Satish Kumar Aggarwal vs Subha Aggarwal on 19 October, 2022

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Delhi High Court

Satish Kumar Aggarwal vs Subha Aggarwal on 19 October, 2022

1. The present revision petition has been filed challenging the order dated 16.05.2018 passed by the learned Additional Sessions Judge/ Special Judge (PC Act) CBI-3, South District, Saket Courts, New Delhi whereby the order of the learned Trial Court has been modified and the amount of maintenance has been enhanced.

2. Brief facts leading to the filing of instant petition are that the marriage of the petitioner was solemnized with the respondent as per Hindu rites and customs on 13.07.2013. Upon disputes arising between the parties, a complaint was filed by the respondent under Section 12 of Signature Not Verified CRL.REV.P. 598/2018 Page 1 of 14 Digitally Signed By:ZEENAT PRAVEEN Signing Date:22.10.2022 13:02:59 the Protection of Women from Domestic Violence Act, 2005 ("DV Act") against the present petitioner alongwith an application for grant of interim maintenance under Section 23 of DV Act.

3. Learned Trial Court, after filing of the Written Statement and the affidavit by the present petitioner, passed the order on 26.07.2017 thereby awarding a sum of Rs.7,000/- per month as interim maintenance to the respondent. The order dated 26.07.2017 reads as under:

"Arguments addressed. Heard. Record perused. After considering the material available on record and the arguments addressed, this court is of the view that the marriage between the parties is not disputed. The fact that after her marriage, the aggrieved had started living alongwith respondents at her matrimonial house is also not disputed. Therefore, at this preliminary stage it is presumed that prima facie aggrieved has brought on record that there was sharing of domestic relationship in a shared house hold. Now coming to the allegations in regard to infliction of violence, in this regard it is pertinent to mention that in the DIR filed by the Protection Officer and also in the petition the aggrieved has alleged infliction of physical, emotional, mental and economic abuse. The said facts have been denied by the respondents but in this regard this court is of the view that allegations and counter allegations of infliction of violence cannot be decided at this stage and the same are matter of trial. Hence, at this preliminary stage it is presumed that there was infliction of violence and therefore, the aggrieved is entitled to claim maintenance from the respondent.

Now coming to the maintenance aspect.

In the income affidavit filed by aggrieved she has stated her educational qualification to be a graduate and stated that she is presently unemployed and dependent on her parents. As Signature Not Verified CRL.REV.P. 598/2018 Page 2 of 14 Digitally Signed By:ZEENAT PRAVEEN Signing Date:22.10.2022 13:02:59 per her, respondents had completed his BBA and is running his jewellery shop with monthly income of Rs. 2 lacs. In the income affidavit filed by respondent no. 1, he has admitted is educational qualification to be BBA but he is jobless. He alleged that all his expenses are borne by his friends and known persons. As per him aggrieved is an MBA and is getting salary of Rs. 40,000/- approximately per month.

Arguments heard by both the parties. Heard. Record perused. At the stage of addressing arguments, documents were filed by aggrieved alleging that the mobile number which are mentioned in the advertisement which are available online, belongs to respondent which shows that he is running the said jewellery shop. She has also filed a photocopy of pamphlet which shows that respondent is also contesting some election.

It is also pertinent to mention that as per bank statement of aggrieved, she was earning approximately sum of Rs. 25,000/- per month from her previous job. It was orally clarified by her she left her job in the month of October 2014 and thereafter she is not working. However, she was not able to clarify and give any specific reason for quitting her job. She alleged that due to her ill health, she is presently not pursuing her job. During arguments, it was also apprised to the court that aggrieved is a heart patient since her childhood, however, in the opinion of this court even if she was a heart patient since her childhood. However, in the opinion of this court, if despite her ailment if she was able to persue her job even after her marriage then she should clarify any specific reason for leaving her job and more so for not joining the job again after leaving the company of respondent no. 1. Moreover, considering the income affidavit of respondent no. 1, it is evident that he has not disclosed the complete details of his income or specific amount of salary being paid to him by his brother and explanation that how his friends are maintaining him. It is also interesting to know that he had agreed for settlement of his matrimonial dispute Signature Not Verified CRL.REV.P. 598/2018 Page 3 of 14 Digitally Signed By:ZEENAT PRAVEEN Signing Date:22.10.2022 13:02:59 for sum of Rs. 30 lacs which shows that he is also in good financial condition to pay such a huge amount. Admittedly aggrieved has also received sum of Rs.10 lacs from respondent which she has not returned.

