Delhi High Court
Pankaj Chawla vs Divya Kapoor on 8 January, 2019
Author: Sanjeev Sachdeva
Bench: Sanjeev Sachdeva
* IN TH E H IG H CO U RT OF D E L HI A T N E W D EL HI
% Judgment reserved on: 01st November, 2018
Judgment delivered on: 08th January, 2019
+ CRL.REV.P. 146/2017
PANKAJ CHAWLA ..... Petitioner
versus
DIVYA KAPOOR ..... Respondent
+ CRL.REV.P. 172/2017
DIVYA KAPOOR ..... Petitioner
versus
PANKAJ CHAWLA ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr.R.D.Singh, Adv. in CRL.REV.P. 146/2017
Mr. Osama Suhail, Ms. Samana Suhail and Ms. Bharti Tyagi,
Advs in CRL.REV.P. 172/2017
For the Respondents : Mr. Osama Suhail, Ms. Samana Suhail and Ms. Bharti Tyagi,
Advs. in CRL.REV.P. 146/2017
Mr.R.D.Singh, Adv. in CRL.REV.P. 172/2017
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J CRL.REV.P. 146/2017 & CRL.REV.P. 172/2017
1. These cross-petitions impugn order dated 19.01.2017, whereby, the Family Court has disposed of the interim maintenance application filed by the Wife - Divya Kapoor and directed the husband - Pankaj Chawla to pay CRL.REV.P. 146/2017 & CRL.REV.P. 172/2017 Page 1 of 10 a sum of Rs.24,000/- per month to the wife. Crl.Rev.P.146/2017 has been filed by the husband, inter alia, on the ground that the respondent is not entitled to any maintenance and Crl.Rev. P.172/2017 has been filed by the wife contending that the interim maintenance, assessed by the Trial Court, is on a lower side and way below the expenditure being incurred by the wife.
2. Parties married on 30.01.2013 according to Hindu rights and ceremonies. They separated on 10.04.2014. Subject application has been filed under Section 125 Criminal Procedure Code, 1973 (Cr.P.C. for short) on 25.07.2014 by the wife claiming maintenance at the rate of Rs.60,000/- per month besides litigation expenses of Rs.44,000/-. It is contended that the wife has no source of income of her own to meet out the daily expenses and day-to-day needs.
3. The application has been opposed by the husband, inter alia, on the ground that the wife is highly qualified and there is no justification for granting maintenance to her. It is contended that she has a Post Graduate Diploma in Business Administration and has the capacity and capability to maintain herself to earn her livelihood and is deliberately, willfully, knowingly and intentionally sitting idle and has not made any honest and sincere attempt to apply for any job.
4. It is further contended that the husband is already paying ad-interim maintenance at the rate of Rs.12,000/- and the wife has failed to show actual or real expenditure and, as such, there is no justification for granting her maintenance over and above the said amount.
CRL.REV.P. 146/2017 & CRL.REV.P. 172/2017 Page 2 of 105. The Trial Court, by the impugned order, has found that prima facie the affidavit of income, assets and expenditure, filed by the parties, show that the husband is a man of means and has sufficient source of income to maintain his wife and, accordingly, assessed the interim maintenance at Rs.24,000/-.
6. Learned counsel for the husband, during arguments, has relied on a report of CIBIL pertaining to the wife, wherein, CIBIL has reported that the annual income of the wife is Rs.9,58,320/-. The report of CIBIL is disputed by the learned counsel appearing for the wife, inter alia, on the ground that the report does not disclose as to on what basis it is reported that the wife is earning and has an annual income as specified therein. Further, it is contended that since the husband works in a Bank, he has manipulated the report and further that an individual has no control or is not privy to the documents, based on which, such a report is created.
Analysis and Reasoning
7. Perusal of the record shows that the husband has not placed any document to show that the wife is presently employed or working and is having any income. The report of CIBIL per se cannot be relied on to establish employment or source of income. The report does not disclose any basis on which income has been reported by CIBIL. There is no reference to any foundational document based on which income has been stated in the report of CIBIL. Apart from the report of CIBIL, the husband has not been able to establish that the wife is employed or has any source of income.
