Delhi High Court
S R vs S R on 8 February, 2019
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
%
Date of Judgment: 08.02.2019
+ MAT.APP.(F.C.) 27/2017 & CM APPLs 51991-92/2018
SR ..... Appellant
Through: Ms. Manisha Arora, Advocate
Versus
SR ..... Respondent
Through Mr. Praveen Kumar, Advocate
alongwith respondent in person
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE JYOTI SINGH
G.S. SISTANI, J. (ORAL)
1. The appellant/husband is aggrieved by the order dated 02.01.2017
passed by the Family Court on an application filed by the
respondent/wife under Section 24 of the Hindu Marriage Act
(hereinafter referred to as 'HMA' by which interim maintenance of
Rs. 25,000/- per month has been awarded to the respondent/wife from
the date of aforesaid application except for the period during which
the respondent/wife remain employed i.e. between June, 2012 to
November, 2012 and also for the period April, 2016 to November,
2016. The litigation expenses to the tune of Rs. 11,000/- were also
awarded to the respondent/wife.
2. The necessary facts to be noticed for the disposal of the present appeal
are that the marriage between the parties was solemnized on
28.01.2008 at New Delhi as per Hindu rites and ceremonies. No child
was born out of said wedlock. The parties are living separately since
10.10.2010. The appellant/husband has filed a petition for divorce
seeking divorce under Section 13 (1) (ia) of HMA on 27.10.2010
which is pending.
3. Counsel for the appellant/husband submits that the Family Court has
failed to take into account that the respondent/wife had played a fraud
upon the Court by filing false affidavits before the Family Court
concealing her employment and financial status. She further submits
that the respondent/wife is a well qualified person and besides being
MBA in Human Resource, she has done a Diploma in Secretarial
practice and has a rich corporate experience. In this backdrop, it is
submitted that the respondent/wife is not entitled to any maintenance
at all and the Family Court was not justified to only exclude the
limited period of employment once the fraud has been detected by the
learned Family Court.
4. The counsel for the appellant/husband has further contended that the
Family Court has erred in assuming the salary of the
appellant/husband to the tune of Rs. 90,000/- to Rs. 1,00,000/- per
month ignoring the salary slip, Form 16 and various other documents
including ITR's available on record. It is also submitted that the
opportunity to file the current salary slip was not given to the
appellant/husband as he is working with a limited company i.e. TATA
AIA Life Insurance Company and his true income cannot be
concealed.
5. The counsel further contended that the appellant/husband is looking
after his old aged parents who are dependent upon him; his father is
surviving on a meagre pension of Rs. 1,682 per month and his mother
is a housewife.
6. Counsel for the respondent/wife has opposed this appeal on the ground
that the respondent/wife was not working at the time of filing of the
application under Section 24 of HMA and it is only thereafter in the
month of June 2012, she got a temporary job for a limited period of
six months. As she lost her temporary job due to the conduct of her
husband in the month of November, 2012, there was no concealment
by the respondent/wife and the said fact has been duly considered and
taken into account by the learned Family Court. Counsel for the
respondent/wife also submits that the respondent/wife instead of
sitting idle at home is continuously making efforts to get a job and it
has been rightly noted and considered by the learned Family Court and
thus she prays that there is no infirmity in the view taken by the
learned Family Court.
7. We have heard the learned counsels for the parties and carefully
examined the order passed by the Family Court. The relevant para 6
of the impugned order dated 02.01.2017 reads as under:
"6. Without going into the reasons and the circumstances under
which the applicant/respondent sworn a wrong affidavit, this
court is of the opinion that her right to claim maintenance
pendente-lite can not be rejected only for having sworn a wrong
affidavit. Law will take it own course and appropriate action if
required, shall be taken against her for having sworn a wrong
affidavit. Court is also alive to the situation that an employable
wife ought not be granted maintenance to encourage an army of
unemployed. Reading of her statement recorded in the court
today, indicates that the applicant/respondent is making efforts
to look for an employment. She has even accepted an
employment on contractual basis. Court is, therefore, of the
opinion that the applicant/respondent is not sitting idle and
merely waiting for doles to be provided by the non-
applicant/husband. Having said that, there is no dispute to the
legal position that the applicant/wife is entitled to maintain the
same status in life, as she maintained while living in the
matrimonial home. It is on record that non-applicant/petitioner
was drawing a salary of about Rs. 70,000/- for a month in
August, 2012. His current income can be expected to be in the
range of Rs. 90,000/- to Rs. 1,00,000/- per month. Considering
the fact that the applicant's last drawn income was Rs. 26,680/-
a month; this court is of the opinion that she is entitle to
maintenance pendente-lite @ of Rs. 25,000/- per month....."
"Emphasis Supplied"
8. 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)
9. There is no doubt that the employability and the employment should
not be misunderstood as being the same as held by the Division bench
of this Court in the case of Ruchi Rai Sehmbey vs. Simon Jason
Sehmbey reported at 2013 SCC Online Del 4657)
10. Taking into consideration that the Family Court has assessed the
income of the appellant/husband between Rs.90,000/- to Rs.1,00,000/-
per month and also considered that the respondent/wife is unemployed
and the period of her employment has been deducted, we find no
infirmity or illegality in the interim order passed by the Family Court.
11. The present appeal is devoid of any merit. Resultantly, the appeal
alongwith the pending applications stand dismissed.
G.S.SISTANI, J.
JYOTI SINGH, J.
FEBRUARY 08, 2019
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