Delhi High Court
R O vs S on 25 January, 2019
$~31
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 25.01.2019
+ MAT.APP.(F.C.) 25/2019
RO ..... Appellant
Through Mr. Swastik Singh, Advocate.
versus
S ..... Respondent
Through
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE JYOTI SINGH
G.S.SISTANI, J (ORAL)
CM APPL. 3853/2018 (exemption)
1. Exemption allowed, subject to all just exceptions.
2. The application stands disposed of.
CM APPL. 3854/2018 (delay in re-filing the present appeal)
3. This is an application filed by appellant seeking condonation of five
days delay in re-filing the present appeal.
4. For the reasons stated in the application, the delay in re-filing the
present appeal is condoned.
5. The application stands disposed of.
MAT.APP.(F.C.) 25/2019
6. The challenge in this appeal is to an order passed by the Family Court
dated 01.05.2018, on an application filed by respondent/wife under
section 24 of the Hindu Marriage Act. In this case, marriage between
the parties was solemnized on 28.11.2013. A daughter was born out
of their wedlock on 16.04.2015, who is in the care and custody of the
respondent/wife. The Family Court has assessed the income of the
appellant at Rs. 17,604/-, keeping the minimum wage index of a
graduate in mind.
7. The learned counsel for the appellant submits that the case of the
appellant before the Family Court was that he was not working and
thus no maintenance could have been fixed. It is also contended that
the respondent is working as a Constable in Delhi Police and is
earning Rs. 34,000/- per month as salary and thus no order for
maintenance could have been passed.
8. Attention of the court is also drawn to an appointment letter dated
23.10.2017 filed on record to show that he was offered a salary of Rs.
9,000/- per month.
9. Attention of the court is also drawn to two judgments of a Single
Judge of this court. In case of Ritu Raj Kant Vs. Anita (2009) ILR
II Delhi 242, Additional District Judge had fixed maintenance of Rs.
1500/- per month on the ground that husband was an able bodied
person. The Single Judge opined that in this country there is no job
guarantee given by the Government to every able bodied person and
many able bodied person were left jobless. Another judgment relied
upon, was by the same single Judge reported as ILR (2009) II Delhi
246 Manish Kumar Vs. Mrs. Pratibha. Relevant para is as follows:-
"5. From the perusal of Section 24, it is abundantly clear that
the object and intent of this Section is to enable the husband or
the wife, as the case may be, who has no independent source of
income for his or her support and necessary expense of
proceedings under the Act to obtain maintenance expenses
pendent lite so that the proceedings may be continued without
any hardhips on his or her part. The benefits granted under this
Section are only temporary in nature and there are other
provisions of law where a wife, who is not able to maintain
herself, can claim maintenance/permanent alimony from the
husband e.g. Section 25 of HMA or under provisions of Hindu
Adoption and Maintenance Act. The provisions of this Section
are not meant for equalizing the income of wife with that of
husband but are meant to see that where divorce or other
proceedings are filed, either of the party should not suffer
because of paucity of source of income and the Court should
pass an order even during the pendency of such a petition, for
maintenance and litigation expenses. Where a wife has no
income or is without any support for maintaining herself; the
Court has to pass an order considering the income and living
status of the husband. However, where the wife and her
husband both are earning and both are earning and both are
having good salary, merely because there is some salary
difference, an order is not required to be passed under Section
24 of HMA."
10. We have heard the learned counsel for appellant and also examined
the order passed by the learned Family Court. The case set up by the
respondent before the Family Court was that the husband is a man of
means and has a flourishing business running many companies under
the name and style of M/s. Oswal Enterprises, dealing in all kinds of
Optical, Raw Material and Cerium Oxide Glass Polishing, powder
Glass Chemicals, situated at South-West Delhi, Nangloi, earning Rs.
1,50,000/- per month, besides having property and leading a luxurious
life and is a well qualified person. As per the income affidavit filed, it
was admitted that the appellant/husband is an MBA but claimed not to
be working. In this backdrop, the Family Court has held that since
there was no evidence on record regarding the income of the
appellant/husband, she was left with no option but to decide the
amount based on minimum wages of a graduate which was assessed at
Rs. 17,604/- and maintenance was fixed at Rs. 8,800/- for the wife and
the minor daughter.
11. The learned counsel for appellant has submitted before us that even
this amount is far in excess, as he is earning only Rs. 9,000/- per
month. The copy of the Appointment Letter has been relied upon,
which we reproduce below:-
Appointment Letter
To: RAVINDER OSWAL
Adhaar No.: 780465346697
On behalf of ROYAL INDUSTRIES, we here by inform you
that you are appointed as FIELD SUPERVISOR in our
industry.
Details as follows:
Position: Field Supervisor
Monthly Salary: 9000 INR
Annual Bonus: Based on your performance
In the best interest of ROYAL INDUSTRIES, we will need
your confirmation immediately.
You are requested to join your duties latest by 25th October,
2017.
We are looking forward to you being a part of our team.
For ROYAL INDUSTRIES
Prop.
PROPRIETOR
12. It is no doubt correct that in family matters normally spouses do not
disclose their correct income and the courts are left with guess work,
which aspect has even been recognised by the Hon'ble Supreme Court
of India in Jasbir Kaur Sehgal Vs. District Judge, Dehradun &
Ors. reported as (1997) 7 SCC 7.
13. However, we find in this case that approach of the learned Family
Court to be completely fallacious and simply following a shortcut in
assessing the income of the husband based on the minimum wage of a
graduate, when the appellant/husband himself has disclosed that he is
an MBA, is not acceptable.
14. We also find that the affidavit filed by the appellant, disclosing his
income to be incomplete as most of the columns are left blank. It is
also shown that the appellant is residing with his friend which we find
to be rather strange. Prima-facie it appears that appellant has made
every effort to mislead the Family Court and not disclose the correct
and true facts. It is admitted that during the pendency of the matter,
the appointment letter was not filed before the Family Court, but
annexed alongwith the review petition which was filed and in fact we
are informed that two review petitions were filed.
15. In the above backdrop, we direct the presence of the respondent in
court on 18.02.2019.
16. We also issue notice to M/s. Royal Industries and direct them to
produce the original salary register from the year 2017 onwards in this
court.
17. List for further proceedings on 18th February, 2019.
18. The order passed will be placed in the file of the Family Court. We
are informed that appellant is present in court and we deem it
appropriate to record his statement which we have separately recorded
and also direct the appellant to remain present in court on the next date
of hearing.
G.S.SISTANI, J
JYOTI SINGH, J
JANUARY 25, 2019
savita
