Delhi High Court
Paredhei Kothari vs Sh. Ashish Sud on 13 December, 2010
Equivalent citations: 2011 AIR CC 1891 (DEL), (2011) 99 ALLINDCAS 525 (DEL), AIR 2011 (NOC) (SUPP) 86 (DEL.), (2011) 1 DMC 45, (2011) 4 PUN LR 42, (2011) 176 DLT 169, (2011) 2 CIVILCOURTC 591, (2012) 1 HINDULR 200, (2011) 2 RECCIVR 710, (2011) 1 MARRILJ 461
Author: S.Ravindra Bhat
Bench: S. Ravindra Bhat
* IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON: 13.12.2010
+ IA 13326/2009 in CS (OS) 1948/2009
PAREDHEI KOTHARI ..... PLAINTIFF
Through: Shri Pradeep Sharma, Shri Arun Prakash Tiwari
and Shri Subhashish Kukreti, Advocates.
versus
SH. ASHISH SUD ..... DEFENDANT
Through: Shri Pavan Upadhyay, Advocate.
CORAM:
MR. JUSTICE S. RAVINDRA BHAT
1. Whether the Reporters of local papers YES
may be allowed to see the judgment?
2. To be referred to Reporter or not? YES
3. Whether the judgment should be YES
reported in the Digest?
MR. JUSTICE S.RAVINDRA BHAT
%
1. This order will dispose of the petitioner's application for ad-interim maintenance, sought
against the respondent, her husband. She has sued the latter for a decree of maintenance
at the rate of ` 50,000/-. The parties are hereafter referred to as "the wife" and "the husband", respectively. The wife also claims a decree for of ` 12,75,000/-.
2. Briefly, the pleadings in this case disclose that the marriage between the two contesting parties took place on 28th October, 2007, at Baroda. The parties came across each other's matrimonial advertisement in the portal "Shaadi.com" and apparently met for the first time on 9th September, 2007. It is submitted that the husband was working in a firm CS (OS) 1948/2009 Page 1 known as "Cross Beam", and just before the marriage, switched over his job to "Nevis Network". It is submitted that his annual income, according to his representation, in Cross Beam was of ` 28,000,000/- (Rupees twenty eight lakhs) and he told the wife that the annual income in Nevis Network was of ` 4000,000/- (Rupees forty lakh). The wife claims that the husband, and his relatives were rude and offensive in their behavior towards her from the beginning of the marriage, and narrates several instances of such misbehavior. It is also alleged that she used to be routinely taunted and taken to task for not ensuring sufficient dowry; and insinuations were leveled against her. The wife, in her petition, highlights instances where the husband is alleged to have slighted her, and perpetuated acts of verbal cruelty on her. These include threatening to leave her on a highway on a New Year's Eve, taunts and refusal to take care of her during pregnancy, unsupportive and insensitive behavior after she underwent an abortion, and insinuations of his involvement with other women, to her (the wife). She also alleges that the husband humiliated and insulted her at various places, including in her matrimonial home, at Vasant Vihar, in New Delhi. According to her, the husband even displayed violent behavior in public, and tried to throttle her. She also alleges that the respondent made her spend money on various occasions, without prior information. She alleges acts of further cruelty, including kicking and slapping by the husband, on 15th October, 2008, which compelled her to come away to Delhi and start living with her parents from the next day onwards.
3. The wife alleges that she is not employed, and without a source of income. She is at present enrolled as a regular student in the University of Derby, UK, where she is pursuing her MA in Human Resource Management. It is alleged that she is unable to afford her education and has borrowed of ` 750,000/- from HDFC Bank, Green Park, New Delhi. It is alleged that the entire amount has been spent on enrolment, fees etc. It is submitted that her living expenses total of ` 2,00,000/- for six months and the cost of living, excluding cost of accommodation is about of ` 74,000/- per month. She is however, restricting her claim to of ` 50,000/- per month. It is submitted that the husband is an MBA from Queensland University, Australia, enjoys high status and is leading a lavish life style. It is submitted that his annual income is of ` 40,00,000/-; that he travels always by air, and stays in expensive five star hotels. It is alleged that he also owns a CS (OS) 1948/2009 Page 2 house in Wadala (East) Mumbai, the cost of which is more than of ` 1 crore. He has fixed deposits to the extent of ` 50 lakhs to his credit, and owns shares and securities worth more than of ` 35 lakhs. The wife claims that she is at present being maintained by her family, including her parents even though the husband has the responsibility of doing so.
