Delhi District Court
Lalit Ghai vs Vandana Ghai on 29 August, 2019
IN THE COURT OF SH. NAROTTAM KAUSHAL,
DISTRICT & SESSIONS JUDGE (SOUTHWEST),
DWARKA COURTS, NEW DELHI
CA No.02/2019 (No.92/2019)
MEMO OF PARTIES
LALIT GHAI
S/o Late Sh.B.G.Ghai
C/o AchalKohli,
R/o E76, Grd Floor, Street No.3,
Pandav Nagar, New Delhi110091
Appellant......
Vs.
VANDANA GHAI
W/o Sh.Lalit Ghai,
R/o DG 1, A3 A Block, Grd Floor,
Near Arya SamajMandir, VikasPuri, New Delhi
Respondent....
DATE OF INSTITUTION :25.02.2019
DATE OF RESERVING OF JUDGEMENT :19.08.2019
DATE OF ANNOUNCEMENT OF JUDGEMENT :29.08.2019
Argued by: Sh.Varun Gaur & Sh.Danish Mudgil, counsels for the appellant
Sh.Pushpender Kumar, counsel for respondent
JUDGEMENT
1 Present appeal is directed against Order dated 23.01.2019, whereby, Ld. MM (Mahila Court)02, S.W., Dwarka Courts, Delhi has disposed of application u/sec.23 of the PW DV Act, granting maintenance to the respondent/ wife and children.
CA No.02/2019 Page No.1 of 8 2.1 Appellant/ husband and respondent/ wife got married on 10.10.1997. From the matrimonial bonds, two children namely Ms.Geetansha & Master Chitransh were born. Ms. Geetansha is aged about 19 years and is currently a student of 2 nd year in B.B.A., which she is pursuing from a private college i.e. Jagan Institute of Management & Studies. Master Chitransh is aged about 15 years and is a student of class X in a private school. Parties to the marriage drifted apart and separated in October2017; though, continued living in the same house. However, w.e.f. 23.10.2018, respondent/ wife and the minor children shifted to a rented accommodation.
2.2 Respondent/ wife by way of the application u/sec.23 of the PW DV Act sought maintenance at the rate of Rs. 1,75,000/ per month from the appellant/ husband for herself and both the children. It has been pleaded that appellant has an income of Rs.4 Lakhs per month from his business of dealing & providing computer related services. On the contrary, respondent/ wife has no source of income. She is only 12 th class pass. Expenditure for education of both the children is sought and also for their sustenance. Appellant resisted the application claiming that his income, as reflected in his Income Tax Return, is Rs.27,639/ per month, whereas, his gross CA No.02/2019 Page No.2 of 8 expenditure was Rs.51,673/ per month. It is also the case of the appellant that the respondent/ wife has also been working in the past, till August2017 her income was about Rs.34,000/ per month. It is next the case of the appellant that the entire family had been living in the house of his mother. He has also now vacated the same and is living on rent. After hearing both the parties and perusing the record, the ld. MM, vide the impugned order awarded maintenance to the respondent at the rate of Rs.25,000/ per month for the sustenance. Additionally, appellant was directed to bear school/ college fee of both the children. Vide a separate order, which is not under challenge, appellant was also directed to pay rent of the premises occupied by the respondents.
3 Aggrieved by the impugned Order, present appeal has been preferred.
4 Sh.Varun Gaur, ld. counsel for the appellant has argued that the trial court has committed a grave error in awarding maintenance at a rate, higher than the gross income of the appellant. Over & above the expenses of the education of children, appellant has to bear expenses for his own rental accommodation and his own living expenses. Sh.Gaur has relied upon law CA No.02/2019 Page No.3 of 8 laid down in Shailja & Anr. Vs. Khobbanna reported as 2017 AIR(SC) 1174 and has argued that the respondent/ wife was working in the past and is capable of earning;, therefore, the maintenance should not be awarded to her at such a high rate.
5 Resisting the appeal, Sh.Pushpendra Kumar, counsel for the respondent has argued that the appellant is maintaining a Honda Amaze Car, an Iphone and a Macbook. He has also employed workers to help him in his business. He pays a salary of Rs.12,000/ per month to the employee. He has concealed his income by not reflecting the same in his Income Tax Returns. Till August2017, when the respondent was living in the matrimonial home, appellant had been diverting his income to her account, so as to avoid payment of income tax. It is next submitted that the children being grown up, the amount of Rs.25,000/, which has been awarded by the ld. Trial court is not on the higher side for a respectable living. It is next pointed out by ld. counsel that the issue of rent is not the subject matter of present appeal, as the same has been awarded by the trial court, by a separate order, which is not under challenge before this court. CA No.02/2019 Page No.4 of 8 6 I have heard the ld. Counsels and with their assistance, I have gone through the record and the impugned Order.
