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[Cites 6, Cited by 0]

Delhi District Court

Satish vs Smt. Deepmala on 30 April, 2012

                   IN THE  COURT OF  MS. SUJATA KOHLI
                   ADDITIONAL DISTRICT JUDGE(WEST)
                            TIS HAZARI : DELHI

HMA No.382/10

Satish
S/o Sh. Prem Singh,
R/o B­112/A, Rama Park,
Uttam Nagar, New Delhi.

                                                                              ....Petitioner
                                        VERSUS

Smt. Deepmala
D/o Sh. Ram Kumar,
R/o M­46, Sainik Nagar,
Uttam Nagar, New Delhi
                                                                           ....Respondent
ORDER:

Respondent/applicant/wife has sought interim maintenance @ Rs.5,000/­ per month and besides litigation expenses to the tune of Rs. 11,000/­, claiming therein that she is unemployed having no source of income and that her husband, who is well placed and living a luxurious lifestyle himself, has failed to make any provisions for her maintenance.

2. It is further alleged that the respondent/applicant/wife is left at the mercy of her mother and brother, as her mother being working only as Peon and her brother is also having a meagre income and burdened with a liability of his own family.

3. The petitioner/non­applicant/husband on the other hand has controverted each and every averment. Firstly on the point of his own income, though he has admitted that he was working with McDonald as a delivery boy earlier, he contents that he lost his job as his service was terminated on the complaint lodged by the respondent/applicant/wife herself and that presently he is unemployed.

4. It is further alleged on behalf of the petitioner/non­ applicant/husband that on the contrary, the respondent/applicant/wife herslef is well employed, working in a firm and drawing a salary of Rs.10,000/­ per month. The petitioner/non­applicant/husband has averred that he and the respondent/applicant/wife were known to each other prior to their marriage as both were working at a common place, where the brothers of the respondent/applicant/wife were also working. As such, the claim of the respondent/applicant/wife that she has no source of income, is false claim.

5. The petitioner/non­applicant has averred that even on date, the respondent/applicant/wife is working in a firm and drawing a salary of Rs. 10,000/­ per month , the particulars have also been furnished being Flat No. 225, Krishi Apartment, Vikas Puri, New Delhi. The petitioner/non­ applicant/husband has gone on to describe the particulars of the firm by stating that the said firm is dealing with the Autocad making AC Panels and job of the respondent/applicant/wife is, drafting designs of the panels to be installed as per the requirements of the customers of the company. However, at the same time, petitioner/non­applicant/husband has also submitted that since, the said firm is a private concern, no salary slips are being issued, as such he cannot produce any document.

6. As regards his own income, the petitioner/non­ applicant/husband has submitted that the office where he was working and drawing a salary of Rs.6,000/­ per month had already been terminated on the complaint of the respondent/applicant/wife and as such, the respondent/non­ applicant/wife herself cannot seek maintenance from him. The main petition under Section 12 of HMA has been filed by the petitioner/non­ applicant/husband to seek annulment of the marriage on ground of fraud as alleging certain medical deficiencies to have been kept concealed by the respondent/applicant/wife.

7. The respondent/applicant/wife in her rejoinder has admitted the contents of paras 8 and 9 of the reply filed by the petitioner/non­ applicant/husband. However, she has denied that petitioner/non­ applicant/husband himself left the job or that he is jobless. It is necessary to reproduce the contents of paras 8 and 9 at this stage as under:­ "8. Para no.8 of the Application is correct that the father of the respondent/wife has already expired and her mother is working in a school but as no income proof has been annexed, the same cannot be replied. However, the brothers of the respondent/wife are working well and at the same time, the respondent/wife is also working in the same office alongwith her brothers. This is also evident from record as prior to marriage the respondent/wife also used to go office alongwith her brothers, where they managed to convince the petitioner/husband to marry their sister by concealing the correct picture of her physical position.

