Delhi District Court
Smt. Surinder Kaur vs Bakshish Singh on 4 June, 2013
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SMT. SURINDER KAUR V/s BAKSHISH SINGH
HMA No. 676/12
04.06.2013
O R D E R:
1. Vide this application filed U/S 24 of HMA, the petitioner/wife has sought interim maintenance for herself as well as for her minor child. No doubt the title of the application is showing it to be only U/S 24 of HMA, also equally true that prayer clause does not mention any interim relief for minor child as prayer is only with respect to the petitioner herself, the entire contents of the application are throughout stating about the expenses of the minor child who is stated to be fully dependent on the petitioner and her parents for her basic requirements of life as well as requirements of education.
2. The petitioner/wife has alleged that she is the legally wedded wife of the respondent/husband and as such he is legally and morally bound to maintain her and the minor son which he failed to do ever since 2000 when she is alleged to have been thrown out from the matrimonial house. Respondent/husband failed to maintain even the minor child ever since his birth. The petitioner/wife has no source of income to maintain herself and the minor 2 child and even to meet the litigation expenses. The petitioner/wife claims that respondent/husband has sufficient means to maintain the petitioner as well as the minor child as he is doing the business of Transport and having three mini trucks i.e. TATA 407 and he is also having provision store which he is running from his house and earning about Rs. 5000/ pm therefrom, besides this, the respondent is also alleged to be having rental income about Rs. 50,000/, and thus it is the allegation that respondent/husband is earning about Rs. 1,00,000/ pm.
3. Further alleged that respondent has no other liability except the petitioner/wife who is legally wedded wife and the minor child of the parties. Petitioner/wife further goes on to state that her minimum requirement of maintenance for herself as well as for the minor child is about Rs. 25,000/ pm. The petitioner/wife has made a prayer for the amount of Rs. 25,000/ pm as pendente lite, however, from the date of the alleged desertion i.e. 01.12.2000, and also she has prayed that litigation expenses of Rs. 33,000/. The entire contents of the application shows that maintenance has been sought jointly for herself and minor son of the parties.
4. In this case, respondent was duly served and though he put in 3 appearance way back on 05.02.2013 and even noted down the next daet, he appeared in person and sought time to file reply stating that he had already engaged a counsel but needed time. He also made certain submissions in person that he had never met the petitioner/wife for the last 15 years and that they had already obtained divorce by mutual consent at Tis Hazari Courts, Delhi itself, and that he even can produce the certified copy of the decree on the next date. (Reference is had to proceedings dated 05.02.2013).
5. On the next date i.e. on 16.03.2013, respondent did not appear at all and instead one late Smt. Gajender Kaur stated to be the mother of the respondent appeared and sought adjournment stating that respondent had met with an injury due to fall. The adjournment was given subject to the condition that respondent produces the medical documents on the next date.
6. In the meantime, the mother of the respondent even produced a document which was simply an affidavit on a two rupees stamp papers as per which the petitioner/wife had agreed that she has no objection with the respondent if he remarries and similarly the affidavit was also shown having been signed by the respondent. However, it was made clear to both the parties that their parents present that these affidavits cannot be taken as a legal 4 dissolution of the marriage between the parties if that was all on which they were relying. Verbally it was submitted by the petitioner that respondent had even remarried and has a daughter from the second marriage. Petitioner pressed for maintenance for herself as well as for minor child.
7. The son of the parties who is aged about 13 or 14 years of age studying in a government school till that stage i.e. on 16.03.2013, there was no application even filed to seek interim maintenance for him. On 16.05.2013, respondent again appeared in person, but his counsel was not available though earlier a copy off the application U/S 24 of HMA which was filed on 06.04.2013 had been duly received by an Advocate on behalf the respondent, however, no reply was filed thereto thereafter. Neither the respondent filed any reply in the main case nor he filed any reply to the said application, copy of which he already received on 06.04.2013.
8. Seeing the fact that the applicant/petitioner seems to be from lower middle class family and the child is also about 13 or 14 years of age, it was not deemed appropriate to adjourn the matter any further as respondent is clearly not interested to contest the present case nor the application and as such, Right to defence was closed and he has been proceeded exparte. 5
9. Ld. Counsel for applicant/wife also was not available and did not render any assistance. However, the application was taken up and queries were put to the petitioner/wife to determine the general status of the parties.
10. The petitioner/wife though discloses that long ago even prior to her marriage in the year 1998, she had done a course of manual typing but other than that she has not much educational qualification more than 12 th passed and she has no source of income and no professional training in any field. She has been left with 13 or 14 years child to bring up, with the help of her own parents. Her father has retired from Government of NCT Delhi lastly serving as Dispatch Rider.
11. It was admitted by the petitioner/wife and her father that the child is studying in a government school i.e. Sarvodaya Bal Vidyalaya, Chand Nagar, Delhi and his education is free and on the contrary he gets some grant for uniform etc. every year from the government which is either deposited in his account or given by way of cash. There was not a single documentary evidence available with the petitioner/wife in support of her claim regarding the transport business of the respondent/husband or about his rental income and about the provision store.
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12. It was also stated by the petitioner/wife herself that respondent had been even in jail for an offence U/S 392 IPC. As regards the transport business another income she stated that this was way back at the time when she was staying in the matrimonial home i.e. almost about 15 years back. However, an information was given that the respondent has remarried and he is sending his child of the second marriage to an expensive private school, however, once again, there is no documentary material on record.
13. On the whole, it is the case where there is no documentary evidence at all from the side of petitioner/wife and she has already separated 15 years back.
