Delhi High Court
Amardeep Singh Chadha vs Nirmeet Kaur @ Naina on 16 November, 2018
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 16th November, 2018
+ MAT.APP.(F.C.) 297/2018
AMARDEEP SINGH CHADHA ..... Appellant
Through: Mr.G.K.Bharti, Mr.Charitarth Bharti
and Mr.Rajesh Kumar, Advocates.
Versus
NIRMEET KAUR @ NAINA ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE JYOTI SINGH
G.S.SISTANI, J. (ORAL)
CM. No.47438/2018 (Exemption)
1. Exemption allowed, subject to all just exceptions.
2. The application stands disposed of.
CM. No.47439/2018 (Delay of 17 days)
3. This is an application filed by appellant seeking condonation of 17 days
delay in filing the appeal.
4. The delay in filing the appeal is condoned.
5. The application stands disposed of.
MAT.APP.(F.C.) 297/2018
6. The challenge in this appeal is to the order dated 04.09.2018 passed by
the Principal Judge, Family Courts, Karkardooma Courts, Delhi
whereby an application filed by the respondent/wife under Section 24 of
the Hindu Marriage Act, 1955 (hereinafter referred to as „HMA‟)
seeking maintenance for herself and her minor son was allowed. The
Family Court has awarded the maintenance in the sum of Rs.8,000/- to
the wife and Rs.4,000/- to the minor son from the date of the filing of
the application.
7. The necessary facts to be noticed for the disposal of the present appeal
are that the marriage between the parties was solemnized on 09.02.2003
at Delhi as per Sikh rites. Out of their wedlock, a son was born on
31.12.2003, who is now in the custody of the mother. The parties were
living separately since January, 2009. On 05.04.2014, the
appellant/husband had filed a petition seeking divorce under Section
13(1)(ia) of HMA before the Family Court.
8. Learned counsel for the appellant submits that the order which is
impugned before us was passed in his absence without taking into
consideration that the appellant/husband is not in a position to pay such
an amount. It is further contended that the appellant/husband is
completely dependent on his widowed mother and, thus, he is unable to
pay the same.
9. We have heard the learned counsel for the appellant and carefully
examined the order dated 04.09.2018 passed by the Family Court. The
relevant para of the impugned judgment passed by the Family Court
wherein the income of the appellant/husband has been assessed at Rs.
25,000/- per month.
"Petitioner in his affidavit has claimed himself to be
unemployed and having no monthly income. In assets he has
shown to be owning one shop at Kashmere Gate. The copy of
the statement of account of respondent of SBI from 31.10.2015
till June, 2016 show various entries of payments made by
petitioner in her account. The school documents relied upon by
respondent are pertaining to the year 2004-05. Even the air
ticket and hotel booking are of March, 2016. Beyond these
documents respondent had failed to file any document to
support her contention that petitioner is earning more than Rs.
5 lakhs per month.
However, various documents showing the petitioner as
Treasurer of the school during 2004-05 and his traveling by air
with family and stay in a hotel at Jaipur reflect on his financial
status. It appears petitioner is concealing his income and he has
bluntly mentioned in his affidavit that he has no income at
all...."
10. As it is often seen that the spouses do not reflect their true and correct
income making the task of the Family Court difficult to assess the true
and correct income of the spouse. The Family Court has to rely upon
guess work to assess the income of the spouses. In the case of Jasbir
Kaur Sehgal (Smt.) v. District Judge, Dehradun and Ors., reported at
(1997) 7 SCC 7 wherein the Hon‟ble Supreme Court has also
recognized the fact 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".
11. The issue of interim maintenance has been discussed time and again by
the Hon‟ble Supreme Court and this Court in various judgments. In the
case of Chaturbhuj v. Sita Bai reported at (2008) 2 SCC 316, the
Hon‟ble Supreme Court discussed the object of the maintenance
proceedings and also duty of a man to maintain his wife, children and
parents when they are unable to maintain themselves. The Apex Court
further interpreted the phrase "unable to maintain herself". The relevant
paras 6 reads as under:
"6. The object of the maintenance proceedings is not to punish a
person for his past neglect, but to prevent vagrancy by
compelling those who can provide support to those who are
unable to support themselves and who have a moral claim to
support. The phrase "unable to maintain herself" in the instant
case would mean that means available to the deserted wife
while she was living with her husband and would not take
within itself the efforts made by the wife after desertion to
survive somehow...."
(Emphasis Supplied)
12. In the present case, we have found that the case at hand is a perfect
example of not reflecting the true and correct income by the spouse
before the Family Court. The Family Court has taken into consideration
that the appellant/husband is running a business of selling automobile
parts from Oberoi Market, Kashmere Gate and has concealed his
income. It is noteworthy to mention that the appellant/husband has
deposed in his affidavit that he has no income at all. In this background,
we are of the view that the learned Family Court has rightly assessed
the income of the appellant/husband as Rs. 25,000/- per month. Taking
into consideration that the respondent is a housewife and she has to
maintain herself and her minor son, we find no infirmity in the order
dated 04.09.2018 passed by the Family Court. The present appeal is
devoid of any merit. Resultantly, the appeal is dismissed.
13. As prayed, we make it clear that the order passed by the Family Court
under Section 24 of HMA will not stand in the way of the
appellant/husband raising all grounds available to him in other
proceedings including proceedings pending under the Protection of
Women from Domestic Violence Act, 2005 and under Section 125 of
the Code of Criminal Procedure.
14. At this stage counsel for the appellant prays that the appellant/husband
be permitted to clear the arrears in installments. This prayer may be
made before the Executing Court who will consider the request of the
appellant/husband sympathetically.
G.S.SISTANI, J.
JYOTI SINGH, J.
NOVEMBER 16, 2018//ssc
