Smt [email protected] vs Sh Shyam Tandon
2015 Latest Caselaw 1818 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+                          C.M. (M) No.525/2013

                                         Decided on : 3rd March, 2015

SMT [email protected]                                  ...... Petitioner
            Through:            Ms. Monika Arora, Advocate.

                       Versus

SH SHYAM TANDON                                   ...... Respondent
            Through:            Ms. Meenakshi Lekhi, Mr. Harish
                                Pandey & Mr. Jitendra Tripathi, Advs.

                                  WITH

+                      C.M. (M) No.883/2013


SH SHYAM TANDON                                   ...... Petitioner
            Through:            Ms. Meenakshi Lekhi, Mr. Harish
                                Pandey & Mr. Jitendra Tripathi, Advs.

                       Versus

SMT [email protected]                                  ...... Respondent
            Through:            Ms. Monika Arora, Advocate.

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

V.K. SHALI, J.

1. These are two petitions filed by the petitioner under Article 227 of

the Constitution of India assailing the order dated 1.10.2012 by virtue of

which the petitioner/wife [in C.M. (M) No.525/2013] has been granted an

ad interim maintenance of Rs.35,000/- per month during the pendency of

the divorce petition apart from litigation expenses to the tune of

Rs.60,000/-. The second petition [C.M. (M) No.883/2013] has been filed

by the respondent/husband challenging this very order. The wife wants

enhancement while as the husband wants setting aside of the said order.

2. I have heard the learned counsel for the petitioner/wife as well as

Ms. Meenakshi Lekhi, the learned counsel for the respondent/husband on

the merits of the matter.

3. The main contention of the learned counsel for the petitioner has

been that the learned trial court has failed to exercise its jurisdiction under

Section 24 of the Hindu Marriage Act by not granting ad interim

maintenance @ Rs.95,000/- per month keeping in view the status of the

respondent as well as the monthly income of the respondent/husband

from his business activities. The learned counsel for the petitioner/wife

has also drawn the attention of the court to the various immovable

properties owned by the respondent/husband apart from his business

interest and the fact that the respondent had filed Income-Tax Return to

show his monthly income of Rs.5,50,000/- per month in the year 2003-

2004 which in any case would have increased over a period of time and

not decreased. While as the petitioner/wife has been paid only a paltry

sum of Rs.35,000/- per month for the purpose of maintaining herself

although she had prayed for making a provision for her dwelling house

also.

4. Ms. Meenakshi Lekhi, the learned counsel for the

respondent/husband has tried to justify the ad interim maintenance order

having been passed in favour of the petitioner on the basis of the cross-

examination of the petitioner herself where she is purported to have

admitted that her monthly expenses for running the household are to the

tune of Rs.35,000/- to Rs.40,000/- and, therefore, it has been essentially

contended that the grant of ad interim maintenance by the learned

Additional District Judge was perfectly in line with the cross-examination

of the petitioner though it was conducted after the impugned order having

been passed. Though the respondent/husband has filed an independent

petition for setting aside the impugned order but complete setting aside of

the impugned order was never pressed by Ms. Lekhi.

5. I have carefully considered the submissions of the respective sides

and have gone through the record. Before dealing with the respective

contentions of the parties, it may be pertinent here to given brief

background leading to the passing of this order.

6. It is not in dispute that marriage between the parties took place on

8.7.1991 according to Hindu rites and ceremonies. The

respondent/husband has filed a divorce petition seeking dissolution of

marriage under Section 13-1 (1a) & (1b) of the Hindu Marriage Act,

1955, that is, on the ground of cruelty and desertion. During the

pendency of the aforesaid divorce petition, the petitioner/wife filed an

application for grant of ad interim maintenance. It was stated in the

application that the petitioner has studied upto 9 th standard and she had to

leave her studies on account of her marriage. It was stated that she does

not own any movable or immovable property nor is she having any

independent source of income. It was alleged by her that she has only

one savings bank account bearing No.424816 in Bank of India, Janpath

Branch, New Delhi where also the money is being deposited by the

respondent/husband of and on. She has stated that she has jewellery

articles which consist of one pair of gold kara, earring and a nose pin.