9. Para no.9 of the application is correct to the extent that the petitioner/husband was working as a field boy in McDonald but now he has been terminated by them as the respondent/wife made several telephonic complaints against him to his employer and basing on the said complaint they have dismissed him. The respondent/wife has managed to get a copy of the salary slip for the period of August 2010 but now he is working nowhere. Though the petitioner/husband wants to work with some one but as his all documents pertaining to his education and other certificates are in possession of the respondent/wife, he is unable to get any job anywhere. The factum of the dismissal of the petitioner/husband from McDonald can be verified herself from his employer. The salary mentioned in the para under reply and the salary slip pertaining to the month of August, 2010 are contradictory to each other as there is a difference of Rs.4,000/­ between them."

8. Vide para 8 contents, the claim of the petitioner/non­ applicant/husband is that the respondent/applicant/wife is very well working in office alongwith her brothers. Para 9 of the reply pertains to his own source of income and his averment that he has already lost his job as a field boy in McDonald due to several telephonic complaints made against him by the respondent/applicant/wife to his employer.

9. Keeping in view the clear admissions of the respondent/applicant/wife with regard to the most material pars of the reply, it can hardly lie in her mouth then to seek maintenance against the husband.

10. The respondent/applicant/wife in the present case deserves no interim maintenance particularly in view of the specific admissions in the paras 8 & 9 filed by the petitioner/husband/non­applicant.

11. Further, as per the directions of this court based on the guidelines laid down by the Hon'ble High Court in a judgment titled as Puneet Kaur Vs. Inderjeet Singh Sawhney, both parties also filed their detailed affidavits.

12. The respondent/applicant/wife has stated her educational qualification as being 12th passed from CBSE. She has denied having any income from any source whatsoever. However, it is first time in this affidavit that the respondent/applicant/wife has disclosed the factum of her being already awarded a maintenance @ Rs.1500/­ per month effective from August 2011 from the Family Courts at Dwarka. This fact was not divulged by the respondent/applicant/wife earlier in her application or in her rejoinder.

13. The respondent/applicant/wife has also admitted to be having a LIC policy vide Sr. No.(iii) (f).

14. In her list of expenditure, she has further come forward to show a premium of LIC, Medi­Claim, Housing as well as vehicle policy.

15. Respondent/applicant/wife has further disclosed that the mobile/landline phone bills are being paid by her mother with respect to point .75 i.e. a general information regarding standard of living lifestyle at Sr.No.(iii).

16. The respondent/applicant has stated that all the marriages in her parental are 'wealthy marriages' and all the expenses being borne by her mother. In the face of this, her averment that her month is working only as Peon and her father has already expired. Both the statements are quite self contradictory in as much as a sole earning member being the mother, working only as a Peon would certainly not afford 'wealthy marriages' as stated by the respondent/applicant/wife herself.

17. The respondent/applicant significantly avoided to state anything about the expenditure incurred on festivals and she has given an evasive statement by simply stating that all the expenses are borne by her mother without specifying the expenses and adverse inferences can be drawn from this kind of reply under Section 114(g) of the Evidence Act, holding that answer to the Sr.No.(v) regarding expenditure on festivals if given completely would not have served the interest of respondent/applicant/wife and would have revealed a lavish lifestyle being enjoyed by the respondent/applicant/wife herself.

18. Respondent/applicant/wife has further avoided to disclose the details of the residential accommodation by simply stating 'NIL'.

19. As regards the statement of all bank accounts, the respondent/applicant/wife has divulged the particulars of the Bank of Baroda with its photocopies of passbook being Ex.PW1/B & C.

20. The copy of the statement of account from Bank of Baroda is for the period from August 2007 onwards till Jul 2011. The parties in the present case got married in June 2008 and parted their ways in September 2010. The statement of account is showing consistent and continuous deposits sometimes of Rs. 6,500/­ and sometimes of Rs.4,500/­ and even some lump­sum payment like Rs.27,500/­. There are certain payments by cheques of more or less of similar amounts with slight variations mostly of Rs.4,000/­, each and at regular intervals i.e. around the beginning of each month. This continuous payment by cheque is visible throughout in the statement right from the year 2007 onwards up till 2011.

21. Had the respondent/applicant/wife not been working anywhere, it was for the respondent to have explained about the regular payments incoming through cheques and the source; but the respondent/applicant/wife and her counsel failed to explain even during arguments when ld. counsel for petitioner/non­applicant/husband clearly pointed out towards the said regular credit entries.

