Bombay High Court
Rekha Deepak Malhotra vs Deepak Jagmohan Malhotra on 18 February, 1999
Equivalent citations: AIR1999BOM291, 1999(2)BOMCR656, (1999)2BOMLR209, II(1999)DMC453, 1999(2)MHLJ942, AIR 1999 BOMBAY 291, (1999) 2 ALLMR 601 (BOM), 1999 (2) ALL MR 601, (2000) MATLR 42, (1999) 2 MAH LJ 942, (2000) 1 MARRILJ 278, (1999) 3 CIVLJ 705, (1999) 2 CURLJ(CCR) 311, (1999) 2 DMC 453, (1999) 2 HINDULR 214, (1999) 2 BOM CR 656, 1999 (2) BOM LR 209, 1999 BOM LR 2 209
Author: S.S. Nijjar
Bench: S.S. Nijjar
ORDER S.S. Nijjar, J.
1. This suit has been filed by the plaintiff under section 18 of the Hindu Adoptions and Maintenance Act, 1956. She claims maintenance in the sum of Rs. 25,000/- per month. She also claims a sum of Rs. 75 lakhs to enable her to acquire on ownership basis a residential flat in or around the vicinity of the plaintiff's home at Worli.
2. Notice of Motion has been taken out for ad-interim and interim maintenance. At the ad-interim stage on 7th July, 1997, it was stated that the wife is earning an amount of Rs. 12,000/- per month. The defendant's income was alleged to be around Rs. 2 lakhs per month. Taking into account the above fact this Court directed the husband to pay a sum of Rs. 7,500/-per month from July, 1997. This amount has been regularly paid.
3. Briefly stated, it is the case of the plaintiff that the marriage was solemnised on 24th June, 1988, according to Arya Samaj Rites in Mumbai. The defendant is stated to be a professional artist and at present works as Audio Visual Director with Triton Communication of Mumbai. He shoots advertising films. He is said to be the sole proprietor of Sound and Visual Communication and also does job as a free-lancer in the name of Sound and Visual Communications. The plaintiff met the defendant in October, 1983. After several meetings the defendant proposed to the plaintiff. This proposal was accepted by the plaintiff and they were engaged in 1987. According to the plaint, even prior to the engagement the defendant was having an affair with a woman called Poonam. He promised to break up the affair when the plaintiff (hereinafter referred to as "the wife") protested about the same. Surname of Poonam is not given as she is said to be not married. Four years thereafter in 1992, the defendant (hereinafter referred to as "the husband") is said to have started an affair with a girl called Sunita. On confrontation the husband is said to have admitted the affair. Full name of Sunita is also not given as she is said to be married. It is stated that being unable to bear the mental trauma caused by the promiscuous conduct and extra marital affairs of the husband, the wife complained to the mother of husband. She' was requested to be patient by the mother. Relying on the assurances given by the mother, the wife continued to remain in the matrimonial home. Again in 1995, the husband is said to have had an affair with a model girl called Shimona Rashi. The husband is supposed to have provided Shimona Rashi an add on credit card of Dinners Club. This facility was, however, not provided to the wife. In fact, the wife discovered the add on credit card for Shimona accidentally when she came across a statement of account received from Dinners Club. When confronted by the wife, the husband did not deny- the existence of Shimona. He said that since she was only a young girl, the husband had provided her with the add on credit card of Dinners Club. He also stated that Shimona will be reimbursing him for the expenses. To pacify the wife the husband is said to have taken out another add on credit card of Dinners Club in the name of the wife. Thereafter the husband is alleged to have an affair with another girl at Ooty who registered in at the Taj Mahal Hotel in the name of Mrs. Malhotra. The wife is also alleged to have found a love letter in the wallet of the husband. This letter was said to have been destroyed by the husband when the wife confronted the husband with the said letter. In or about February, 1996, the husband had ostensibly gone to Gujarat for shooting for three days. The wife, however, discovered that he had not gone to Gujarat at all. Being unable to bear the mental trauma and agony caused by the continuous promiscuity and extra marital affairs of the husband, the wife was forced to leave the matrimonial home in February, 1996. Since then she has been residing with her parents. Apart from these pleadings in the plaint, it was also brought to my notice by Mr. Shah, learned Counsel appearing for the wife, that Shimona Rashi now goes under the name of Shimona Malhotra. She is alleged to have delivered a child sired by the husband. Thus, it appears that the marriage seems to have broken down. Allegations made in the plaint have been denied by the husband. It is stated that the dispute arose rather out of the unwillingness of the wife to have a child. The case put forward by the husband is that the wife is pre-occupied with her career and she refused