7 Short point involved here is, whether the amount of Rs.25,000/ awarded for maintenance of respondent and two children is justified or not. Secondly, whether the appellant is liable to meet the education expenses of both the children or not.
8.1 For awarding maintenance, first & foremost the court has to assess the income of the family and, thereafter, apportion the same, so that each person gets his due. The family income in the present case constitutes only that of the appellant/ husband. Though, the appellant has relied upon some ITRs of the respondent/ wife to show that she had been earning in the past, but he has himself admitted that she is not working since August2017. It has not been disclosed by the appellant, if the respondent had been working or had an independent source of income. The case made out by respondent is that income was shown in her I.T. Returns by the appellant to avoid his tax liability. In the absence of appellant/ husband placing on record any evidence to show that the respondent was employed in her own capacity or was engaged in business in her own capacity, the court shall CA No.02/2019 Page No.5 of 8 presume and accept the findings of ld. Trial Court that respondent/ wife had no independent source of income.
8.2 Appellant's case that he earns merely Rs.27,639/ per month has rightly been rejected by the Ld. Trial Court holding that his income & expenditure are not explainable. He claims to be spending much more than his income, which indicates that he is concealing his true income. The Ld. Trial Court, therefore, assessed his income to be in the range of Rs.90,000/ to Rs.1 Lakh per month. Though, there is no material on record to indicate this income, however, this court tends to accept the same. As per appellant's case, he has returned income of about Rs.27,639/ per month, whereas, as per his own case, respondent's returned income was Rs.34,000/ per month. As held in para no.8.1 above, the returned income of the respondent was actually the income of the appellant. Therefore, this income of Rs.34,000/ per month shall be added to the appellant's returned income, which comes to roughly Rs.61,639/. Further noticing that the appellant has been making maneuvers to avoid showing his entire income in the returns, the court accepts Trial Court's finding that the income of the appellant is in the range of Rs.90,000/ to Rs.1 Lakh. The finding does not seem to be perverse or without any justifiable reasons.
CA No.02/2019 Page No.6 of 8 8.3 The next question that requires adjudication is the apportionment of income between the appellant and the respondent. In terms of law laid down in Annurita Vohra Vs. Sandeep reported as (2004) I DMC 568 DEL, the share of the respondents comes to 3/5th of the family resource cake. The trial court has awarded an amount of Rs.25,000/ only towards the sustenance including the electricity and the water bills. Rent of the premises occupied by the respondent and the children has been separately ordered, which order is not before this court. The appellant has also been directed to meet the educational expenses of both the children. In these circumstances, I find no irregularity or perversity in the apportionment of the income, as ordered by the ld. trial court. Since the respondent is not earning or not capable of earning, the entire burden has to be upon the appellant. Education of children can not in any manner be compromised with, therefore, directions to the appellant to pay for the educational expenses of both the children is perfectly justified. Since the fee changes with change of school/college or on account of the child moving to the next higher level; therefore, without quantifying the amount, the ld. Trial Court has rightly directed the entire fee to be borne by the appellant. So what remains for adjudication by this court is only the amount of Rs.25,000/, which has been awarded towards sustenance, electricity charges and the water bills. This court is of the CA No.02/2019 Page No.7 of 8 opinion that for three grownups persons i.e. respondent herself, daughter Ms. Geetanashi aged about 19 years and the son Master Chitransh aged about 15 years; amount of Rs.25,000/ can not by any stretch of imagination be said to be obnoxious, perverse or disproportionately high. The children at this growing age need proper nutrition and good food, so does respondent/ wife. Therefore, this court is of the opinion that the amount of Rs.25,000/ can not be further reduced, considering the fact that parties have lead a comfortable life, when they were living together. Appellant had in any case been diverting an amount of Rs.34,000/ per month towards the returned Income Tax of the wife. Therefore, he certainly has this much of funds available with him, which he ought to spend upon the respondent and both the children.
9 Finding no perversity in the impugned Order dated 23.01.2019 passed by Ld. MM (Mahila Court)02, S.W., Dwarka Courts, Delhi, the same is upheld. Appeal is, thus, dismissed.
Appeal file be consigned to record room.
Digitally signedby NAROTTAM
NAROTTAM KAUSHAL
KAUSHAL Date: 2019.08.29
14:49:28 +0530
Announced in the open court (NAROTTAM KAUSHAL)
on 29.08.2019 District & Sessions Judge (S/W)
Dwarka Courts, New Delhi
CA No.02/2019 Page No.8 of 8