Delhi High Court
D C vs B C on 7 February, 2019
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 07.02.2019
+ MAT.APP.(F.C.) 147/2017 & CM APPL. 30031/2017 (Stay)
DC ..... Appellant
Through Ms. Tania Singh, Advocate alongwith
appellant in person
Versus
BC ..... Respondent
Through Mr. Anirudh K. Mudgal and Mr. B.
Venkatraman, Advocates
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE JYOTI SINGH
G.S. SISTANI, J. (ORAL)
CM. No.30033/2017 (delay of 53 days)
1. This is an application filed by the appellant/husband seeking
condonation of 53 days delay in filing the present appeal. In view of
the judgment rendered by the Full bench of High Court of Bombay in
the case of Shivram Dodanna Shetty vs. Sou. Sharmila Shivram
Shetty reported at 2016 SCC OnLine Bom 9844 passed on
01.12.2016, the period of limitation prescribed under sub-section (4)
of Section 28 of Hindu Marriage Act, 1955 (hereinafter referred to as
'HMA') for an appeal under sub-section (1) of Section 19 of the
Family Courts Act, 1984 is 90 days.
2. For the reasons stated in the application and the judgment rendered by
the High Court of Bombay, delay of 53 days in filing the appeal is
condoned.
3. The application stands disposed of.
MAT.APP.(F.C.) 147/2017
4. The appellant/husband is aggrieved by the order dated 21.04.2017
passed by the Family Court on an application filed by the
respondent/wife under Section 24 of HMA. By virtue of the said
order, interim maintenance of Rs. 20,000/- per month has been fixed
for the respondent/wife for the period between 21.01.2009 to
20.01.2013 in addition to the maintenance for daughter. Challenge is
also made to the litigation expenses which are awarded to the
respondent/wife to the tune of Rs.75,000/-.
5. The necessary facts to be noticed for the disposal of the present appeal
are that the marriage between the parties was solemnized on
25.01.2003 at Bhubaneswar as per Hindu rites and ceremonies. A girl
child was born out of their wedlock on 09.02.2006, who is in the care
and custody of the respondent/wife and she is looking after the child.
The parties are living separately since February-March, 2009.
6. Counsel for the appellant submits that the Family Court has failed to
take into account that the appellant/husband is without a job for the
last one and a half years and also during the passing of the impugned
order. She further submits that the respondent/wife is a well qualified
person and besides being an MBA from AIMA, she has done one year
Diploma in Textile International Polytechnic for Women. The counsel
contended that the respondent/wife is more qualified than the
appellant/husband and has got two professional degrees in comparison
to the appellant/husband who is a post graduate with a diploma in
International Business. In this backdrop, it is submitted that the
respondent/wife is not entitled to any maintenance for the period
granted by the Family Court as she is earning well from her own
garment manufacturing and sales business in Bhubaneswar, Odisha.
7. The counsel for the appellant/husband further contended that the
appellant/husband despite of being unemployed is looking after his old
aged mother who has been paralysed and also paying monthly
installments of the Housing Loan taken by him.
8. Counsel for the respondent/wife has opposed this appeal on the ground
that since 21.04.2017, the appellant/husband has not paid even a single
penny in compliance of the order passed by the Family Court. The
case set up by the respondent/wife before the Family Court was that
the husband was drawing a salary of Rs. 1,85,000/- per month.
However, the Family Court has awarded a meagre maintenance of Rs.
20,000/- per month and that is only for the limited period between
21.01.2009 to 20.01.2013.
9. We have heard the learned counsels for the parties and carefully
examined the order passed by the Family Court. The relevant para 22
of the impugned order dated 21.04.2017 reads as under:
"22. Perusal of the income tax returns of the petitioner would
show that assessment year 2008-2009, his gross total income
was Rs. 21,67,610/-. The income tax returns for the year 2009-
2010, 2010-2011, 2011-2012, 2012-2013 and 2013-2014 are
not placed on record. There is placed on record a pay slip dated
02.11.2009 showing his net income Rs. 87,551/- per month.
However, for the assessment year 2014-2015 income taxable is
shown to be Rs. 2,72,009/- and for the financial year 2015-2016
Rs. 8,14,190/-. Another fact that may be considered regarding
the life style of the petitioner is that bill of Rs. 1,35,191/-
towards SBI credit card payable by 02.04.2016 and earlier Rs.
1,78,080/- of the credit card Standard Chartered Bank payable
by 02.03.2016. The said discussion brings to the light that the
respondent has not cared to file income tax returns for the years
prior to 2016-2017 and at the cost of repetition, certain deposits
in her account have not been explained. It was rightly
contended by Ld. Counsel for the petitioner that respondent is
equally qualified if not more. The respondent has not given any
detail of her boutique business in the nature of name of the
boutique, its constitution a sole proprietorship concern or
partnership or a juristic person; the location and/or
measurement of the premises from which the business is being
run, sales turn over, number of the persons employed. Without
much ado, I also do not find the story of the petitioner
fathomable that he is unemployed since 15.01.2016 and there is
certainly an attempt by him to conceal his earnings. In fact,
both are attempting to hoodwink the process of the law."
10. As it is often seen that the spouse(s) 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 estimate the income of the spouse. (See:
Jasbir Kaur Sehgal (Smt.) v. District Judge, Dehradun and Ors.,
reported at (1997) 7 SCC 7). The case at hand is a perfect example of
not reflecting the true and correct income by the spouse(s) before the
Family Court.
11. Taking into consideration that at the time of separation, the
respondent/wife was fully dependant on her husband/appellant herein
and only thereafter she had started her business career from scratch
and a gestation period of four years to set up her boutique business
was taken into account, we are of the view that the Family Court has
rightly analyzed the facts and the position of law and fixed a
maintenance of Rs. 20,000/- per month, in addition to the maintenance
for their daughter, only for a period of four years i.e. period from
21.01.2009 to 20.01.2013. We find no infirmity or illegality in the
interim order passed by the Family Court.
12. The present appeal is devoid of any merit. Resultantly, the appeal
alongwith the pending application stands dismissed.
G.S.SISTANI, J.
JYOTI SINGH, J.
FEBRUARY 07, 2019
//savita
