Delhi High Court
Jitender Chauhan vs Renu Chauhan on 18 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 18th July, 2018
+ CM(M) 800/2018
JITENDER CHAUHAN ..... Petitioner
Through: Ms. Megha, Adv.
Versus
RENU CHAUHAN ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
CM No.28107/2018 (for exemption)
1. Allowed, subject to just exceptions.
2. The application is disposed of.
CM(M) 800/2018 & CM No.28106/2018 (for stay)
3. This petition under Article 227 of the Constitution of India
impugns the order [dated 19th April, 2018 in HMA No.1571/2017 of
the Judge, Family Court, Dwarka, New Delhi] directing the petitioner
/ husband to, under Section 24 of the Hindu Marriage Act, 1955, pay
maintenance at the rate of Rs.20,000/- per month to the respondent /
wife.
4. The counsel for the petitioner / husband has been heard.
5. The impugned order is detailed and well reasoned, dealing with
each and every contention of the petitioner / husband.
6. The counsel for the petitioner / husband today, has made three
contentions. Firstly, it is contended that the Judge, Family Court,
Dwarka has not considered the Income Tax Return of the respondent /
wife for the year 2015-16 produced by the petitioner / husband.
CM(M) No.800/2018 Page 1 of 6
Secondly, it is contended that the respondent / wife had approached
the Court of Additional Chief Judicial Magistrate (ACJM), Bhiwani
under Section 23 of the Protection of Women from Domestic Violence
Act, 2005 praying for grant of an interim maintenance of Rs.50,000/-
per month by the petitioner / husband and which application was
dismissed; it is argued that the respondent / wife in the said
proceeding did not render the explanation qua the Income Tax Return
for the year 2015-16 which was rendered before the Judge, Family
Court and has been accepted in the impugned order. The third and last
contention is, that the respondent / wife is well qualified and capable
of earning and the Judge, Family Court, Dwarka has not considered
the judgment of the Division Bench of this Court in Rupali Gupta Vs.
Rajat Gupta (2016) 234 DLT 639 holding that when the wife is well
qualified, she cannot be permitted to sit idle and to put burden on her
husband by demanding pendente lite alimony.
7. I have considered the aforesaid contentions.
8. The impugned order records (i) that the respondent / wife holds
a qualification of M.Sc. B.Ed.; (ii) that it was the case of the petitioner
/ husband that the respondent / wife had filed her income tax return for
the year 2015-16 wherein she had shown her gross income as
Rs.4,01,240/- and after deduction, her total income as Rs.3,02,840
meaning that she was earning Rs.25,236/- per month; (iii) that it was
however the explanation of the respondent / wife that after her
marriage with the petitioner / husband, she had gone for study in
Australia and her expenses were borne by the petitioner / husband and
for visiting Australia the Income Tax Return was got prepared and
CM(M) No.800/2018 Page 2 of 6
filed for seeking visa; and, (iv) that the petitioner / husband was even
otherwise unable to plead or aver as to where the respondent / wife
was working in the year 2015-16 or even where is she working at
present.
9. I have enquired from the counsel for the petitioner / husband
today also to show the plea taken anywhere, of the place from where
the respondent / wife was earning during the year 2015-16 or to at
least name the place where the respondent / wife is today employed or
earning as a teacher for which she holds the qualification.
10. No answer is forthcoming.
11. In the aforesaid circumstances, no error requiring interference in
exercise of jurisdiction under Article 227 of the Constitution of India
is found in the impugned order accepting the explanation aforesaid of
the respondent / wife qua the Income Tax Return.
12. It cannot be lost sight of that the Income Tax Return in question
is of the time when the respondent / wife was residing with the
petitioner / husband and it was not disputed by the petitioner / husband
that the respondent / wife had indeed gone to Australia. The
explanation was thus plausible one and for the reason of the said
Income Tax Return, the respondent / wife could not be declined her
statutory right of interim alimony under Section 24 of the Hindu
Marriage Act.