Apart from that she does not have any other jewellery article. There is

one farm house owned by her on the Noida Expressway for which the

funding is stated to have been done by the respondent himself, who is

stated to be in possession of the title deeds also.

7. The petitioner has stated that presently she is living in a rented

accommodation along with her two brothers at H. No.1780, Pratap Gali,

Chuna Mandi, Pahar Ganj, New Delhi-110055. The petitioner has also

stated that so far as the respondent is concerned, he is a man of means and

owns following properties :-

"I) Property No.5, Tansen Marg, New Delhi, having market value of Rs.10 crores or above.

II) Residential apartment in the area of Golf Link, New Delhi valued at Rs.15 crores approximately.

III) One shop/commercial space in Noida Export Promotion Zone valued at Rs.3 crores approximately.

IV) Shop No.4284, Main Bazar, Pahar Ganj, New Delhi valued at Rs.4 crores approximately.

V) Shop No.4286, Main Bazar, Pahar Ganj, New Delhi valued at Rs.4 crores approximately.

VI) Office space at Amba Vatta Complex, Mehrauli, New Delhi worth Rs.5 crores.

VII) Farm house situated at Noida Express Highway, UP developed by DPL Farms having an area of 2000 square yards purchased by the non-applicant in the name of the applicant. The title deeds as well as its possession are with the non-applicant.

VIII) Three bed room flat at second floor of property No.5/90, East Patel Nagar, New Delhi worth Rs.3 crores.

IX) One luxury car make Toyota Camary valued at Rs.21 lacs approximately. One SUV make Toyota Innova and a small car Hyundai i10."

8. It is also alleged that the respondent/husband is running business of

jewellery and has been filing his returns which show that his monthly

income is Rs.5,50,000/-. The petitioner has also dealt with the aspect of

voluntary disclosure of black money having been made by the respondent

to the tune of Rs.2 crores apart from searches which were conducted in

the year 2003-2004 by the Directorate of Revenue Intelligence and/or by

the Enforcement Directorate at his residence leading to the recoveries of

various monies.

9. She has stated that as she has no independent source of income, she

may be given a monthly maintenance @ Rs.95,000/- apart from making a

provision for her residence and grant of litigation expenses to the tune of

Rs.1,10,000/-.

10. The respondent has filed his reply and denied the factum of owning

moveable or immovable properties. He has stated that he is only an

employee of a jewellery concern wherefrom he gets monthly income of

approximately Rs.25,000/-. He has denied the voluntary disclosure

purported to have been made by him or the searches having been

conducted at his residence. He has stated that his monthly income is a

sum of Rs.87,000/- approximately which includes salary of Rs.25,000/-

per month plus interest income and other income also. It has been stated

by the respondent that the petitioner is a patient of Schizophrenia and

suffers from acute depression disorder which has resulted in filing of the

present petition for divorce. He has tried to justify the grant of

maintenance to the petitioner to the tune of Rs.35,000/- as sufficient in

order to meet her expenses. So far as the business of the respondent is

concerned, it has been stated by him that he has suffered losses because

of which he had to take up the employment.

11. The learned trial court, after hearing the arguments, found holes in

the story put forward by the respondent and observed that the stand taken

by the respondent is not truthful. It has also been observed by the court

that the respondent is contradicting his own statement with regard to his

income and as a matter of fact, he has not been giving his true income so

that an appropriate order could be passed. In this regard, the learned trial

court has specifically referred to the fact that the respondent is living in a

Golf Links property which he has mortgaged with the bank for worth

Rs.10 crores; he has a commercial stall allotted to him at Greater Noida

and the fact that he is reflecting his monthly income as more than Rs.5

lacs per month in the Income-Tax record. Despite these observations

having been passed by the court, the trial court has granted a meager sum

of Rs.35,000/- as monthly ad interim maintenance to the petitioner/wife

apart from litigation expenses of Rs.60,000/-.