to have any children. It is further stated that the wife has left the matrimonial home willingly. It is reiterated that the only cause for the matrimonial discord was that the wife was giving more importance to the career than raising a family Mr. Shah has vehemently argued that no matter how liberal an Indian wife may be, she cannot tolerate the continuous infidelity of the husband. He submits that rather than causing marital discord the wife dutifully remained within the confines of married life for a period of six years. He submits that the conduct of the husband is such which would amount to desertion by the husband of the wife. He also maintains that the aforesaid conduct of the husband is sufficient to establish cruelty of the husband against the wife. He further submits that after marriage the wife was residing in the matrimonial home which was at Worli. This is a three bed room flat. The workplace of the wife is also at Worli. Therefore, she hardly had any inconvenience of travelling from home to the office. Now having been turned out of the matrimonial home she is required to travel from Juhu to Worli every day. He submits that the wife is entitled to maintenance to enable her to continue to enjoy the status that she enjoyed in the matrimonial home. He further submits that the husband has stated the income to be Rs. 40,000/-. No proof has been given to show that this is the only income. Merely producing income-tax returns would not show or disclose the entire income. He submits that the stand taken by the husband is contradictory. On the one hand the fixed income of Rs. 40,000/- per month is projected whilst at the same time claiming on the other hand that the husband is not employed but works as a consultant. Therefore, he could not be receiving a salary. He further submits in ventures like advertising and modelling etc. most of the income is hidden. He submits that the husband has been leading a very lavish style of life, He travels abroad as well as all over India quite frequently. He is a busy socialite. Even according to the husband himself he enjoys the facilities of a Gold Card of the City Bank. All this, according to him, do not indicate that the husband is earning a meagre sum of Rs. 40,000/- per month.
4. Replying to the submission made by Mr. Shah, Mr. Patwardhan, learned Counsel appearing for the husband, submits that none of the ingredients for grant of maintenance as required under section 23 of the Act have been proved by the wife. He submits that the allegations made in the plaint are of a very general nature. No particulars have been given of any woman with whom the husband is said to have had the alleged affairs. The first affair with Poonam started allegedly even during the engagement of the parties. Inspite of that the wife went ahead and married the defendant. He further submits that under section 18(e) of the Act, the wife would have to prove that the husband is keeping a concubine in the same house in which she is living or that he habitually resides with the concubine elsewhere. He submits that there is no evidence whatsoever to show that the husband was ever bringing any other girl to the matrimonial home. There is also no evidence to show that he is habitually residing with the concubine either in the matrimonial home or elsewhere. He further submits that the cruelty which is postulated under section 18 of the Act should be such as to cause a reasonable apprehension in the mind of the wife that it would be harmful or injurious to live with the husband. He submits that there are no allegations whatsoever of physical abuse. All that is pleaded is mental cruelty. Similarly desertion would not be proved as the husband has never refused to reside with the wife. He has cited a number of authorities on various points which are all well established. Thus I do not find it necessary to make any reference to the same. He submits that the allegations made by the wife about the adulterous life are wholly unwarranted. With regard to the child which has been born to Shimona Rashi or Shimona Malhotra, as the case may be, the wife has failed to produce any documentary evidence in the form of a birth certificate etc. It is only her word against the husband. He submits that from 1988 till 1996 she resided with the husband. No reasons are given as to what prompted the wife to leave the matrimonial home all of a sudden in 1996. Relying on the averments made in the affidavit in reply, Mr. Patwardhan points out that the paternity of the child is disputed by the husband. The husband has denied being in possession of a Dinners card but he has candidly admitted having the facility of City Bank Gold Card. He has also admitted the additional card which was given to Shimona. He has, however, given a justification that Shimona is the daughter of a family friend. She is not living with the family. The additional card was given to her in order to prevent any mishap, as she was living alone.