CRL.REV.P. 146/2017 & CRL.REV.P. 172/2017 Page 3 of 108. Admittedly, the husband is employed as Vice President in Barclays Bank. Records of the husband pertaining to his employment with Barclays Bank has been placed on record. As per the records the husband's annual salary, effective from 01.03.2017, is Rs.38 lakhs, which is inclusive to Flexible Benefit Plan. The gross monthly salary reported is 2,24,000/-. After deduction of statutory taxes etc., the net income is reported to be Rs.1,78,700/-.
9. Documents of Barclays Bank further show that the husband is entitled to House Rent Allowance of Rs.7,60,000/- per annum. The Flexible Benefit Plan comprises of several allowances, i.e., Telephone Reimbursement, Leave Travel Allowance, Medical Reimbursement, Special Allowance, Lunch Allowance, Conveyance Allowance, Car Allowance, Driver Allowance, Fuel Reimbursement, etc.
10. As per the income expenditure affidavit filed by the husband, it is admitted, that the net salary received is about Rs.1,80,000/-. Expenditure sought to be shown is Rs.1,98,000/-. Some of the expenditures, which have been sought to be claimed by the husband in income expenditure affidavit, are included in the Flexible Benefit Plan, i.e., allowances payable to the husband which take his gross salary to Rs.38 lakhs. Prima facie, such expenditure would not be admissible as a deduction since the same are being reimbursed by the office where the husband is employed.
11. The purpose of maintenance is to ensure that the wife, who does not have any independent source of income and is not in a position to maintain herself, is entitled to subsist and maintain a livelihood similar to the one CRL.REV.P. 146/2017 & CRL.REV.P. 172/2017 Page 4 of 10 that she was maintaining at the time when she was living with her husband in her matrimonial house.
12. Wife has claimed that she has a monthly expenditure of Rs. 98,000/-. This is disputed by the husband contending that the same is on a much higher side and has been inflated. One method to ascertain whether the expenditure claimed by the wife is reasonable or not, is to compare the same with the expenditure claimed by the husband.
13. If one were to do a comparative analysis of the expenditure, claimed by the husband and wife, the following emerges:-
Sr. Description Amount claimed Amount claimed No by the wife by the husband
1. Household Groceries/Food/ Rs.20,000/- Rs.22,000/-
Expenditure Personal Care/ Clothing Water Rs.200/- Rs.400/-
Electricity Rs.3,500/- Rs.3,000/-
Gas Rs.600/- Included in
Household
Expense above
Telephone Rs.1,000/- Rs.1,000/-
TV Cable/ Set-top Box Rs 400/- TV Rs.500/-
charges & Internet 1000/- (general
services package of
Maintenance, broadband
replacement services
and repair of household Included in
items, appliances and Household
kitchenware items. Expense above
Telephone Rs.2,000/-
Domestic full time/ part Rs.1000/- Included in
time Household
Expense above
2. Transport (i) Car/Scooter Rs.3000/- Car (Swift)
(a) Driver(s) Rs.8000/-
CRL.REV.P. 146/2017 & CRL.REV.P. 172/2017 Page 5 of 10
(b) Fuel Rs.8500/-
(c) Repair/Maintena Rs.3,000/-
nce
(d) Insurance Rs.650/-
(e) Loan Payment
(ii) Public As per
Transport requirement.
(a) Bus Yes
(b) Taxi Rs.1500/- Yes
(c) Metro Rs.800/- Yes
(d) Auto Rs.1500/- Yes
3. Medical Doctor Rs.500 Rs.1000/-
Expenditure on an average for
any general
illness
Medication Rs 500/- Rs.2000/-
for any general
illness
Hospitalization Health insurance cover would be required of Rs15000/- per annum to meet any exigency Other Medical Rs 500/-
Expenditure For
physiotherapy
per session not
going because of
money crunch.
Other (Specify) Rs 2000/-
on Lenses and
solution per
month
4. Insurance LIFE Life in the name Yes
of the Rs.529/-
complainant
taken by the
Respondent.
Same is in
possession of the
Respondent.
Annuity N/A Rs.1096
(Term Insurance)
Rs.2000
CRL.REV.P. 146/2017 & CRL.REV.P. 172/2017 Page 6 of 10
(ULIP Plan)
Householders N/A Nil
5. Entertainme Club Was a member of Nil
nt and "C Privileges",
recreation (it's a Holiday
and
Entertainment
club at Janak
Puri) with
husband
(Respondent),
cannot use it, as
detail and access
is with
Respondent.