Thus, considering all the abovesaid facts such as the qualification of aggrieved, her previous job details, the fact that respondent had not been able to specify regarding his income, the documents filed by aggrieved in relation to contesting election by aggrieved and in relation to his alleged jewellery shop, this court is of the view that respondent is expected to at least earn Rs. 50,000/- per month. However, also considering the fact that aggrieved is also capable of earning enough and Rs. 10 lacs is still with the aggrieved which was paid by respondent no.1 and is not returned by her, therefore, respondent no. 1 is directed to pay 7000/- to the aggrieved per month. The maintenance be paid from the date of filing of the present petition till pendency of trial or till her re-marriage.

Aggrieved is directed to provide bank account details to respondent, if any, so that the interim maintenance can be deposited in the account of aggrieved directly on or before 7th day of each English Calendar month. Arrears be cleared within six months from today. The default shall be viewed in terms of the judgment of Hon'ble High Court in Gaurav Sondhi Vs. Diya Sondhi-120 DLT (2005) 426. Any maintenance that has already been ordered to be paid shall be accordingly adjusted.

The application U/s. 23 of the DV Act is disposed off accordingly..."

4. An appeal under Section 29 of the DV Act was preferred by the respondent/complainant against the order dated 26.07.2017, and the amount of maintenance was enhanced from Rs.7000/- to Rs.15,000/- per month by the learned Appellate Court. The order passed by the Appellate Court, assailed in the present petition, reads as under:

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"11. Record reveals that both appellant and respondent No. 1 are well educated, qualified and capable of earning. The appellant is MBA and the respondent No. 1 is BBA. In the Bio-data furnished at the time of marriage, it was mentioned that respondent No. 1 owns a jewellery shop at Karol Bagh. The respondent No.l never disputed this fact that he had contested election of Councilor in Pilibhit. The appellant has admitted that she had been doing the job but stated that due to stress and cardiac problem, she had to leave the job as the doctor had advised her not to take stress. Her medical documents show that she had coronary disease when she was 9 years of age. She has given the instances in the application/petition u/s 12 of the Act as to how she was subjected to domestic violence. There used to be quarrel between the appellant and respondent No. 1. An MOU was entered into whereby they had agreed to take divorce by mutual consent. The respondent No. 1 has claimed to have paid Rs.20.0 lacs in terms of the MOU to the appellant but this fact has been denied by the appellant. She has stated that she never received any money nor she is interested to give divorce to the respondent No. 1. Although the trial court vide impugned order has observed that the appellant has admitted to have received Rs.10 lacs from the respondent No.l but in the petition, the appellant has denied this fact. The case is at the stage of evidence before the trial court. Whether the appellant had received any sum from the respondent No. 1 in terms of the MOU or not is a triable issue.

12. At present, the appellant has been living separately from her parents. She has not been earning. Admittedly, she is capable of earning but she has given the reason why she has not been working. Even otherwise, it would not be a ground to reject her claim for maintenance. It was held in the case of Sunita Kachwaha & Ors v. Anil Kachwaha (2014) 16 SCC 715 that merely because wife is earning something, it would not be a ground to reject her claim for maintenance. In the case of Kalyan Chowdhury v. Rita Dey Chowdhury, 2017 SCC Online SC 440, the maintenance was awarded to the wife even though she was working.

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13. In the instant case, the respondent No. 1 is well qualified. It is unbelievable that a person who had contested an election of a Councilor in Pilibhit has been working, in a petrol pump on a salary of Rs.7,000/- per month and he does not have any other source of income. Had he been not earning anything, how he claimed that he had paid Rs.20.0 lacs to the appellant pursuant to the MOU. The claim of the appellant appears to be more plausible that in order to avoid liability to pay her the maintenance, he sold his assets and settled in Pilibhit. It appears that he has concealed his income. In Bharat Hegde v. Saroj Hegde 140 (2007) DLT 16, it was observed:

"... Unfortunately, in India, parties do not truthfully reveal their income. For self employed persons or persons employed in the imorganised sector, truthful income never surfaces. Tax avoidance is the norm. Tax compliance is the except in this country. Therefore, in determining Che interim maintenance, there cannot be mathematical exactitude. The Court has to take a general view.."

