Delhi District Court
Mrs Amar Shingal vs Wg Cdr Pradeep Shingal on 29 January, 2007
IN THE COURT OF SH BABU LAL ADDL DISTRICT JUDGE
DELHI
S-343/04
Mrs Amar Shingal Petitioner
Versus
Wg Cdr Pradeep Shingal Respondent
JUDGMENT
1. Petitioner has filed the present petition U/s 18 of the Hindu Adoption and Maintenance Act, 1956 against the respondent. Facts briefly stated in the petition are that petitioner and respondent were married according to Hindu rites and ceremonies at Delhi and out of the said wedlock two children, namely, Priyank Shingal and Arushi Shingal, were born to them on 25.5.1987 and 14.7.1988 respectively. It is alleged that lots of dowry articles and jewelery were given to her by her parents in the marriage and she had also received jewelery from the relatives of the respondent, however, at the insistence of brothers, sister and mother of respondent, respondent had taken all the jewelery of the petitioner on the pretext that he would keep the same safely. Petitioner and respondent are alleged to have taken a bank locker at Subrato Park, Delhi in their joint name. It is alleged that after marriage, petitioner was compelled by the respondent to leave the job, therefore, she resigned from her job. It is alleged that since inception of the marriage, 1 relations between the parties were not cordial inasmuch as family members of the respondent used to taunt the petitioner for bringing insufficient dowry according to their wishes. Petitioner is alleged to have been tolerating all this behaviour, however, on 9.6.1996, respondent had not only beaten her mercilessly but had also turned her out of the matrimonial home. Petitioner was not allegedly even allowed to bring the children with her nor was she permitted to bring any of her belongings. On 10.6.1996, respondent is alleged to have come to Delhi with children by Air and operated the locker at 12.15 a.m. and removed all the jeweleries, share certificates,certificates of the petitioner. Respondent has allegedly filed a false petition U/s 13(1) (i) of the Hindu Marriage Act for divorce where petitioner had also moved an application U/s 24 of the said Act claiming maintenance and litigation expenses wherein she was allowed a sum of Rs 2,000 per month. Petitioner is alleged to have filed revision petition against that order, and amount of Rs 2,000 was enhanced to Rs 4,000 per month by Hon'ble High Court. It is alleged that from 1996 to 2001, petitioner lived in the house of her sister but after 2001, she has taken a house on rent and paying rent of Rs 3000 apart from electricity charges of Rs 2,50 per month, therefore, an amount of Rs 4000 is not sufficient to maintain herself. It is also alleged that her educational and academic certificates as well as all the jewelery had been taken by the respondent for which she has filed a separate suit. It is alleged that she has no source of income and she is not even employed anywhere . It is alleged that her husband is earning Rs 2 40,000 per month, he had also received Rs 1,92,720 as arrears in the year 1997-98 as benefit of 5th Pay Commission, he also owns a house in NOIDA and earning Rs 10,000 as rental therefrom. It is alleged that petitioner being wife of an Air Force Officer/Doctor is also entitled to enjoy the same status. It is alleged that petitioner is entitled to a minimum sum of Rs 10,000 per month but she is claiming only Rs 8,000 as monthly maintenance w.e.f. May, 2001. On these facts, a decree directing respondent to pay a sum of Rs 8,000 per month as maintenance w.e.f May, 2001 apart from Rs 33,000 being litigation expenses has been prayed for. Decree directing respondent to prove accommodation to the respondent at A-52, Jalvayu Vihar, Sector 21, NOIDA has also been prayed for.