13. Even otherwise, even if the respondent / wife was earning in the
year 2015-16, what was relevant for adjudication of the application
was, whether the respondent / wife has a source of income for the
contemporaneous time and of which as aforesaid there is no plea.
CM(M) No.800/2018 Page 3 of 6
14. As far as the contention of the counsel for the petitioner /
husband qua the respondent / wife being qualified and capable of
earning, I have enquired from the counsel for the petitioner / husband
whether not there is large scale unemployment of persons qualified to
teach and holding the same qualification as the respondent / wife.
15. The counsel for the petitioner/husband is unable to refute.
16. Merely holding a qualification is no assurance of any earning /
income, just like merely holding the LLB degree is no guarantee for
successful practice in the field of law. The same Division Bench
which pronounced Rupali Gupta supra in Nitin Bhatia Vs. Nidhi
Kalani (2016) 233 DLT 720 (DB) held that "capacity of the other
party to earn cannot be taken into consideration - it is only the actual
earning of the opposite party on the basis of which relief can be
granted". I have in fact asked the counsel for the petitioner / husband
whether the petitioner / husband is in a position to secure any
employment befitting the qualification of the respondent / wife for the
respondent / wife and to which no positive answer is being given.
17. If the petitioner / husband is able to secure a befitting
employment for the respondent / wife and inspite thereof the
respondent / wife does not work, then perhaps it may be open to the
petitioner / husband to seek modification of the order of payment of
maintenance. Else, we are a country of shortages, with large scale
unemployment in all fields and I am unable to find myself interfering
with the impugned order on such hypothetical pleas.
18. The counsel for the petitioner / husband now contends that the
respondent / wife is being paid maintenance at the rate of Rs.10,000/-
CM(M) No.800/2018 Page 4 of 6
per month by the petitioner / husband pursuant to an order in a
proceeding under Section 125 of the Cr.P.C.
19. I am however unable to find any such plea in the reply filed by
the petitioner / husband to the application of the respondent / wife for
interim alimony and no copy of such an order, if any has been filed
along with this petition though is handed over in the Court.
20. The counsel for the petitioner / husband is however not willing
to commit herself whether the said order has been complied with and /
or till what date maintenance thereunder has been paid.
21. The counsel for the petitioner / husband at this stage also refers
to Sujit Kumar Vs. Vandana (2016) 233 DLT 39 (DB) to contend
that the amount paid under Section 125 Cr.P.C. is adjustable in
payments under Section 24 of the Act.
22. The petitioner / husband having not raised any such plea before
the Family Court and the same having resultantly not been addressed
by the Family Court, no interference with the impugned order can be
made on account thereof. It will however be open to the petitioner /
husband to approach the Judge, Family Court seeking modification of
the impugned order on the said ground.
23. As far as the contention, that the said explanation aforesaid qua
Income Tax Return was not rendered before the Court of ACGM,
Bhiwani, a perusal of the order at pages 29 and 30 of the paper book
shows the counsel for the petitioner / husband to have, during the
course of hearing before the ACGM, Bhiwani, handed over the said
Income Tax Return and it is thus not clear whether the counsel for the
respondent / wife had opportunity to take instructions with respect
CM(M) No.800/2018 Page 5 of 6
thereto from the respondent/wife. The same thus cannot also come in
the way of the said explanation being accepted in the impugned order.
24. Though the counsel for the petitioner / husband has not made
any contentions qua the quantum of maintenance and to which no
challenge is thus made but I may mention that the maintenance
awarded in the impugned order is found to be in consonance with the
pleas of the petitioner / husband himself of having paid Rs.20 lacs in
cash to the father of the respondent / wife and in consonance with the
conduct of the petitioner / husband of having the Income Tax Return
as aforesaid prepared and filed of the respondent / wife while she was
residing with the petitioner / husband.
25. No merit is thus found in the petition.
Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J.
JULY 18, 2018
'gsr'..