5. With regard to the quantum, Mr. Patwardhan states that the wife is not entitled to any maintenance whatsoever. Even on her own showing she is earning a sum of Rs. 12,000/- per month. She is working with a well reputed foreign company. She in fact is holding Senior Managerial position in the company. She travels in a chauffeur driven car. This is not denied by the wife. Her explanation is that the chauffeur is not provided by the company but she herself pays Rs. 2,500/- to the chauffeur. Mr. Patwardhan, there fore, states that the wife is sufficiently looked after. Therefore, she is not entitled any maintenance.
6. With regard to the status of the parties, Mr. Patwardhan submits that prior to the marriage the wife was living with her parents in a huge bungalow at Juhu. After marriage in fact she moved down the social ladder by residing with the husband and his parents in the flat at Worli. This flat consisted only of three bed rooms, kitchen and hall. This flat was also being shared by the husband with the parents and his brother and sister. He submits that whereas the father of the wife is a retired Scientist, the father of the husband is a retired Officer (Chief Manager-Personnel) of Hindustan Petroleum Corporation. He further submits that the father of the wife is a very busy consultant to various organisations.
7. I have considered the various arguments put forward by the learned Counsel for the parties. While deciding application under section 18 of the Act for maintenance, a number of factors have to be kept in view. This section, provides that subject to the provisions of this section, the wife shall be entitled to maintenance during her life time. It is conditional on the wife being able to satisfy one or the other grounds mentioned in sub-section (2). Section 18(2)(b) provides that a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it would be harmful or injurious to live with her husband. Keeping this provision in mind the facts narrated by the wife have to be prima facie looked into.
8. One of the principles to be kept in mind whilst deciding the question of cruelty is to see whether the acts have been condoned or not. At this prima facie stage, it cannot be held that the acts of cruelty had been condoned by the wife. The fact that the wife had tolerated the behaviour of the husband cannot be held against her. At this interim stage the Court has to gather a general impression. The husband has admitted providing the Add on Card of the City Bank to Shimona. The plea put forward is that she is a daughter of a family friend. Since she was staying alone her parents requested the husband's parents to look after her. The allegation that Shimona has given birth to a child by the husband, are sought to be denied on the ground that the wife has not produced any documentary evidence. From the above, I am prima facie of the view that the wife was quite justified in leaving the matrimonial home. The fact that Shimona Rashi now goes under the name of Shimona Malhotra, would prima facie show that the allegations made by the wife are substantive in nature. They have not been made up merely for the purpose of filing the suit. I do not find much substance in the plea of the husband that the wife left the matrimonial home, all of a sudden, voluntarily. The wife left after she read about the birth of the child of the husband and Shimona sometime in January, 1997. In the face of the case put forward by the husband about Shimona being daughter of a family friend, the provision of add on card, read with the fact that Shimona had changed her name to Shimona Malhotra, I find no substance in the submissions of Mr. Patwardhan. All that the husband has stated in the affidavit in reply is that the wife left the matrimonial home as he was insisting of having children. It is his allegation that the wife is more concerned with her career prospects than with raising a family. These allegations have been made only to put up some defence to the allegations made by the wife. The parties were engaged for sometime before marriage. They are by all accounts very modern people. Both the parties were and are committed to their respective careers. It is not unheard of that such people may decide not to have a child, at least in the early years of marriage, so that their careers do not suffer. Merely because the wife is successful in her own career does not lead to the conclusion that she does not want to have a family. Prima facie I find that the case put forward by the husband is wholly unnatural. In my view the wife has made out a prima facie case for grant of interim maintenance.