2. In the written statement, marriage between the parties has not been disputed. However, allegations regarding demand of dowry by family members of the respondent or by respondent or any taunting by them, beating as alleged by the petitioner have been denied. It has also been denied that she had resigned from her job at the instance of the respondent. It is alleged that soon after the marriage, petitioner created unruly and acrimonious scenes and directed her hostile and atrocious behaviour towards the respondent and his family members in public places and social gathering. It is alleged that respondent was posted from Bangalore to Jorhat in Assam wherein petitioner befriended one Mr S.Gogai who was a police officer and spent much time in his company especially when respondent was out of station. Even petitioner during this period also 3 refused to cohabitwith the respondent and accused him of being inferior to Mr Gogai in respect of power, status and facilities. When the respondent was posted at Delhi, petitioner is alleged to have developed illicit relations with Sqn Ldr Virender Singh who was also residing in the same housing complex. Respondent is alleged to have discovered several letters and cards exchanged between them , therefore, he was constrained to file divorce petition where adulterer has been duly impleaded as a party. Petitioner is alleged to have filed a complaint U/s 498A IPC against the respondent and his mother wherein he was acquired vide order dated 3.2.2000. She has also filed a complaint U/s 406 IPC, proceeding under Guardianship and Wards Act, U/s 125 Cr.P.C., another suit for recovery, has also preferred an appeal against Guardianship Judge's order, a petition U/s 24 of the HMA. It is alleged that at present petitioner is getting Rs 4,000 towards her maintenance. It is alleged that petitioner is well educated and able bodied lady, maintaining a maturi car and cell phone and also wear jewelery on different occasions which show that she has sufficient means to maintain herself. It has been denied that she was driven out of the house. On the other hand, it is alleged that she had come back to Delhi from Bangalore on her own as she has illicit relations with said Virender Singh. Petitioner is alleged to have assaulted the respondent when she visited Bangalore in September, 1996 and that she is violent lady having no control over her anger and temper. It is alleged that respondent is getting gross salary of Rs 37,770 which after statutory and 4 compulsory deductions comes to Rs 22,980 per month out of which he has to meet all the expenses including educational expenses of his two children who are in higher classes. He has admitted that he has a maruti car which was purchased in the year 1993 and Yezdi Motorcycle purchased in the year 1979. However, he has denied that he has any Kinetic Honda in his possession. He has denied that he receives free ration, free medical facilities, CSD Canteen facilities and Railway and Air Concession. It is denied that he is getting Rs 10,000 as rent from NOIDA property. It is alleged that he is getting Rs 5,000 as rent from that property. It is alleged that all the certificates and belongings of the petitioner had been handed over to her and she has even signed the receipt for the same. It is alleged that she is not entitled for the relief claimed. Dismissal of the petition has been prayed for.
3. In the replication, petitioner has reiterated and reaffirmed all the facts as alleged in the petition and denied all the facts as contained in the written statement.
4. On the basis of pleadings of the parties, following issues were framed :-
(1) Whether the petitioner is entitled to maintenance as claimed by her, if so, at what rate and to what amount ? OPP (2) Relief.
5. In order to prove their case, petitioner and respondent have filed their affidavit in evidence and have been cross examined as PW-1 and DW-1.
6. I have heard ld counsels for the parties and have carefully gone through record of the case. My issuewise 5 findings are as under :-
Findings on issue No 1 Issue No 1 is whether the petitioner is entitled to maintenance as claimed by her, if so, at what rate and to what amount ? Onus of this issue was on the petitioner. Petitioner has claimed maintenance @ Rs 8,000 per month w.e.f. May, 2001. On the other hand, case of the respondent is that she is already getting maintenance @ Rs 4,000 per month and has other means to maintain herself, therefore, she is not entitled for any other maintenance.