Health Club Rs 3100 Nil
per month, to
Celebrity Fitness
Prior to
separation was
paid by the
Respondent
Presently due to
financial crunch,
deponent is
unable to carry
on the same.
GYM No. Nil
6. Holiday and No Rs. 2000/-
Vacation Holiday/Vacation (Average monthly
after separation. expense on trip to
Went to VAISHNO DEVI,
International: being a devotee)
Singapore &
Bintan National:
Vashno
devi,Amritsar,Jai
pur, All trips
were with
husband
(Respondent) in
3-5 Star category
hotels before
separation.
7. Gifts All the gifts are Rs.2,000/-
in the possession
of husband and
CRL.REV.P. 146/2017 & CRL.REV.P. 172/2017 Page 7 of 10
inlaws.
8. Pocket Rs.2,000/- Rs.5,000/-
Money/
allowance
9. Legal/ As raised from Rs.5,000/-
Litigation time to time. per month
Expenses
10. Discharge of Credit Card(S) Payment Liabilities Hire Purchase/ Lease i. Repayment OF Loan a. House Loan Rs.68,880/-
b. Car Loan Rs.6,000/-
(for Father's
Car)
c. Personal Loan INR. 22,371 EMI
starting from
04.06.15)
d. Business Loan
e. Any other loan Rs.14,400/-
ii. Name of the lender HDFC Bank,
Credit Card Loan
iii. Mode of repayment As per Credit
Card Statement.
iv. Instalment amount As above.
V. Other personal Have to return at Rs. 12000/- Paid
liabilities least 2.5 Lakh to as Maintenance
my Brother in to the
law & sister and Petitioner.
Rs 15,000 to
friend for old
laptop.
11. Miscellaneo Newspaper, Rs.400/-
us magazines, book
Religious Contribution Rs.500/- Rs. 2000/- to
/Charities Mata Vaishno
Devi as per
MANNAT
Other (specify)
12. Other Expenditure Rs.5000/ under Rs. 5000/-
Not specified above various heads. (Includes: Bank
Charges, Festival
Expense,Rent and
other Personal
Expenses
Total Expenditure Rs.98,000/- Rs. 1,98,600/-
Give Monthly Expenditure Approx
CRL.REV.P. 146/2017 & CRL.REV.P. 172/2017 Page 8 of 10
14. The expenditure claimed by the wife is far less than the expenditure which has been claimed under the corresponding heads by the husband. A comparative analysis of the expenditure items shown by the husband clearly establishes that the expenditure claimed by the wife is not on a higher side.
15. Though the expenditure claimed by the wife is about Rs.98,000/-, however, keeping in view of the income of the husband, I am of the view that the Trial Court should have fixed ad-interim maintenance at least at 1/3rd of the income of the husband.
16. Keeping in view of the totality of facts and circumstances, I am of the view that the assessment in the impugned order of interim maintenance of Rs. 24,000/- is on a lower side, the wife is entitled to interim maintenance, pending final adjudication of her application under Section 125 Cr.P.C., at Rs.50,000/- per month.
17. In view of the above findings, I find is no merit in the petition filed by the husband. However, the petition filed by the wife is liable to be allowed and the wife is, accordingly, held entitled to interim maintenance at the rate of Rs.50,000/- per month instead of Rs.24,000/-.
18. This amount of Rs. 50,000/-, as interim maintenance, shall be paid by the husband from the date of the impugned order, i.e., 19.01.2017. This would be in addition to the amount of Rs. 24,000/- directed to be paid by the impugned order from the date of the filing of the interim maintenance application till 19.01.2017. The husband shall clear the arrears of maintenance within a period of 4 months from today.
CRL.REV.P. 146/2017 & CRL.REV.P. 172/2017 Page 9 of 1019. It is clarified that this Court has taken a prima facie view of the documents and the contentions of the parties and the Trial Court would be free to determine maintenance and the period from which it would be payable based on the evidence led by the parties without being influenced by anything stated herein. The amount paid by the husband under orders of this Court would be subject to adjustment, on final adjudication of maintenance by the Trial Court.
20. The petitions are, accordingly, disposed of in the above terms.
21. Order Dasti under signatures of Court Master.
SANJEEV SACHDEVA, J JANUARY 08, 2019 st CRL.REV.P. 146/2017 & CRL.REV.P. 172/2017 Page 10 of 10