Delhi High Court
Mamta vs Dalip on 6 May, 2015
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of hearing and order: 06.05.2015
+ MAT.APP.(F.C.) 113/2014
MAMTA
..... Appellant
Through: Mr. Arvind K. Gupta and Mr. Anshul
Garg, Advocates with appellant in
person.
versus
DALIP
..... Respondent
Through: Mr. Ajay Kumar, Advocate with
respondent in person.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MR. JUSTICE I.S.MEHTA
ORDER
% 06.05.2015
KAILASH GAMBHIR, J.(ORAL)
1. By this first appeal filed under Section 19(1) of the Family Courts
Act, 1984, challenge is to the judgment dated 04.09.2014 passed by the
learned Family Courts, Saket, New Delhi in HMA No. 820/2013 thereby
granting interim maintenance of only Rs.1900/- per month to the appellant.
2. To assail the legality and correctness of the order dated 04.09.2014
passed by the learned Family Courts, Mr. Arun K. Gupta, learned counsel
for the appellant submits that the respondent has deliberately suppressed his
correct income from the learned Family Courts and even from this Court.
Inviting attention of the Court to the copy of the written Agreement placed
on record by the respondent alongwith his additional affidavit, counsel
submits that the respondent is admittedly paying a monthly rent of
Rs.5,500/- for the rented accommodation, i.e., Premises No.1484, Wazir
Nagar, Third Floor, Kotla Mubarak, New Delhi-110003 and if he has been
earning an amount of Rs.8866/-, being a daily wager with National Human
Rights Commission for performing the work of Data Entry Operator on
contract basis, then at least he would not part with such a hefty amount
towards rent for the rented accommodation. Learned counsel for the
appellant also submits that the appellant has specifically stated that the
respondent is running three vegetable shops in Kotla Mobarak, New Delhi
and from the three shops, the respondent has been receiving a huge income
and out of the total income from the three shops and the monthly income
from the said post, he can conveniently pay the monthly maintenance
amount of Rs.20, 000/- per month. Learned counsel for the appellant further
submits that the learned Family Court has also not awarded any amount
towards the litigation expenses.
3. The learned counsel for the respondents on the other hand submits
that the respondent has truthfully and correctly disclosed his income before
the learned Family Courts as well as before this Court and further submits
that the respondent is employed with the National Human Rights
Commission as a daily wager and his monthly income is around Rs.8866/-.
With this meagre income, he can hardly afford to pay the amount of more
than Rs.1900/- which has already been awarded by the learned Family Court
in favour of the appellant. Counsel also submits that out of Rs.8866/-, the
respondent has to pay a monthly rent of Rs.5,500/- for the rented
accommodation, besides meeting expenses for his own day to day
requirements.
4. We have heard the learned counsel for the parties and perused the
material placed on record.
5. Pursuant to the directions given by this Court on the last date, the
respondent has filed an affidavit. This affidavit has been filed by the
respondent in terms of the direction given by the learned Single Judge of this
Court in FAO No.239/1996, titled Kusum vs. Mahinder. In this affidavit,
respondent has reiterated that he has been drawing Rs.403/- per day and
after attending duties for 22 days, his monthly income comes to Rs.8866/-.
He has also stated that he has to meet all the expenses from this amount.
Respondent has admitted the fact that in respect of the rented
accommodation, which he has taken on lease vide lease Agreement dated
30.12.2014 he has been paying a monthly rental of Rs.5,500/- per month.
The respondent has also admitted that he has a mobile with him, but, has not
disclosed the amount he has been paying towards the monthly bills of the
mobile. Although there is no material placed on record by the appellant to
substantiate that the respondent has been running three vegetable shops at
Kotla Mubarak and that he earns a handsome amount from these 3 shops.
But, at the same time we cannot believe that from the said monthly income
of Rs.8866/-, the respondent can afford a rent of Rs.5500/- per month for the
rented accommodation. If the said monthly rent is deducted from his
monthly income of Rs.8866/-, then an amount of Rs.3366/- would be left at
his disposal. And when an amount of Rs.1900/- is further deducted from his
balance amount, then he would be left with a meagre amount of Rs.1466/-.
6. Certainly, the respondent would not be in a position to survive with
the said amount of Rs.1466/-. We are quite surprised that the respondent has
deliberately suppressed his income not only from the learned Family Courts
but from this Court as well. The affidavit filed by the respondent, therefore,
does not truthfully disclose his correct income.
7. As held by the Hon'ble Supreme Court of India in the case of Jasbir
Kaur Sehgal (Smt.) v. District Judge, Dehradun & Others, (1997) 7 SCC 7
that spouses in the proceedings for maintenance do not truthfully disclose
their true income and therefore some guess work on the part of the Court is
permissible. Further the Supreme Court has also observed that "considering
the diverse claims made by the parties one inflating the income and the other
suppressing an element of conjecture and guess work does enter for arriving
at the income of the husband. It cannot be done by any mathematical
precision".
8. In this context, we may also profitably quote a passage from the
judgment rendered Chander Prakash Bodhraj v. Shila Rani Chander
Prakash AIR 1968 Delhi 174 by this Court in wherein it has been opined
thus:-
"An able-bodied young man has to be presumed to be
capable of earning sufficient money so as to be able to
reasonably maintain his wife and child and he cannot be
heard to say that he is not in a position to earn enough to
be able to maintain them according to the family
standard. It is for such able-bodies person to show to the
Court cogent grounds for holding that he is unable to
reasons beyond his control, to earn enough to discharge
his legal obligation of maintaining his wife and child.
When the husband does not disclose to the Court the
exact amount of his income, the presumption will be
easily permissible against him."
9. In these circumstances and taking into consideration the amount of
rent being paid by the respondent and his expenses for attending to his day
to day requirements, his monthly income is assessed at Rs.20,000/- per
month and taking this income as his monthly income, we award a sum of
Rs.7,000/- per month towards interim maintenance of the appellant. We also
award a sum of Rs.15, 000/- towards the litigation expenses of the appellant.
To this extent the order dated 04.09.2014 passed by learned Family Courts,
Saket, New Delhi is modified and we accordingly direct the respondent to
pay the interim maintenance from the date of filing of the application before
the learned Family Courts. We also direct the respondent to pay the amount
of arrears of maintenance alongwith litigation expenses on the next date of
hearing fixed before the learned Family Court.
10. With aforesaid direction, the present appeal stands disposed of.
KAILASH GAMBHIR, J
I.S. MEHTA, J
MAY 06, 2015
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