7. PW-1 Smt Amar Shingal in her affidavit has deposed that she is legally wedded wife of the respondent and out of the said wedlock two children, namely, Priyank Shingal and Arushi Shingal, were born on 25.5.1987 and 14.7.1988. It is deposed that after marriage, petitioner was compelled by the respondent to leave the job, therefore, she resigned from her job. It is deposed that since inception of the marriage, relations between the parties were not cordial inasmuch as family members of the respondent used to taunt upon the petitioner for bringing insufficient dowry according to their wishes. Petitioner is deposed to have been tolerating all this behaviour, however, on 9.6.1996, respondent had not only beaten her mercilessly but had also turned her out of the matrimonial home. It is deposed that petitioner was not even allowed to bring the children with her nor was she permitted to bring any of her belongings. On 10.6.1996, respondent is deposed to have come to Delhi with children by Air and operated the locker at 12.15 a.m. and 6 removed all the jeweleries, share certificates, certificates of the petitioner. Petitioner is deposed to have earlier moved an application U/s 24 of the Hindu Marriage Act claiming maintenance and litigation expenses wherein she was allowed a sum of Rs 2,000 per month. Petitioner is deposed to have filed revision petition against that order, and amount of Rs 2,000 was enhanced to Rs 4,000 per month by Hon'ble High Court. Copies of the orders have been proved as Ex PW1/1 ,Ex PW1/2. It is deposed that she was forced to take a premises on rent in Rohini, copy of the rent agreement has been proved as Ex PW1/3 where she has been paying rent of Rs 3000 per month apart from electricity charges of Rs 250 per month. It is deposed that as on date, she is paying rent of Rs 3,000 per month. She has also proved another rent agreement dated 17.12.03 as Ex PW1/4. She has deposed that at present she is getting Rs 5,500 from the respondent which is not sufficient to maintain herself. It is deposed that she has no source of income and she is not even employed anywhere as her heal this also deteriorating day by day due to inadequacy of food and proper condition of living. It is deposed that her husband owns a house in NOIDA and earning Rs 10,000 as rental therefrom. It is deposed that respondent had not deliberately and intentionally handed over her original educational certificates. It is deposed that petitioner being wife of an Air Force Officer/Doctor is also entitled to stay in the same status. Respondent is deposed to have been earning Rs 40,000 per month. It is deposed that she is entitled to Rs 8,000 as monthly maintenance w.e.f. May, 2001. 7
8. In her cross examination,she has denied that she had applied for any employment anywhere from 1996 till date. However, she has added that her original educational certificates were lying with the respondent. She has also stated that she did not apply for obtaining duplicate certificates from the Competent Authorities. She has admitted that she has a cellular phone. She has denied having any rent receipt for the rent paid by her.
9. DW-1 Sh Pradeep Shingal in his affidavit has deposed marriage between him and petitioner was solemnized according to Hindu rites and ceremonies on 15.7.1986 and out of the wedlock two children were born. It is deposed that soon after her marriage, petitioner created unruly and acrimonious scenes and subjected the respondent and his family members to extreme humiliation and embarrassment. It is deposed that respondent was posted from Bangalore to Jorhat in Assam wherein petitioner befriended one Mr S.Gogai who was a police officer and spent much time in his company especially when respondent was out of station. Even petitioner during this period also refused to cohabit with the respondent and accused him of being inferior to Mr Gogai in respect of power, status and facilities. When the respondent was posted at Delhi, petitioner is deposed to have developed illicit relations with Sqn Ldr Virender Singh who was also residing in the same housing complex. Respondent is deposed to have discovered several letters and cards exchanged between them and when he confronted the petitioner with her relationship with Sq Ldr Virender Singh, petitioner left the matrimonial home at Bangalore on 9.6.1996, therefore, on 8 account of acts of mental and physical cruelty and adultery perpetrated by the petitioner, he was constrained to file divorce petition where adulterer has been duly impleaded as a party. Petitioner is deposed to have initiated several proceedings against him in an attempt to force and coerce him to submit to her unreasonable demands. He has deposed that he has been regularly paying maintenance to the petitioner as she had earlier moved an application for interim maintenance before Air Force Authorities and was duly granted a sum of Rs 1,500 per month from his salary since July, 1996. It is deposed that petitioner has been receiving Rs 4,000 towards maintenance per month in terms of of order of Hon'ble High Court dated 11.11.1999 which stood enhanced by Rs 1,500 vide order dated 2.6.04. He has deposed that he has paid all arrears in terms of order of Hon'ble High Court and he is currently paying Rs 5,500 per month to the petitioner as maintenance. Copies of the demand drafts in favour of petitioner along with postal receipts have been collectively proved as RW1/1. He has also deposed that she has been receiving additional amount in terms of various orders passed in FAO 740 of 2002 as expenses for her visit to Bangalore. Certifies copies of the said orders have been proved as RW1/2. He has deposed that he is drawing gross salary of Rs 37,770 per month which after statutory and compulsory deductions comes to Rs 22,890. Salary slip has been proved as Ex RW1/3. He has also proved various other documents as Ex RW1/4 to RW1/8. Petitioner is deposed to have pawned her jewelery and a receipt in this regard has been proved as Ex 9 RW1/9.
