NEUTRAL CITATION NO: 2022/DHC/005431
$~4 and 11
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 05.12.2022
+ MAT.APP.(F.C.) 169/2019
RAJEEV SHARMA ..... Appellant
versus
PALLAVI SHARMA ..... Respondent
+ MAT.APP.(F.C.) 97/2022
MS. PALLAVI SHARMA ..... Appellant
Through:
versus
SH. RAJIV SHARMA ..... Respondent
Through:
Advocates who appeared in this case:
For the Appellant: Ms. Juhi Arora, Advocate(DHCLSC) for Ms. Pallavi
Sharma in MAT.APP.(F.C.) 97/2022.
Mr. Ankit Gupta, Advocate for the Rajiv Sharma in
MAT.APP.(F.C.) 169/2019.
For the Respondent: Ms. R. Rajeshwari H. and Ms. Nupur A. Goswami ,
Advocates for Ms. Pallavi Sharma in MAT.APP.(F.C.)
169/2019.
Mr. Ankit Gupta, Advocate for respondent-Mr. Rajiv
Sharma in MAT.APP.(F.C.) 97/2022
Ms. Pallavi Sharma in person
Mr. Rajeev Sharma in person through video-conferencing.
Signature Not Verified
Digitally Signed By:KAMAL
KANT MENDIRATTA
Signing Date:09.12.2022
17:32
NEUTRAL CITATION NO: 2022/DHC/005431
CORAM:-
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
HON'BLE MR. JUSTICE RAJNISH BHATNAGAR
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
CM APPL. 45860/2022 (early hearing) in MAT.APP.(F.C.) 169/2019 CM APPL. 51767/2022 (early hearing) in MAT.APP.(F.C.) 97/2022
1. These are applications on behalf of the wife seeking advancing of the date of hearing in the appeal
2. Issue notice. Notice is accepted by the counsel appearing for the husband and husband has also connected through video- conferencing.
3. For the reasons stated in the applications, the same are allowed and the appeals are taken up for consideration today.
MAT.APP.(F.C.) 169/2019 & MAT.APP.(F.C.) 97/2022
4. The Appellant - husband in MAT.APP.(F.C.) 169/2019 seeks setting aside of Order dated 24.04.2019 whereby the Family Court has assessed the income of the husband at Rs.50,000/- to Rs.70,000/- per month, and directed the payment of a sum of Rs.6250/- per share; two shares to the husband; one share to the wife and one share to the son, who is presently 15 years of age, and studying in Class XI.
5. The Appellant - wife has filed MAT.APP.(F.C.) 97/2022
Signature Not Verified Digitally Signed By:KAMAL KANT MENDIRATTA Signing Date:09.12.2022 17:32 NEUTRAL CITATION NO: 2022/DHC/005431
seeking modification of Order dated 24.04.2019 and enhancement of maintenance fixed therein.
6. Learned counsel for the husband contends that the husband is working as a driver, and has an income of about Rs.9000/- per month and is unable to afford the maintenance amount. He further submits that maintenance was initially fixed by Order of the Family Court dated 21.04.2016 at Rs.4750/- per month for both the mother and son and the Family Court has erred in modifying the order and enhancing the same to Rs.6250/- for the wife and Rs.6250/- for the son by the impugned order dated 24.04.2019.
7. Learned counsel for the wife disputes the contentions and submits that the husband was doing the business of stationery and had handsome income from the same. Learned counsel further submits that husband has incorrectly stated that he is working only as a driver and in fact he owns two private vehicles; one is a Maruti Swift Desire and the other is a Maruti Wagon-R. Learned counsel further submits that the initial order was modified on an application filed for review by the wife, and the amount has been enhanced keeping in view the earning capacity of the husband and the expenditure of the wife and the son.
8. It may be noticed that the husband has been taking contradictory stands before the Family Court as well as before this Court. It is not in dispute that the husband was carrying on the business of stationery at the time of his marriage, and even till the time they separated.
Signature Not Verified Digitally Signed By:KAMAL KANT MENDIRATTA Signing Date:09.12.2022 17:32 NEUTRAL CITATION NO: 2022/DHC/005431
9. Before us, it is contended on behalf of the husband that stationery business was being carried out in a shop owned by his father, and the business has been stopped for about 4-5 years ago.