22. Similarly, the statement of account filed by the petitioner/non­ applicant/husband is also showing a regular credit entry around Rs.6,000/­ or a little above each month by cheques right from 2008 onwards till February 2012.

23. As regards his other general information regarding his living standard, on his detailed affidavit filed upon directions, the education of the petitioner/non­applicant/husband is same as that of respondent/applicant/wife i.e. only 10+2. He is stated to be employed as driver/delivery man. The petitioner/non­applicant/husband has further disclosed truthfully that there are 5 members i.e. his mother, father and 3 brothers, all of whom are independent. The petitioner/non­ applicant/husband has further disclosed about the property which according to him is exclusively owned by his mother.

24. As regards, the general articles like TV, Fridge etc., the petitioner/non­applicant/husband has replied that he had purchased articles like these after the marriage and all of which have already been taken away by the respondent/applicant and even he has lodged a complaint with the police.

25. It is further stated in entry no.4(ii) regarding personal or business loans, the petitioner/non­applicant/husband has stated that after marriage he obtained a loan of Rs.10,000/­ from a friend after the marriage and thereafter he again borrowed another sum of Rs.5,000/­ to initiate legal proceedings against the respondent/applicant/wife. Rent being paid is stated Rs.1500/­ per month and besides Rs.1000/­ for water, gas and other utilities. A sum of Rs.500/­ approximately spent on public transport each month.

26. From the entire replies given by the petitioner/non­ applicant/husband on his detailed affidavit, the picture that emerges is that it is the petitioner/non­applicant who is in a much worse financial situation and maintaining a very low standard of living due to the his meagre earning, whereas on the contrary, the respondent/applicant has invested in Life Insurance Policies as well as Medical Claims etc. and clearly seems to be doing much better financially than the petitioner/non­applicant/husband.

27. Our own Hon'ble High Court, in a judgment rendered by his lordship in MC No.491/09 titled as Sanjay Bhardwaj & Ors. The State & Anr., Wherein also though maintenance had been fixed by the Ld. Magistrate, same was in question and it was observed by his lordship that Ld. Magistrate fixed the maintenance without considering the contention raised by the husband. That the husband had lost a job in Angola, Africa, where he was working before marriage because his passbook was seized by police and he could not join his duties back. After marriage he remained in India because he was not employed, his lordship after some discussion held that no law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact that whether he earns or not. Court cannot tell the husband that he should beg, borrow or steal but given maintenance to the wife, more so when the husband and wife are almost equally qualified equally capable of earning and both of them claimed to be gainfully employed before marriage. It was observed by his lordship as under:­ "We are living in an era of equality of s*xes. The Constitution provides equal treatment to be given irrespective of s*x, caste and creed. An unemployed husband, who is holding an MBA degree, cannot be treated differently to an unemployed wife, who is also holding an MBA degree. Since both are on equal footing one cannot be asked to maintain other unless one is employed and other is not employed. As far as dependency on parents is concerned, I consider that once a person is grown up, educated he cannot be asked to beg and borrow from the parents and maintain wife. The parents had done their duty of educating them and now they cannot be burdened to maintain husband and wife as both are grown up and must take care of themselves."

28. Ultimately, the order of Ld. Magistrate was set aside. Though the order was in the proceedings under Domestic Violence Act under Section 125 Cr.P.C. The principles involved being same and would be applicable to proceedings under Section 24 HMA and given in the present facts of this case which are almost identical and on worse footing in as much as husband has lost his job with McDonald, admittedly because of the complaint of the wife.

29. While setting aside the order of Ld.Magistrate granting maintenance of Rs.7500/­ per month to the wife, his lordship observed in CM No.949/2008 titled as Manish Kumar Vs. Pratibha as under:­ "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 hardships 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 equivalising 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 having good salary, merely because there is some salary difference, an order is not required to be passed under Section 24 of HMA."

30. Taking a prima facie view of the facts and circumstances in totality, the present application is found absolutely frivolous and devoid of any merits and in fact the same is based on the concealment of material facts, with which the respondent/applicant/wife came out only after she was directed to file the detailed affidavit in the tabular format.

Application stands dismissed.

(SUJTA KOHLI) ADJ/WEST/DELHI/27.04.2012