14. In Bharat Hegde v. Saroj Hegde, 140 (2007) DLT 16, our Hon'ble High Court taken note of the fact that : Unfortunately, in India, parties do not truthfully reveal their income. For self employed person or persons employed in the unorganized sector, truthful income never surfaces. Tax avoidance is the norm. Tax compliance is the exception in this country and held that. Therefore, in determining interim maintenance, there cannot be mathematical exactitude. The court has to take a general view. From the various judicial precedents, the under noted 11 factors can be culled out, which are to be taken into consideration while deciding an applicant under Section 24 of Hindu Marriage Act. The same are:
1. Status of the parties.7
2. Reasonable wants of the claimant.
3. The independent income and property of the claimant.
4. The number of persons, the non applicant has to maintain.
5. The amount should aid the applicant to live in a similar life style as he/she enjoyed in the matrimonial home.
6. Nonapplicant's liabilities, if any.
7. Provisions for food, clothing, shelther, education, medical attendance and treatment etc. of the applicant.
8. Payment capacity of the non applicant.
9. Some guess work is not ruled out while estimating the income of the non applicant when all the sources or correct are not disclosed.
10.The non applicant to defray the cost of litigation.
11.The amount awarded under Section 125 Cr.PC is adjustable against the amount awarded under Section 24 of Act.
15. In Jayant Bhargava V. Priya Bhargava, 181 (2011) DLT 602, this court laid down the factors to be taken into consideration for ascertaining the income of the spouse. The relevant portion of judgment is reproduced hereunder: "12. It is settled position of law that a wife is entitled to live in a similar status as was enjoyed by her in her matrimonial home. It is the duty of the courts to ensure that it should not be a case that one spouse lives in a life of comfort and luxury while the other spouse lives a life of deprivation, poverty. During the pendency of divorce proceedings the parties should be able to maintain themselves and should 8 be sufficiently entitled to the represented in judicial proceedings. It in case the party is unable to do so on account of insufficient income, the other spouse shall be liable to pay the same. (See Jasbir Kaur Sehgal (Smt.) v. District Judge, Dehradun and Ors., reported at V (1998) SLT 551, III (1997) CLT 398 (SC), II (1997) DMC 338 (SC) and (1997) 7 SCC 7).
13. A Single judge of this Court in the case of Bharat Hegde v. Saroj Hedge, reported at 140 (2007) DLT 16 has culled out 11 factors, which can be taken into consideration for deciding the application under Section 24 of Hindu Marriage Act.
14. Further it has been noticed by the Courts that the tendency of the spouses in proceedings for maintenance is to not truthfully disclose their true income. However, in such cases some guess work on the part of Court is permissible.
15. The Supreme Court of India in the case of Jasbir Kaur (Smt) (supra), has also recognized the fact that spouses n the proceedings for maintenance do not truthfully disclose their true income and therefor some guess work on the part of the Court is permissible. Further the Supreme Court has also observed that "considering the diverse claim made by the parties one inflating the income and the other suppressing an element of conjecture and guess work does enter for arriving at the income of the husband. It cannot be done by any mathematical precision".
16. Although there cannot be an exhaustive list of factor, which are to be considered in quessing the income of the spouses, but the order based on guess work cannot be arbitrary, whimsical or fanciful. While guessing the income are either not disclosed or not correctly disclosed, the Court can take into consideration amongst others the following factors:
(i) Life style of the spouse;
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(ii) The amount spent at the time of marriage and the manner in which marriage was performed;
(iii) Destination of honeymoon;
(iv) Ownership of motor vehicles;
(v) Household facilities;
(vi) Facility of driver, cook and other help;
(vii) Credit Cards;
(viii) Bank Account details;
(ix) Club membership;
(x) Amount of Insurance Premium paid;
(xi) Property or properties purchased;
(xii) Rental income;
(xiii) Amount of rent paid;
(xiv) Amount spent on travel / holiday;
(xv) Locality of residence;
(xvi) Number of mobile phones;
(xvii) Qualification of spouse;
(xviii) School(s) where the child or children are studying when parties were residing together; (xix) Amount spent on fees and other expenses incurred;
(xx) Amount spend on extracurricular activities of children when parties were residing together; (xxi) Capacity to repay loan.
16. In these circumstances, as laid down by various judgments of Hon'ble Supreme Court and Hon'ble High Court only a guess work can be adopted keeping in view the status of the parties of the present case.
17. Both the parties seem to be from lower middle class. Respondent has already gone to jail once and what kind of earnings he is having at present cannot be said. In spite of this, petitioner has pressed that since he is 10 maintaining his second wife and the minor child born out of the second marriage, the petitioner being the legally wedded wife and the minor child of the parties have the right to be maintained properly.
18. Keeping in view the entire facts and circumstances, particularly the fact that the education of the minor child is admittedly free, the other day to day needs as well as clothing, food and etc. are required to be met with, as also of the petitioner/wife herself by the respondent/husband, here is no way the respondent can shirk his responsibility.
19. Even otherwise, when he is admittedly remarried, he is obviously maintaining his second wife and child, there is no reason why he should not maintain the petitioner and the minor child.
20. As such, taking into consideration the general status of the parties and not having any material documents before the Court, a sum of Rs. Rs. 10,000/ per month in all (Rs. 5000/ each) is held sufficient in the circumstances. Besides one time litigation charges to the extent of Rs. 11,000/. The order of interim maintenance would be effective from the date of the filing of this application.
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Respondent/nonapplicant is directed to pay the arrears on the NDOH.
Application disposed off.
ANNOUNCED IN THE OPEN COURT (SUJATA KOHLI)
TODAY i.e. ON 4th JUNE, 2013 ADJ:WEST:THC
DELHI:04.06.2013