Delhi High Court

Rakesh Kumar vs Geeta Kaur on 20 May, 2015

$~5
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      MAT.APP.(F.C.) 144/2014 & CM No.19685/2014
       RAKESH KUMAR                                    ..... Appellant
                   Through            Mr. R.K. Gupta, Advocate with
                                      Mr. R.K. Yashwant Singh,
                                      Advocate

                          versus

       GEETA KAUR                                        ...... Respondent
                          Through     Mr. H.C. Sharma, Advocate with
                                      the respondent in person

       CORAM:
       HON'BLE MR. JUSTICE KAILASH GAMBHIR
       HON'BLE MR. JUSTICE I.S.MEHTA
                    ORDER

       %            20.05.2015

KAILASH GAMBHIR, J. (ORAL)

1. Challenge in the instant appeal is to the order dated 24.09.2014

passed by the learned Principal Judge, Family Court, Rohini, Delhi

(hereinafter referred to as the 'learned Family Court') wherein the

learned Family Court has allowed the application preferred by the

respondent under Section 24 of the Hindu Marriage Act, 1955 with the

direction to the appellant to pay a sum of Rs.6,250/- per month towards

her interim maintenance from the date of filing of the application besides

awarding a sum of Rs.3,300/- towards litigation expenses.

2. Assailing the legality and correctness of the impugned order passed

by the learned Family Court, Mr. R.K. Gupta, the learned counsel for the

appellant, submits that there being no basis, the learned Family Court has

arbitrarily assumed and assessed the income of the appellant at

Rs.25,000/- per month and awarded an interim maintenance @ Rs.6,250/-

per month on this income. The learned counsel further submits that the

learned Family Court has also committed an apparent error in taking the

view that the appellant is a skilled person and therefore, must be earning

an amount of Rs.25,000/- per month. He further submits that the learned

Family Court also failed to appreciate that the respondent herself is a

skilled lady possessing diploma in Computer DTP and has studied up to

12th standard and with this technical qualification of the respondent, she is

well capable of earning an handsome amount for her sustenance. The

learned counsel also submits that the respondent is gainfully employed

and is working at a garment shop at Tilak Nagar but she has deliberately

suppressed her income from the learned Family Court and from this

Court as well. The learned counsel also submits that presently the

appellant is unemployed and has no source of income even for his own

sustenance and therefore, he is totally hard-pressed to pay any

maintenance amount to the respondent.

3. The present appeal is strongly opposed by Mr. H.C. Sharma, the

learned counsel for the respondent. He submits that the appellant is

earning a total income of Rs.65,000/- per month as he is working as a

Senior Software Designer (Engineer) in a factory of computer designs of

all kinds of designer soles of the shoes and sandals in Gurgaon. The

learned counsel also submits that the appellant is an owner of two TSRs

(3-wheeler scooters) which he gives on contract basis to other persons

and from this source also he earns an amount of Rs.20,000/- per month.

The learned counsel also submits that the appellant is the only son of his

parents and is a joint owner of property bearing No.D-50, Jaswant

Colony, Budh Vihar, Phase-II, Delhi. The learned counsel also submits

that the appellant is in the habit of suppressing his correct and true

income from the Court. Earlier also an order under Section 24 of the

Hindu Marriage Act, 1955 was passed against him in a petition preferred

by the appellant under Section 10 of the Hindu Marriage Act, 1955 and

by the order dated 08.07.2010 passed by the learned Family Court, an

interim maintenance of a sum of Rs.5,000/- was awarded as an interim

maintenance assessing the income of the appellant at Rs.20,000/- per

month. The learned counsel further submits that the said order dated

08.07.2010 was challenged by the appellant before this Court in C.R.P.

No.157/2010 and the said petition was dismissed by the learned Single

Judge of this Court vide order dated 20.08.2010 while upholding the

order passed by the learned Matrimonial Court. He further submits that in

the order passed by the learned Single Judge of this Court it was observed

that the appellant had been trying to conceal his correct income from the

Court. The learned counsel also submits that the appellant has been

taking divergent stands as in his reply to the application under Section 24

of the Hindu Marriage Act, 1955 he had disclosed his monthly income as

Rs.6,000/- and when his statement under Section 165 of the Indian

Evidence Act, 1872 was recorded then he disclosed his income as

Rs.7,200/- and now before this Court he has taken a stand that he is

unemployed and has no source of income. Based on these submissions,

the learned counsel for the respondent strongly urged that the present

appeal being based on false and vexatious facts be dismissed with heavy

costs.