12. I have gone through the order passed by the learned Additional

District Judge. There is no dispute about the fact that reading of the order

passed by the learned Additional District Judge clearly shows that the

respondent has not been truthful in revealing his correct income and it is

only a false statement made by the respondent that he has suffered losses

in the business and because of which he had to take an employment @

Rs.25,000/- per month. It is also not correctly reflected by the respondent

as to how he is earning other monies by way of interest or otherwise,

which according to him, add up his monthly income to the tune of

Rs.87,000/-. This clearly shows that the respondent is not forthcoming

with regard to his actual income before the court so that an appropriate

order with regard to ad interim maintenance could be passed.

13. Reply of the respondent with regard to the factum of his owning

immoveable properties is equally vague. The petitioner has specifically

made an averment giving the details of the properties owned by the

respondent. The respondent has not specifically denied that he does not

own any of these properties. On the contrary, the details of the properties

furnished by the petitioner clearly shows that all these properties are

prime properties which are not only owned but must be a source of

substantial amount of monies and income for the respondent which is also

not being reflected correctly before the court or rather the earnings from

these properties is being withheld from the court. The petitioner's stand

is truthful inasmuch as she has stated that even a farm land has been

purchased in her name which she could have claimed to be her own but

she has very candidly stated that the funding for the said farm house,

which is nearly 2000 square yards is done by the respondent himself. The

residential address of the respondent in Golf Links further confirms that

he is a man of means and of status so far as the finances are concerned

and, therefore, taking his income to be Rs.5,50,000/- per month on the

basis of his Income-Tax Returns was perfectly justified by the learned

Additional District Judge. However, while granting maintenance to the

petitioner, the learned Additional District Judge has fallen into a serious

error of granting only a sum of Rs.35,000/- per month which happens to

be almost 1/15th of his monthly income of Rs.5,50,000/-. This part of the

order which grants only a sum of Rs.35,000/- to the petitioner, after

taking the amount of earnings of the respondent to a sum of

Rs.5,50,000/-, has caused immense injustice to the petitioner apart from

the fact that the learned Additional District Judge has failed to exercise

his jurisdiction to grant ad interim jurisdiction in accordance with the

well-settled principles of law enumerated in number of judicial

pronouncements. I do not feel the necessity of citing any case law on the

subject which is replete with instance where the wife has been given the

maintenance ranging from 1/5th to 1/3rd depending on the income of the

husband, status of the parties and the standard of living to which the wife

is accustomed after marriage.

14. The petitioner admittedly had married the respondent in the year

1991. The divorce petition has been filed in the year 2010. The

respondent has not disputed that he is living in Golf Links, therefore, the

petitioner had naturally been accustomed to the living standard which the

respondent was maintaining. Obviously, the very fact that he was living

in Golf Links with the present petitioner clearly shows that the petitioner

is entitled to the same standard of living which she was entitled to live

along with the respondent before the respondent filed the divorce petition

on whatever grounds. If that is taken as a basic standard of living, the

petitioner is entitled to live in an accommodation of a comparable

standard which certainly is not Chuna Mandi in Pahar Ganj which is a

down town slum area in comparison to an up-market posh area of Golf

Links. This is in itself would entitle the petitioner to a sizeable amount of

money to take the house on rent in Golf Links or in its immediate vicinity

like Sunder Nagar, Jor Bagh or Defence Colony, etc., therefore, this

factor has been omitted to be considered by the learned Additional

District Judge.

15. The respondent has also not disputed specifically any of the

immovable properties owned by him and thus, that is also a source of his

income apart from showing that he is a man of status.

16. The petitioner is also entitled to various other facilities in order to

maintain herself, namely, health care, medicines, day-to-day upkeep, etc.

Keeping in view all these facts, I feel that the demand of the petitioner to

have ad interim maintenance @ Rs.95,000/- per month especially in the

light of the fact that the respondent himself had admitted his monthly

income to be Rs.5,50,000/-, comes less than 1/5th of his monthly income

and what has been granted to her is much less than that.