4. The husband, in his written statement, and reply to the application for ad-interim order of maintenance, denies all allegations of cruelty and misbehavior leveled against him by the wife. He submits that the latter (i.e the wife) is guilty of suppressing material and relevant facts. He alleges never having represented that he enjoyed an annual income as made out by the wife, in her petition. Claiming that his married life was stressed from inception, he submits that the wife was always made aware of his modest lifestyle, and was never kept in the dark about his income, or his possessions. The husband denies owning any property in Delhi and states that what was told to the wife before their marriage was that the house there would become the matrimonial home, eventually, and the couple would first make a home in Mumbai. The husband alleges that the wife used to smoke, a habit which was not known to his mother, in whose presence, she indulged in it; later she promised to stop it. The husband levels allegations against the wife, contending that there was some ambiguity in the divorce from her previous marriage, which delayed the registration of their marriage. It is alleged that the wife, at her insistence, and to keep her happy, was presented a diamond solitaire, worth of ` 72,000/- which was beyond his (the husband's) means, and ordered from her family jeweler.
5. The defendant husband alleges that he is employed at Nevis Network, and is earning of ` 50,000 - 55,000/- per month. His written statement outlines various instances of alleged cruel, insulting and unacceptable behavior by the wife, which she indulged in, with him, and his family members, etc. The husband submits that he is an MBA from Central Queensland University, and that his annual income is not ` 40 lakhs, but far more modest. He also denies leading a lavish life style, and denies owning fixed deposit receipts and shares to the extent and value, alleged by the wife in her petition. It is submitted that his income earning capacity has gone down considerably on account of various ailments suffered by him, including stress related hypertension and impaired vision, on account of blurring in the eye due to floaters, in the left eye. He adverts to various medical and hospital investigations. He refers to his left eye impairment as CS (OS) 1948/2009 Page 3 caused by odema which has permanently caused damage. He submits that the eye was operated upon on 28th November, 2008.
6. The husband defendant alleges that the wife's whereabouts are unknown to him for more than a year, and that he fears that if he were to contact her, she would create undue and enormous stress to him, which can trigger another attack, leading to loss of sight. The wife, it is stated, is already an MBA, and the document filed by her discloses a contradiction between the university letter of offer and her pleadings; whereas she says that the course is of 36 months duration, the documents relied on by her, states that the course would be over by 10th April. The wife is highly qualified, and according to the husband, has a very good income earning capacity.
7. The parties reiterated the contentions in the pleadings, during the submissions. To clarify the facts, both of them were asked to file affidavits, by the court's order dated 28.07.2010. The defendant filed copies of his income tax returns for the years 2008 - 2009, 2009-2010- 2011 and stated that recently he paid additional income tax for Annual Year 2008-2009 he had to take a loan from his my employer. He also filed photocopies of pay slips for the previous six months, of his salary and submitted that his current salary is ` 56,532,00/- per month, which is slightly variable depending upon performance. He submits that his income earning capacity and performance suffered due to hypertension, macular odema and hemorrhage - permanent the to my left eye and hemorrhage to the right eye. His vision is permanently reduced and restricted by floaters in the eye caused. He attributes these to atrocities, committed by the wife on him. He claims a monthly expenditure of `.3,000/- on account of medical check-up and for treatment. He claims to incur travelling expenses of ` 5000 per month, and states that his old parents are dependent on him; his father, aged 76, suffers from coronary heart disease, and his mother, aged 65, suffers from Ulcer-o-colitis and its complications and has undergone multiple surgeries for it. He submits having to take care of the medical expenses of his parents and paying a sum of ` 6,000/- as salary to the attendant engaged to look after them; he has also employed a maid for cooking and cleaning, and pays her ` 3500 per month. His expenses for internal maintenance of the house including outgoings for electricity, etc are ` 5500/- per month, besides which he incurs expenditure on different heads to which on food and grocery including of his parents are ` 15,000/- monthly, and CS (OS) 1948/2009 Page 4 expenses towards clothing, phone bills, internet, cable etc are ` 3500/- per month; miscleallenous expenses are ` 2500/- per month. These result in hardly any surplus or savings. The husband says that he will also probably have to pay a contingent monthly expense of ` 4000/- towards building repair, levied by the housing society.