I am of the view that the trial court rightly assessed his income as Rs.50,000/- per month for the purpose of deciding interim maintenance to the appellant.

14. After considering die factual matrix of the case, I am of the view that the interim maintenance of Rs.7,000/- per month ordered by the trial court appears to be too less for the appellant to maintain a fairly decent lifestyle. Looking into the status which the appellant had been enjoying at the time of her marriage and the capacity of the respondent No. 1, I am of the view that the appellant is entitled to get atleast Rs.15,000/- per month as interim maintenance. I accordingly modify the impugned order of die trial court and direct the respondent No. 1 to pay maintenance of Rs.15,000/- per month to the appellant. The interim maintenance shall be payable from the date of filing of the interim application till the disposal of the petition. The respondent No. 1 is also directed to clear the arrears of maintenance within six months. He is directed to deposit the maintenance in the bank Signature Not Verified CRL.REV.P. 598/2018 Page 6 of 14 Digitally Signed By:ZEENAT PRAVEEN Signing Date:22.10.2022 13:02:59 account of the appellant/aggrieved by or before 10th day of each English calendar month.

15. The appeal is accordingly allowed. The impugned order of the trial court dated 26.07.2017 is set aside."

5. The learned counsel for the petitioner stated that the learned Appellate Court has committed an error by not appreciating the documents produced on record and has enhanced the maintenance without noting that there is no child to be taken care of by the petitioner and an amount of Rs.15,000/- is excessive to grant to one person. It is also stated that the learned Trial Court did not appreciate that the respondent/wife is highly qualified and is more educated than the revisionist. It is stated that petitioner is only BBA whereas the respondent is MBA and was earning Rs.40,000/- per month prior to her marriage from a private job, while petitioner is a resident of remote village of district Pilibhit, Uttar Pradesh and has meagre source of income. It is also argued that the learned Appellate Court, without there being any proof of ownership of petrol pump of the revisionist has presumed so. It is also stated that the petitioner is only an employee at the petrol pump and is getting a salary of Rs.9,500/- per month. It is also argued that the Appellate Court committed an error by holding that since the revisionist has contested election for the post of Municipal Councilor and was elected, he has sufficient income to be able to pay Rs.15,000/- per month to the respondent. It is also stated that the revisionist has no jewellery shop as wrongly held by the learned Appellate Court. It is also argued that the respondent/complainant has already received a sum of Rs. 20 lakhs from the petitioner as part of Signature Not Verified CRL.REV.P. 598/2018 Page 7 of 14 Digitally Signed By:ZEENAT PRAVEEN Signing Date:22.10.2022 13:02:59 settlement arrived at between the parties on 26.08.2013 from which she wants to get out now. She has also not returned Rs.20 lakhs received by her. It is stated that the respondent has accepted and acknowledged before CAW cell proceedings dated 11.02.2014 that she was ready to return Rs.20 lakhs to the petitioner since she wants legal action to be taken against the petitioner. He has also pointed out the hand written letter dated 11.02.2014 mentioned above. It is stated that the respondent has neither returned Rs.20 lakhs nor is ready to comply with the MoU. It is argued that the revisionist had received Rs.20 lakhs after selling his property in Delhi. It is also pointed out that on 15.03.2016, the respondent/complainant had accepted her signature before the learned Trial Court regarding receipt of Rs.10 lakhs from the revisionist.

6. Learned counsel for the respondent, on the other hand, has drawn attention of this Court to an order dated 11.08.2016 where it is mentioned that the respondent has not received any amount from the petitioner and a letter dated 11.02.2014 had been got written under pressure by the police. In the said order sheet, it is also mentioned on inquiry being made by the learned Magistrate that she has filed a vigilance complaint in this regard and will be producing copy of the said complaint before the learned Magistrate. Learned counsel has produced a copy of order dated 11.08.2016 passed by learned MM-03, Mahila Court, South District, Saket Courts, New Delhi, taken on record which reads as under:

"Record perused. Clarification is required from the complainant. She is examined u.s. 165 Indian Evidence Act. She is directed bring the complaint filed by her in Vigilance Commission.