We have heard the learned counsel for both the parties and have

perused the material on record including the order dated 24.09.2014

which is under challenge.

It is a matter of common knowledge that in maintenance

proceedings the spouses do not come forward to disclose their true and

correct income. The suppression on the part of the earning spouse about

his/her correct income makes the task of the Court quite difficult. A non-

earning spouse generally inflates the claim of maintenance so as to put a

pressure on the earning spouse so as to bring him/her to come to the terms

while on the other hand the earning spouse, who mostly is the husband,

would make every possible effort to suppress his correct income from the

Court so that the wife gets deprived from getting sufficient amount to

sustain herself. The Hon'ble Supreme Court in the case of Jasbir Kaur

Sehgal (Smt.) v. District Judge, Dehradun and Ors., (1997) 7 SCC 7

thus gave a solution to the Courts by suggesting that the Court must apply

its own mind taking in view the totality of the facts and decide the income

of the earning spouse by resorting to some guess work. While taking this

view the Hon'ble Supreme Court had also put a note of caution that such

a guess work should not be arbitrary, whimsical or fanciful.

In this context, we may also profitably quote a passage from the

judgment in the case of Chander Prakash Bodhraj v. Shila Rani

Chander Prakash AIR 1968 Delhi 174 by this Court, wherein it has been

opined that:

"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- bodied person to show to the Court, cogent grounds for holding that he is unable to, for reasons beyond his control, 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."

It is also a settled legal position that the non-earning spouse has a

right to enjoy equal status as is being enjoyed by the earning spouse and

to live a life of dignity according to the status of the earning spouse.

As pointed out by the learned counsel for the respondent, earlier

also the order of maintenance dated 08.07.2010 passed by the learned

Family Court in a petition preferred by the appellant under Section 10 of

the Hindu Marriage Act, 1955 was challenged by the appellant before this

Court. By order dated 20.08.2010, the learned Single Judge of this Court

had dismissed the appeal preferred by the appellant and while upholding

the order passed by the learned Family Court made an observation that

the appellant has been trying to conceal his true and correct income.

Relevant part of the said order is reproduced as under:-

"Since the petitioner concealed his income from the Court, therefore, in such circumstances the Court taking a conservative estimate arrived at the conclusion that the monthly salary of the petitioner would be Rs.20,000/-. The Court in the absence of any proof did not believe that the petitioner was running 2 three wheeler scooters. Taking into account the monthly income of the petitioner at Rs.20,000/- p.m. and after deducting a sum of Rs.5,000/- p.m. on the maintenance and education related expenses of his minor son

and after deducting 2/3rd of the remaining amount i.e. Rs.15,000/- for his own maintenance and day to day expenses the Court directed the petitioner to pay a sum of Rs.5,000/- to the respondent for her maintenance and for her residential requirements. Photocopy of the salary certificate now placed on record by the petitioner is not on any letterhead of the said factory. The same also does not bear any date and further it also does not disclose as in what capacity he has put his signature. Hence no authenticity can be attached to the said photocopy of the salary certificate placed on record by the petitioner. It is apparent that the petitioner has tried to conceal his income."

Before the learned Family Court as well as in the appeal, the

appellant has not come forward to disclose his correct income. The

appellant has also not placed on record any evidence in the form of

documents to show his employment with M/s D.K.S. Engineering Works,

as per the stand taken by him in his statement recorded under Section 165

of the Indian Evidence Act, 1872.

The earlier certificate, which was filed by the appellant in reply to

the application under Section 24 of the Hindu Marriage Act, 1955 is the

same certificate which was earlier filed by the appellant in the

proceedings under Section 10 of the Hindu Marriage Act, 1955 and the

learned Single Judge commented on the said document as being the most

unreliable piece of evidence.