9. Having said all this, whilst deciding the case for maintenance under the Act, Courts do not apportion blame to the parties. What is to be seen is whether there has been a breakdown of marriage. If the parties do not find it feasible to live together then the wife would be entitled to maintenance unless her behaviour is such which would even disentitle her from claiming the relief of divorce. I am unable to hold that the behaviour of the wife is such that she would be wholly unjustified in leaving the matrimonial home. In any event, these are matters to be decided on the basis of evidence at the final decision of the suit. What is important in these proceedings is to see as to what is the status enjoyed by the parties and what is the relative income of the parties for the purpose of grant of maintenance. The husband has admitted that his income is Rs. 40,000/-. From a perusal of the accounts of the credit card produced by the husband it is apparent that he is having quite expensive tastes. The restaurants frequented and the shops visited for the purchases leave ho manner of doubt that the husband is living a lavish life. Therefore, there may be some justification in the submission made by Mr. Shah that the assessment of income by the husband at Rs. 40,000/- is not realistic. On the other hand it is to be seen that the wife is also admittedly earning Rs. 12,000/- per month. She has also admitted that she is paying to a chauffeur a sum of Rs. 2,500/- per month. Certain medical bills which have been attached with the rejoinder indicate that perhaps the medical expenses are also being reimbursed. She is also holding a very high ranking position. Therefore, it would also not be possible to hold that the income of the wife has been correctly reflected. If the perquisites are included in the income it would perhaps be much higher than Rs. 12,500/-. So far as the status is concerned I find force in the submission of Mr. Patwardhan that she is better off living with the parents in a bungalow at Juhu than in a cramped flat at Worli.
10. The amount of maintenance would have to be fixed by taking a rational and balanced view of various factors. The Court has to be guided by the relevant provisions of the Act and the object of sections 18 and 23. Thus the Court has to bear in mind the status of the parties, reasonable wants of the claimant, the income and property of the claimant and the number of persons whom the husband has to maintain. Whilst it is important to ensure that the maintenance amount is sufficient to enable the wife to live in somewhat the same degree of comfort, as in the matrimonial home, the amount of maintenance should not be so exorbitant that the husband is unable to pay. By adoption of such a course, no purpose would be served. In other words, the amount of maintenance should not be punitive in nature. It should aid the wife to live in a similar style as she enjoyed in the matrimonial home. It should not expose the husband to unjustified contempt or other coercive proceedings. On the other hand the amount of maintenance should not be so low, as to make the order meaningless. Naturally, there can be no mathematical exactitude, in these matters. The Court has to take a general view, and try to fix an amount which would be by and large acceptable to both the husband and the wife. A perusal of the order passed by Justice Kapadia at the ad-interim stage would show that a maintenance of Rs. 7,500/- at ad-interim stage was granted on the allegation that the income of the husband was Rs. 2 lakhs. At the same time it is to be noticed that the various factors which have been now brought out on affidavit were not before this Court at the ad-interim stage. In my view, income depicted by both the sides is very much on the lower side. The husband could not be enjoying such a high standard of living unless he was earning extremely well. On the other hand the wife could not possibly afford to keep a chauffeur if her income was only Rs. 12,500/-. It would however be difficult to put a figure on the income of both the parties. There appears to be hardly any change in the style of life enjoyed by the wife. She continues to live with her parents in a bungalow at Juhu. Parents of both the husband and the wife enjoy independent income. None is dependent on the husband or the wife.
11. Keeping the aforesaid facts in view I am of the considered opinion that it would be just and proper that the husband be directed to pay a sum of Rs. 7,500/- per month as ordered in the ad-interim order. This would on the admitted fact give the wife an income of Rs. 20,000/- per month which should be sufficient to keep her in the style and status enjoyed by her, whilst living with the husband.
12. In view of the above, the Notice of Motion is disposed of with the following directions.
(a) The wife shall be entitled to maintenance in the sum of Rs. 7,500/- per month as ordered in the ad-interim order.
(b) The injunction granted in the ad-interim order is hereby vacated.
(c) If the husband commits any default in payment of any instalment of loan in respect of a flat purchased by the husband at Pune, the wife who is said to have signed as a guarantor shall not be held responsible for the same.
Certified copy expedited.