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Additional documents filed by Ld. Counsel for respondent. Copy supplied.

Put up for arguments on interim application for 11.11.2016."

7. I have heard arguments and I have also gone through the order passed by the learned Magistrate as well as the learned Appellate Court.

8. The contention of the learned counsel for the petitioner that the respondent is well qualified and has been earning Rs.40,000/- per month and, therefore, maintenance should not have been granted to her has no force since the petitioner has stated that she is suffering from coronary disease and is not working anywhere at present. The petitioner on the other hand before the learned Trial Court was not able to place on record any document to prove that the respondent is earning at present. It is settled law that it is not the capability to earn, but the actually earning which is the key to decide or reject claim for maintenance. The learned Appellate Court has rightly relied on the case of Sunita Kachwaha v. Anil Kachwaha (2014) 16 SCC 715 wherein it was held by the Apex Court that merely because wife is earning something, would not make a ground to reject her claim for maintenance more particularly when her earnings are not placed on record. The observations of the Apex Court read as under:

"8. The learned counsel for the respondent submitted that the appellant-wife is well qualified, having post graduate degree in Geography and working as a teacher in Jabalpur and also working in Health Department. Therefore, she has income of her own and needs no financial support from respondent. In our considered view, merely because the appellant-wife is a qualified post graduate, it would not be sufficient to hold that she is in a position to maintain herself. Insofar as her Signature Not Verified CRL.REV.P. 598/2018 Page 9 of 14 Digitally Signed By:ZEENAT PRAVEEN Signing Date:22.10.2022 13:02:59 employment as a teacher in Jabalpur, nothing was placed on record before the Family Court or in the High Court to prove her employment and her earnings. In any event, merely because the wife was earning something, it would not be a ground to reject her claim for maintenance."

9. The petitioner has not disputed that three days prior to the separation of the parties, he had gifted a property in Delhi by way of gift deed, owned by him to his real brother. It is the claim of the petitioner that it was not a gift deed but a sale deed and only by selling the same, he was able to generate Rs.20 lakhs which he had paid to the respondent. However, there was nothing on record before the learned Trial Court nor it was argued before this Court that the property was not gifted by way of gift deed but by a sale deed. Nothing has been placed on record before the learned Trial Court to suggest that Rs.20 lakhs were paid by the brother of the petitioner to him by sale of this property. Therefore, the learned Appellate Court committed no error in holding that in order to avoid liability to pay her maintenance, he had gifted his assets and had settled in Pilibhit, Uttar Pradesh. It is clear from the record that the petitioner did not come up clean on this aspect and, therefore, the Appellate Court had no option but to presume the income of the petitioner. The learned Trial Court has rightly referred to the observations in case of Bharat Hegde v. Saroj Hegde 140 (2007) DLT 16, which reads as under:

"... Unfortunately, in India, parties do not truthfully reveal their income. For self employed persons or persons employed in the unorganized sector, truthful income never surfaces. Tax Avoidance is the norm. Tax compliance is the except in this country. Therefore, in determining the interim Signature Not Verified CRL.REV.P. 598/2018 Page 10 of 14 Digitally Signed By:ZEENAT PRAVEEN Signing Date:22.10.2022 13:02:59 maintenance, there cannot be mathematical exactitude. The Court has to take a general view.."

10. Moreover, the petitioner is well qualified, he is an elected Municipal Councilor in Pilibhit, and he has claimed to have paid Rs.20 lakhs to the respondent for which he has not disclosed the source. On the one hand, he states that he has no source of income and he is very poor, and on the other, he has gifted his property situated in commercial area in Delhi to his brother. As there is no record to show that he had received Rs.20 lakhs from his brother, it is not clear as to how it was possible for him to pay Rs.20 lakhs to the appellant pursuant to the MoU.