10. In his additional affidavit, he has proved another salary slip as Ex DW1/1, DW1/2. He has also proved various documents showing the expenses incurred by the respondent as Ex DW1/3 to DW1/30.
11. In his cross examination, he has stated that his gross salary as on date is Rs 50,000. He has also stated that Jalvayu Vihar flat was lying vacant for the last 20 months and it has just been rented out w.e.f. 20th September, 2006 at a rental of Rs 9,500. He has shown his ignorance if the petitioner is paying rent of Rs 3,000 and electricity charges of Rs 250 per month. He has admitted that petitioner is his wife.
12. It has been argued on behalf of petitioner that there is no dispute between the parties that petitioner is the wife and the respondent is her husband and they are lawfully married, therefore, the controversy between the parties is quite narrow. It is argued that the petitioner was driven out of matrimonial house by the respondent when they had been living at Bangalore and since then the petitioner has been living separately. It is argued that being the wife of the respondent, she has right to claim maintenance which should be such that the petitioner should also enjoy the same status as the respondent. According to ld counsel for the petitioner the maintenance includes food,clothing , shelter as also reasonable expenses for medical treatment. It is argued that petitioner has been paying Rs 3300 as rent apart from Rs 250 towards electricity charges whereas she has been getting interim maintenance @ Rs 5500 per month as per order of the 10 matrimonial Court U/s 24 of the Hindu Marriage Act which is insufficient for her maintenance. It is further argued that she has claimed maintenance @ Rs 8,000 per month. According to ld counsel for the petitioner the petitioner is qualified nurse but she has not got the job despite best efforts and secondly all the testimonials of the petitioner have been withheld by the respondent. It is prayed that petitioner be held entitled to recover maintenance @ Rs 8000 per month w.e.f May 2001 onwards.
13. On the other hand, ld counsel for the respondent has argued that petitioner has not produced any evidence except her own oral evidence to prove her case and that documents Ex PW1/1 to PW1/4 being photocopies are inadmissible in evidence. It is argued that it was the petitioner who had left the house at her own, therefore,she is not entitled for maintenance when she herself had deserted the respondent. It is further argued that no rent receipt has been filed by the petitioner to prove that she has been paying rent. It is also argued that she is a qualified nurse and she is in a position to get good job in a reputed hospital. It is also argued that all the original certifies of the petitioner have been returned to her and in case she is not in possession thereof, even she could get duplicate thereof. It is argued that petitioner is a beautician also and has potential to earn substantial amount but she has not given any reason for not engaging herself in any work. It is further argued that no evidence has been led that petitioner is suffering from any ailment. According, to ld counsel for the respondent the 11 petitioner has filed as many as 5 cases and she has been paying handsome amount for the lawyers engaged by her. According to ld counsel for the respondent, respondent has been getting Rs 30,000 per month as salary and has to support his two children who have been studying. It is also argued that respondent has been getting Rs 9,000 as rent of his house which he he has rented to a tenant,therefore, after spending on education of his children and maintaining his mother, hardly any amount remains with him. It is further argued that a father is bound to arrange for marriage expenses of his daughter, therefore, respondent has to make some monthly saving to meet the expenses of his daughter, therefore, he does not have sufficient means to pay any maintenance to the petitioner.
