623/-. The husband showed an
expenditure/deduction of Rs.21,432/- towards EMI for home loan. The
Court was of the view that only involuntary deductions are required to be
deducted for determining the disposable income. He relied upon
judgment of this Court in Pushpa Kathji & Ors. vs. Mr. Amit Mohan S.
Dahiya in IA Nos.1613/95 and 740/96 in IPA No.5/95. The Court was
further of the view that while it may be bounden duty of a son to maintain
his old aged parents but it is equally his bounden duty to maintain his
wife who had no income and otherwise totally dependent upon the
husband, in the present case due to the husband's recalcitrance in
providing her financial support she had become totally dependent upon
her paternal family. The Trial Court took into consideration the guiding
factors laid down in Bharat Hedge vs. Saroj Hedge, 140 (2007) DLT 16
to arrive at a figure which would commensurate with the lifestyle enjoyed
by the husband. The Court was conscious that in such proceedings the
claimant spouse to exaggerate the income of the non-dominant spouse
while trying to understate their own income. Although the applicant/wife
had alleged that the husband was maintaining two cars and was leading
luxurious life which included membership of clubs and other places of
entertainment and that he was also maintaining huge amount of bank
balance, she had failed to place any material on record to substantiate her
claim. On the other hand, the husband had argued that the wife was
sufficiently qualified; she was earlier doing a job of consultancy and was
earning a handsome salary; therefore was capable to maintain herself. He
had relied upon a photocopy from a facebook page to contend that she
was employed at Arwachin Bharti Bhawan Sr. Sec. School, Vivek Vihar,
New Delhi to show that she was working as a teacher in the said school.
However, during the course of proceedings, the Trial Court
recorded the statement of the applicant/wife under Order 10 CPC wherein
she categorically denied her employment at any point of time with the
aforesaid school. She submitted that she had worked as a Counsellor
with Mother's Pride Vivek Vihar School in November, 2009 last but she
was jobless at the time when she had filed the petition under Section 24.
She admitted that she was also known as Diksha. The Trial Court was of
the view that the Section 24 proceedings before it were summary in
nature and would be modified subsequently upon changed circumstances
being brought before the Court by either party. Counsel for the petitioner
submits that the Trial Court was seriously erred in not taking into account
the document filed by them apropos the employment of the wife by
Arwachin Public School.
This Court is of the view insofar as the applicant/wife had denied
her employment with the aforesaid school in a statement under Order 10
CPC in a section proceedings, nothing remained to be examined at that
stage. Besides the educational and technical qualification of a person is
not sufficient to determine the employability of the person. Employment
would depend upon the circumstances and the requirement of the
employer and the suitability of the candidate to the job and such other
relevant factors from the employer's perspective. The employment
market is not necessarily employee dictated. By its very nature,
consultancy work is specific project and often for a limited period. The
wife had categorically stated that she had never worked for Arwachin
Public School. The document relied upon by the petitioner/husband has
only shown a correspondence by one Diksha Khaneja regarding "how a
child may do well by practising the portion taught everyday in the class
as well as at home". This does not prove that this Diksha is the same
person as the respondent/wife, besides the wife had already stated before
the Court that she had never worked in the said school. Therefore, the
petitioner's contention that because of some previous consultancy she
should be assumed to be in consultancy all along and earning well, is
erroneous and untenable. The Trial Court applied the criteria laid down
in Annurita Vohra vs. Sandeep Vohra, 2004 (110) DLT 546 to apportion
the earnings of the husband for maintaining the members of a family. It
came to the conclusion that out of Rs.66,000/-, one-fourth should go to
the wife for her maintenance, effective from the date of the filing of the
application for maintenance, and Rs.10,000/- towards legal expenses. It
is settled law that what is to be seen in an application under Section 24 of
Hindu Marriage Act is the position of the parties obtaining, on the date
the application was filed i.e. the need in preasenti has to be ascertained.
The Trial Court took into consideration the earning of the petitioner at
Rs.75,623/-, coupled with the fact that the wife had no source of income.
The Trial Court based its decision upon the record available before it and
its conclusion is a plausible view in law. There is no ground for
interference with the impugned order. The petition is without merit and
is accordingly dismissed.
NAJMI WAZIRI
(JUDGE)
February 11, 2014
