Delhi High Court
Anirudh Mishra vs Indu Mishra on 8 April, 2016
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*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAT.APP.(F.C.) 46/2016 & CM Nos.13066-67/2016
% Date of decision : 8th April, 2016
ANIRUDH MISHRA ..... Appellant
Through: Mr. Anil Kr. Pruthi, Adv.
with appellant
versus
INDU MISHRA ..... Respondent
Through: None
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE I.S.MEHTA
Judgment (Oral)
Gita Mittal, J
1. The appellant has assailed the order dated 26th February,
2016 passed by the Family Court, Rohini Courts, North-West
granting the application under Section 24 of the Hindu Marriage
Act, 1955 filed by the respondent-wife seeking interim
maintenance. The parties to the instant case were married on 14 th
February, 2013 and there is no issue from the wedlock. It was
urged that the respondent was unemployed. The petition under
Section 13(1)(ia) of the HMA was filed by the appellant-husband
in August, 2014. The application under Section 24 of the Hindu
Marriage Act came to be filed on 27th October, 2014 inter alia on
the allegations that the respondent-wife had no source of income
and that the appellant-husband was giving tuitions and earning
more than `1 lakh per month. The respondent had claimed
maintenance @ `40,000/- per month and litigation expenses to the
tune of `50,000/-. The appellant had disputed the respondent's
claim of his income and claimed that he was only earning sum of
about `10,000/- from tuitions. He had admitted that he was owning
a Swift car which he has claimed to have purchased on loan from
Axis Bank; one Saving Bank Account; one mobile phone; a
telephone and one HP Laptop (purchased on loan from Bajaj
Allianz Ltd.). On a consideration of the materials placed before the
court, the learned Trial Judge was compelled to deduce the
earnings of the appellant from his expenditure. For expediency, we
extract hereunder the analysis of the learned Judge so far as the
income and expenditure of the appellant is concerned :-
"15. The non-applicant, during the course of
hearing admitted that at the time of marriage with
the applicant/respondent he was working with
couple of coaching institute and imparting tuitions
in Chemistry subject. He further submitted that
presently he was taking private tuitions and not
associated with any coaching institute. HE has not
placed on record any documentary evidence
regarding his income when he was associated with
coaching institutes. However, a study of his bank
account statement for the period February, 2013
onwards indicates that cash deposits of sums in the
range of 20,000/- to 50,000/- were made at
irregularly intervals. Therefore correct assessment
of his income can not be made. However, a study
of his expenditure pattern indicates that he has been
paying EMI for repayment of car loan @ Rs.6334/-
per month. During the period of May, 2013 to
June, 2014 he has withdrawn on an average
roughly Rs.30,000/- each month by way of ATM or
by debit card shopping. Though, the amount ranges
from couple of thousands to Rs.60,000/-. This
court has of course ignored withdrawals in the
month of February, March 2013 and July, 2014,
when the withdrawal was in the range of
Rs.90,000/- each month. An assessment can thus
be made that during the period of parties living
together i.e. February, 2013 to August 2014,
petitioner had withdrawn on an average amount of
Rs.30,000/- per month towards his expenditure.
Assuming that a newly married couple also had
some cash in hand for expenditure; this court is of
the opinion that petitioner and respondent together
were spending at least Rs.30,000/- per month on
themselves. It is settled law that applicant is
entitled to enjoy similar lifestyle which she enjoyed
in the matrimonial home. This court if thus of the
opinion that applicant is entitled to maintenance @
Rs.15,000/- per month, which is half of the
expenditure which petitioner and respondent were
spending during the period of their matrimony. It
is further admitted by Ld. Counsel for applicant
that she has remained gainfully employed with
NDMC, Palika Kendra, New Delhi, during the
month of June, 2015 to December 2015 on contract
basis with salary Rs.20,347/- per month.
Photocopy of her appointment letter has been filed
during the hearing. This court is of the opinion that
during the period applicant/respondent has
remained employed, she is not entitled to
maintenance from petitioner-non-applicant."
2. It was contended before the Family Court that the respondent
was gainfully employed with the NDMC, Palika Kendra, New
Delhi. An office order dated 12th June, 2015 was placed before the
learned Trial Judge in this regard. The same employment order has
been asserted to submit that the respondent is gainfully employed.
This office order dated 12th June, 2015 clearly states that the
respondent was employed on contractual basis for the period of six
months with effect from 6th April, 2015 at a salary of `20,347/-.
While passing the impugned order, the learned Trial Judge has
clearly directed that the appellant would not be entitled to
maintenance for this period as June, 2015 to December, 2015 as
well as "further period when she remains in employment and
earned more than @ Rs.15,000/- per month".
3. There is no other document evidencing that the respondent
was gainfully employed or is gainfully employed for any other
period. The orders passed by the learned Family Judge carefully
protect all rights of the appellant so far as an unwarranted claim of
maintenance is concerned for periods when the respondent may be
employed.
4. It is urged that the respondent-wife has made exaggerated
claims in as much as in her affidavit filed before the Metropolitan
Magistrate in the Domestic Violence case, she had claimed that she
was spending `25,000/- per month on groceries whereas in her
petition before the Family Court under Section 24 of the Hindu
Marriage Act, she has claimed that her grocery expenses were only
`5,000/- per month. Further, in her affidavit filed before the
Metropolitan Magistrate in the Domestic Violence case, she had
claimed that her total expenditure was to the tune of `40,000-
45,000/- per month whereas in her income affidavit filed before the
Family Court in the Section 24 application, she has stated her total
monthly expenditure to be only `13,250/-.
We find that the learned Family Judge has carefully
considered all expenses and directed that the non-applicant was
entitled to `15,000/- as maintenance and `11,000/- as litigation
expenses on a careful assessment of her expenses and the income
of the appellant.
5. It is also to be noted that the order is an interim order subject
to final orders which may be passed on the maintenance aspect
upon the parties leading evidence in any other proceedings, if filed.
In this regard, the appellant has pointed out that the respondent-
wife has filed proceedings under the Protection of Women from
Domestic Violence Act, 2005. Nothing herein contained will be
considered as an expression of opinion on the merits of the rival
contentions in these proceedings which would abide by the final
orders on evidence led by both parties. The respondent has been
awarded litigation expenses of `11,000/- which in the facts of the
case are also reasonable.
6. We find that the appellant has been permitted to clear arrears
in six equal monthly instalments which is also reasonable.
Learned counsel for the appellant contends that the capacity to earn
of the respondent-wife has not been taken into consideration. We
are not persuaded by this argument of learned counsel for the
appellant. There can be many reasons for the wife who has not
sought work. Deprivation of maintenance undoubtedly would do
great dis-service to such spouse.
We, therefore, find no merit in this appeal which is hereby
dismissed.
CM Nos. 13066-67/2016
7. In view of the dismissal of the appeal, these applications do
not survive for adjudication and are disposed of as such.
GITA MITTAL, J
I.S.MEHTA, J
APRIL 08, 2016/kr