11. As far as the question as to whether the petitioner owns a petrol pump or is working as a mere employee at the petrol pump is concerned, it is a triable issue which will be decided only after evidence is led by both the parties. If it is to be believed that he was earning only Rs.7,000/- per month working at a petrol pump, the question would arise as to how he could have paid Rs.20 lakhs to the respondent in the year 2013. The petitioner has also taken different stands before different courts regarding his income and has not submitted any proof of his income. The petitioner has not challenged the finding of the learned trial court regarding his income of Rs.50,000/- per month. The petitioner owns cars namely Skoda Rapid and Maruti Swift which also makes it suspicious that he has hidden his true income.

12. It is thus, clear that the learned Trial Court did not commit any error in presuming and upholding view of the learned Magistrate that he must be earning Rs.50,000/- per month.

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13. This court in the case of Bharat Hegde v. Saroj Hegde, 2007 SCC OnLine Del 622 also laid down the relevant factors to be considered while deciding interim maintenance. The same reads as under:

"8. Unfortunately, in India, parties do not truthfully reveal their income. For self-employed persons or persons employed in the unorganized sector, truthful income never surfaces. Tax avoidance is the norm. Tax compliance is the exception in this country. 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 application under Section 24 of the Hindu Marriage Act. The same are:

1. Status of the parties.

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. Non-applicant's liabilities, if any.

7. Provisions for food, clothing, shelter, 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 sources 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 the Act..."

14. The respondent is entitled to lead as decent life style as enjoyed by the petitioner and as was enjoyed by her at the time of marriage and as per capacity of the petitioner.

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15. The conduct of the respondent/wife of having given a statement to the learned MM-01, Mahila Court, South-West on 15.03.2016 shows that she had admitted before the learned Magistrate that she had taken Rs.10 lakhs and is ready to return it. Even during the course of arguments before this Court, she admitted that she had received Rs.10 lakhs, however, the same have been taken by her parents and she is not on good terms with her parents. On 11.08.2016, she was examined by learned MM-03, Saket under Section 165 Indian Evidence Act wherein she admitted her signatures on letter addressed to CAW cell dated 11.02.2014, however, she denied that she had received even a single penny from the revisionist and stated that the letter was written by her under pressure. On 11.11.2016, respondent/wife had filed complaint dated 17.05.2016 which she filed in the Vigilance Cell for complaint regarding forceful signature of her being obtained on settlement documents. Therefore, the respondent has taken different stands regarding payment of money from the petitioner, however, in view of her categorical admission before the learned Magistrate on 15.03.2016 regarding receipt of Rs.10 lakhs and before this Court at the time of arguments, it is clear that she had received Rs.10 lakhs from the respondent. It is stated that there is no receipt or account of receipt of Rs.20 lakhs produced by the petitioner which shows that he has not come clean on this point to the Court. In this Court's view, however, even for Rs.10 lakhs that the respondent/wife has admitted to have received which have been allegedly taken by her parents towards expenses of the marriage, there is no receipt or account statement.

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16. This sum of Rs.10 lakhs, as per the submission of respondent before this Court, has been taken by her parents who are not on good terms with her. It is not relevant as to who has this money once it was given to her as part of settlement between her and the revisionist. It is for the respondent to take back this money from them. The question as to whether only Rs.10 lakhs or Rs.20 lakhs were received by her is a matter of trial. The case is at the stage of grant of interim maintenance when only a prima facie view of the case is to be taken.

17. Considering that the respondent has received Rs.10 lakhs which are with her since the year 2013 and that she is not burdened with any other responsibility except to maintain herself, this Court deems it appropriate that the amount of Rs.15,000/- per month be reduced to Rs.12,000/- per month. The petitioner is highly qualified and has no other liability and, therefore, she may also try and find a job for herself. The order passed by the learned Trial Court, thus, stands modified to the extent that the amount of maintenance of Rs.15,000/- is reduced to Rs.12,000/- per month.

18. The present petition alongwith pending applications stand disposed of in the above terms.

19. Nothing expressed herein shall tantamount to an expression of opinion on the merits of the case.

20. Copy of this order be sent to the learned Trial Court forthwith.

SWARANA KANTA SHARMA, J OCTOBER 19, 2022/ns Signature Not Verified CRL.REV.P. 598/2018 Page 14 of 14 Digitally Signed By:ZEENAT PRAVEEN Signing Date:22.10.2022 13:02:59

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