10. It is further noticed that before the Family Court also, a conflicting stand was taken, and it was contended that the husband was working as a Field Executive with a Proprietorship concern of one Mr. Alok Gupta. A Local Commissioner was appointed by the Family Court to verify the said fact. The Local Commissioner in his report has reported that the employer Sh. Alok Gupta failed to inform the exact date of appointment of the husband, and also failed to show and provide any document related to the employment and salary of the husband. Thereafter, another stand has been taken that he is working as a driver.
11. Learned counsel for the husband began his submissions contending that the husband was working as a driver in Ola/Uber. When he was asked to show the registration as a driver of the vehicle for Ola/Uber, the stand immediately changed to that he was driver with some Tour and Travel Company.
12. In so far as place of residence is concerned, the contention of the husband was that he was residing in Rajasthan then it was stated that he resides in Delhi and keeps moving around as he is a Driver.
13. There is no material to show that the shop that was allegedly owned by the father of the husband, where the business of stationery was being carried out by the husband, has been closed and the business is not being run therefrom. Further no registration certificate
Signature Not Verified Digitally Signed By:KAMAL KANT MENDIRATTA Signing Date:09.12.2022 17:32 NEUTRAL CITATION NO: 2022/DHC/005431
of any vehicle which is being driven as a transport vehicle for Ola/Uber or any Tour or Travel Company has been produced by the husband.
14. Accordingly, we are of the view that the contentions of the husband that he is not doing any business and is only working as a driver cannot be accepted. Therefore, we find no reason to interfere with the assessment done by the Family Court assessing the income of the husband at Rs.50,000/- to Rs.70,000/- per month.
15. With regard to the contention of learned counsel for the husband that the initial order of maintenance dated 21.04.2016 could not have been modified, is also not sustainable for the reason that learned counsel appearing for the wife has placed on record copies of the review applications which were filed before the Family Court.
16. No doubt, the impugned order does not refer to the review applications, however, we find that the initial order assesses the maintenance for both the mother and son at Rs.4750/- which translates to a sum of Rs. Rs.2375/- per month per person which is hardly enough for the survival of the son who is presently studying in a public school and in Class XI. Certainly, a substantial amount would be required for a child aged 15 years for his day to day expenses, uniform, tuition, education etc.
17. It is settled position of law that the husband has to provide the same standard of living to his wife and child as he was providing at the time when they were living together as a family.
18. In so far as appeal for enhancement of the wife is concerned, we
Signature Not Verified Digitally Signed By:KAMAL KANT MENDIRATTA Signing Date:09.12.2022 17:32 NEUTRAL CITATION NO: 2022/DHC/005431
find that no material has been placed by the wife on record to show that the assessment done by the Family Court of the income of the husband is erroneous.
19. Learned counsel for the wife submits that parties being estranged and the wife living separately since 2009, she has not been in a position to access the material to show the actual income. In the absence of any material to the contrary, the assessment done by the Family Court cannot be held to be erroneous even on the part of the wife. However, in view of the submission that she has not been able to access any evidence with regard to the actual income, we dispose of the appeals reserving the right of the wife to move an appropriate application seeking enhancement/modification in case she is able to ascertain and find out any material.
20. We are also informed that there are substantial arrears approximately of Rs.13 lacs towards the amount enhanced by the Family Court by the impugned order.
21. Learned counsel for the husband, on instructions, submits that the amount being substantial, he would require some time to clear the arrears.
22. The appeals are, accordingly, dismissed maintaining the order dated 24.04.2019, however, with liberty to the wife to apply to the Family Court for enhancement in the circumstances as noticed hereinabove. The husband shall clear the entire arrears in 12 equal monthly installments along with the payment of monthly maintenance amount commencing from 1st January, 2023.
Signature Not Verified Digitally Signed By:KAMAL KANT MENDIRATTA Signing Date:09.12.2022 17:32 NEUTRAL CITATION NO: 2022/DHC/005431
23. The interim order dated 05.07.2019 in MAT.APP.(F.C.) 169/2019 is vacated.
24. The next date i.e.,13.01.2023 stands cancelled.
SANJEEV SACHDEVA, J
RAJNISH BHATNAGAR, J DECEMBER 05, 2022/ib
Signature Not Verified Digitally Signed By:KAMAL KANT MENDIRATTA Signing Date:09.12.2022 17:32