17. The contention of Ms. Lekhi, the learned counsel for the

respondent that the petitioner has herself admitted in her cross-

examination that she entails an expense of Rs.35,000/- to Rs.40,000/- per

month or even Rs.50,000/-, is no ground to deny the maintenance @

Rs.95,000/- per month by way of ad interim maintenance. The reason for

this is that while exercising supervisory jurisdiction by the High Court

under Article 227 of the Constitution of India, it does not have to take

into consideration only the subsequent facts. It only has to take into

consideration the fact and the circumstances in the background of which

the order was passed. At the time when the order was passed in the

month of October, 2012, the respondent had not cross-examined the

petitioner inasmuch as her statement even was not even recorded.

Therefore, the cross-examination of the petitioner at this point of time,

which is a matter of record, cannot be taken into consideration in order to

justify an order which has been passed almost more than two years back.

18. This kind of analogy does not persuade the court with the

submission made by Ms. Lekhi. I, therefore, feel that the petitioner has

been grossly subjected to injustice by passing an order on ad interim

maintenance @ Rs.35,000/- only. As a matter of fact, it has resulted in

failure of justice because the learned trial court has failed to exercise the

jurisdiction according to settled principles of law which is vested in it.

She ought to have been granted full maintenance claim by her, which is to

the tune of Rs.95,000/- per month apart from litigation expenses to the

tune of RS.1,10,000/-. The petitioner has in comparison been granted a

sum of Rs.35,000/- per month as ad interim maintenance and litigation

expenses to the tune of Rs.60,000/-.

19. The next question which would arise is the date from which this ad

interim maintenance must be paid at an enhanced rate of Rs.95,000/- per

month. Obviously, when the maintenance order is passed, be that ad

interim, it has to relate back to the date from the date of the application.

In the instant case, the order has been passed on 1.10.2012 and obviously,

the application must have been filed much earlier, therefore, the petitioner

is entitled to differential amount between Rs.95,000/- per month and

Rs.35,000/- per month from the date of application till 28.2.2015 within a

period of one month from today. So far as the differential in the litigation

expenses is concerned, that shall also be paid within a period of one

month from today which is to the tune of Rs.50,000/-.

20. The next question which arises for consideration is that the

respondent has shown that the petitioner is admitting in her cross-

examination that her monthly expenses are only to the tune of Rs.35,000-

40,000/- per month. If that be so, that can be a consideration for the

respondent to seek modification of an ad interim order which the court

will consider in its proper perspective after inviting the reply from the

petitioner/wife but that can be done by the learned trial court only when

an application in this regard is filed by the respondent/husband.

21. At this point of time, the court is not inclined to accept that as a

plea for scuttling the ad interim maintenance of the petitioner on that

subsequent fact. It is also not clear as to in what context the petitioner

has admitted in her cross-examination, the quantum of expenses incurred

by her, whether it takes care of her residence, medical expenses also or

not. All these aspects can be considered by the trial court if and when an

application seeking modification of the order of the ad interim

maintenance is filed before the trial court which, I hope and trust, would

be considered without being influenced by any of the observations which

have been passed in the present order. But one precondition is made for

consideration of that application, that is, before any such application is

entertained on behalf of the respondent seeking modification of an ad

interim maintenance order passed by this court, the petitioner shall be

paid all the arrears accruing to her from the date of the application in

terms of the present order including the litigation expenses and once these

arrears are paid then only an appropriate application in this regard can be

filed by the respondent/husband and if filed, it will be considered by the

trial court in accordance with law. The learned trial court without being

influenced by any of the observations passed by this court in this order,

will deal with the same in accordance with law.

22. With these observations, the trial court order is modified and the

petitioner is granted an ad interim maintenance @ Rs.95,000/- per month

and the litigation expenses to the tune of Rs.1,10,000/- as prayed by her

till the time the trial court considers an application filed by the respondent

herein. The arrears, if any, on account of the ad interim maintenance and

the litigation expenses, shall be cleared within a month from today.

23. In view of the aforesaid directions, both the petitions are disposed

of.

24. Expression of any opinion made hereinbefore shall not be deemed

to be an expression on the merits of the case.

25. A copy of this order be sent to the learned trial court for

information and necessary action and a copy be also given dasti to the

learned counsel for the parties.

V.K. SHALI, J.

MARCH 03, 2015 'AA'