8. The plaintiff, in her affidavit, deposes that she is pursuing Masters in Human Resources Management and course duration, which is of one and half years and the graduation ceremony is to take place in January 2011. She submits that her student visa was valid till 31st of August 2010; she surrendered her passport with the U.K. Border Agency and she submits that it will take around ten weeks before the passport is returned to her. According to her, she is legally allowed to stay in U.K. till the passport is with the U.K. Border Agency. She further alleges not owning any movable or immovable property in India or anywhere else, and also that she does not have any income and has not worked anywhere, or indulged in any gainful activity or gainful employment after the marriage till date. It is submitted that her University fees was UK £ 8,200 besides fees, living expenses in U.K. (which is about UK £ 7000).
9. The parties' counsel reiterated the submissions, based on pleadings in the case, and the documents on record. It is argued by the wife that the husband's particulars would disclose that he is a man of means, and not shouldering the obligation cast on him in law, to maintain her in reasonable comfort, according to the status she was enjoying, and is entitled to. It is submitted that the husband has not denied ownership of a flat in Mumbai, his job, etc, and the affidavit filed by him in support of his case, pursuant to orders of this court only disclose that he is possessed of sufficient means. It is argued, besides that the story propounded by him, about his illness and so called obligation to his parents, etc are not borne out by the records. The husband, on the other hand, highlights that even though in the pleadings, the petitioner wife has sought to plead that the course pursued by her is for 36 months, the later affidavit belies the plea, since the course ended in August, 2010. It is urged that the fact that the petitioners case that she is not earning anything or is not possessed of any means, is belied, as by her admission, she is able to bear expenses to the extent of UK £ 16,000/- per annum, which works to ` 11 lakhs per annum.
10. Here, the parties have leveled allegations of cruelty against each other. While it would not be possible or appropriate at this stage, to analyze the relative merits, as those pleas CS (OS) 1948/2009 Page 5 would have to be tested during the trial, the fact remains that the petitioner wife has disclosed, prima facie, that she is not employed. The husband alleges that she is possessed of means, and that his income is modest, and insufficient to meet any direction to pay maintenance. It is emphasized that the wife's plea about having secured an education loan, and staying on in the United Kingdom, even after conclusion of the course, cannot be taken at face value.
11. In this case, there is a subsisting marriage between parties to the marriage. Section 18 of the Hindu Adoptions and Maintenance Act, 1956 governs a fact situation like the present one. It reads as follows:
"Section 18 - Maintenance of wife (1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time.
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance-
(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or wilfully neglecting her;
(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;
(c) if he is suffering from a virulent form of leprosy;
(d) if he has any other wife living;
(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;
(f) if he has ceased to be a Hindu by conversion to another religion;
(g) if there is any other cause justifying her living separately. (3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion..."
Commenting about the obligation of the husband, to maintain his wife, the Supreme Court said, in the case of Jasbir Kaur Sehgal (Smt) v. District Judge, Dehradun and Ors (AIR 1997 SC 3397) while accepting the proposition that it may not be possible to lay down a straight jacket formula to determine the quantum of maintenance, which the Court would award to the wife and the children claiming maintenance, it was specifically noticed that wherever there is an attempt on the part of the husband to withhold his correct income and information in regard to his CS (OS) 1948/2009 Page 6 property from the Court, the Court would draw adverse inference and fix appropriate maintenance. The Supreme Court in that case held as follows:
"No set formula can be laid for fixing the amount of maintenance. It has, in the very nature of things, to depend on the facts and circumstances of each case. Some scope for leverage can, however, be always there. The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate..."
In Mangat Mal (Dead) and Anr. v. Punni Devi (Smt) (Dead) and Ors: AIR 1996 SC 172 , the Supreme Court, outlining the ingredients that go in for determining maintenance, held as follows:
"19. Maintenance, as we see it, necessarily, must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less, to which she was accustomed. The concept of maintenance must, therefore, include provision for food and clothing and the like and take into account the basic need of a roof over the head. Provision for residence may be made either by giving a lump sum in money, or property in lieu thereof. It may also be made by providing, for the course of the lady's life, a residence and money for other necessary expenditure. Where provision is made in this manner, by giving a life interest in property for the purposes of residence, that provision is made in lieu of a pre-existing right to maintenance and the Hindu lady acquires far more than the vestige of title which is deemed sufficient to attract Section 14(1).
20 xx xx xx xx xx xx xx
21. The Hindu Adoption and Maintenance Act, 1959, was enacted to amend and codify the law relating to adoption and maintenance among Hindus, and it defines maintenance in Section 3(d) to include (i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment..."
12. The husband, here, has filed his income tax returns. He urges that his monthly income is in the range of about ` 51,000/- and that on account of eye impairment, which is permanent, his income earning capabilities have diminished. He has produced some salary slips; he has, pursuant to orders of court, also produced on oath, documents such as past three years' income tax returns. The latter reveal that for the year 2008-09, the gross CS (OS) 1948/2009 Page 7 annual income of the husband was ` 976,547/-; the tax paid for that year was ` 220, 736/-; for the year 2009-10 it was ` 14,18,225/- and tax paid was ` 3,42,146/-; for the year 2010-2011, the total income was ` 12,32,835/- and the tax paid was ` 2,52,665/-. According to him, the outgoings and personal expenses, including what he sends towards his parents' maintenance, and that of his household and flat, is about ` 36,000/- per month. Prima facie, the husband's average monthly income, based on his income tax returns alone, for the past three years, is in the range of ` 78, 112/78.
13. In this context, it would be relevant to notice that in Vinod Dulerai Mehta v. Kanak Vinod Mehta AIR1999 Bom 120 the court held that while determining quantum of maintenance to be awarded, income tax returns are not the sole guide for determining the income of the party. Such tax returns, it was held, did not reflect the true income of the party for several reasons. Therefore, they cannot, be the sole guide. This approach had been adopted in an earlier decision reported as Smt. Neelam Malhotra v. Rajinder Malhotra and Ors. AIR 1984 Delhi 234, and subsequently, in Smt. Renu Jain v. Mahavir Prashad Jain AIR 1987 Delhi 43.
14. The wife's affidavit and pleadings are vague, and to an extent, at variance, inasmuch as the correct duration of the course she is pursuing has not been exactly revealed. Also, there is no documentary evidence on the record to substantiate the plea that she can stay on in the UK till she receives her degree, and that the passport is deposited with the immigration authorities. At the same time, the husband has not been able to point out that the wife has any known means of livelihood; the court is invited to deduce that she has such income, and is possessed of means. While it is true that pursuing higher studies in UK and other countries by spending hard currency is expensive, the court at this stage cannot also discard a plea that she obtained an education loan to pursue such studies. As far as value of the parents' assets are concerned, the court is of the opinion that such assumed valuation or indeed proof of a wife's father's income, is an irrelevant factor, having regard to the obligations arising from Section 18. This court therefore, has to arrive at some rough figure for maintenance, by doing equities between parties.
15. Now the husband has mentioned his diminishing income levels on account of ailment, which is a plausible explanation. In support of this condition, he has filed copies of his medical examination reports and treatment undergone by him, sometime in November-
CS (OS) 1948/2009 Page 8 December 2008. The court cannot prima facie comment on these materials; they do reveal some damage to his eyes, and further that he is hypertensive. At the same time, the court is also alive to the fact that ever since December 2008, the husband's income levels have not dipped so significantly as to reveal a drop in earning. As noticed earlier, his average total monthly income, based on income tax returns (post tax) each month, is over ` 78,000/-. Even if the husband's explanations about expenses are taken in their face value, these materials lead the court to conclude that he would be in possession of about ` 40,00/- as surplus income. Having regard to these factors, the court is of opinion that on an overall conspectus of the circumstances, the reasonable amount of maintenance in such case payable to the wife, would be ` 20,000/- per month.
16. In view of the above findings, the respondent husband is directed to pay to the petitioner wife ad-interim maintenance at the rate of ` 20,000/- per month, from 1st January, 2010. He shall ensure that such payments are made each succeeding month, during pendency of the petition, to the wife, on or before the seventh day of the calendar month. It is open to him to remit the amount to the wife's account, if the same is provided. The arrears of maintenance, payable for the period till date, shall be paid to the petitioner wife on or before 31st January 2010. IA 13326/2009 is allowed in the above terms.
SUIT NO. 1948/2009List the suit before the Joint Registrar on 14th February, 2011 for admission and denial of documents. List before court on 21st March, 2011 for framing issues.
S. RAVINDRA BHAT
(JUDGE)
DECEMBER 13, 2010
CS (OS) 1948/2009 Page 9