14. Coming to the present case, factum of marriage between the parties has not been disputed, therefore, there is no dispute that petitioner is the wife and the respondent is the husband. According to the petitioner on 9.6.96 she was mercilessly beaten by the respondent when she was staying with him at Bangalore, therefore on 11.6.96 he returned back to Delhi at 2.00 p.m. but in the meantime, respondent had also returned back to Delhi along with children and operated the locker. Since then, she has been residing at Delhi. On the other hand, respondent has alleged that she was living in adultery and had developed friendly relationships firstly with Mr S Gogai, a police officer, when he was posted at Jorhat in Assam and thereafter developed adulterous relations with Sq Ldr Virender Singh when he had been living at Bangalore. Matrimonial 12 dispute between the parties exists and the respondent has filed a divorce petition against the petitioner in matrimonial court on the ground of adultery. This fact has not been disputed. Only oral evidence has been led by the parties. When the divorce petition filed by respondent is pending and where the court has been called upon to decide question of adultery allegedly committed by the petitioner, this issue should be decided by the matrimonial court only. However, in the present case, it has been brought on record that the petitioner left the matrimonial house at Bangalore and came to Delhi because she was ill- treated. In para No 16 of the affidavit filed by the respondent that he has only stated that petitioner had abandoned the matrimonial house and children. Why she had left the matrimonial house has not been specified by him, therefore, the testimony of the petitioner that she was ill treated at Bangalore, and so she had left the matrimonial house stands substantiated. I, therefore, come to the conclusion that when ill treated wife leave the matrimonial house, she has right to live separately from her husband and is entitled to claim separate residence and maintenance.
15. Case of the respondent is that she had developed friendly relations with Mr. Gogai and was living in adultery with Sq Ldr Virender Singh at Bangalore. No cogent evidence has been placed on record from which it could be inferred that these allegations have been substantiated. However, this issue is left open because divorce petition between the parties on the ground of adultery is still pending in matrimonial court and that forum is 13 best forum to decide this issue. In my considered opinion, therefore, petitioner is entitled to claim maintenance on the ground that she has been ill treated by the respondent. Even otherwise, the court had explored the possibility of compromise between the parties, however, the respondent showed his disinclination. Therefore, in these circumstances, I am of the view that petitioner is entitled for maintenance.
16. The second question arises as to what should be quantum of maintenance which should be awarded to the petitioner? The petitioner has claimed maintenance @ Rs 8,000 per month. She has proved on record the rent agreement Ex PW1/4 in respect of flat bearing No 4B( Duplex) third and fourth floor, Tarun Vihar, Rohini. According to this document, rent has been fixed at Rs 3000 per month. Ld counsel for the respondent has submitted that no rent receipt has been produced on record by the petitioner . It is true that rent receipt has not been produced but there is nothing on record from which it could be inferred that Ex PW1/4 is fabricated document. Ex.PW1/1 is the carbon copy, but Ex.PW1/4 is the original. Since the original has been placed on record, it cannot be discarded. It is dated 15.12.03. Therefore, at least w.e.f 15.12.03 the petitioner has been living in rented accommodation stands proved. I, therefore, come to the conclusion that petitioner has been paying rent @ Rs 3,000 per month plus Rs.250/- as electricity charges w.e.f. 15.12.03.
17. Ld counsel for the respondent has been argued that petitioner has been residing in the house owned by her sister and 14 is not paying any rent. In the face of evidence produced by the petitioner and in the absence of any evidence from the side of respondent to the contrary, it can not be said that version of the petitioner that she has been living in a rented accommodation is baseless.
18. Coming to the evidence on record produced by the respondent, I find that documents Ex.DW1/1 to DW1/30 go to prove respondent has been getting gross salary of Rs 37770. In his cross examination, he has admitted that his gross salary as ( as on 6.10.06 when his cross examination was recorded ) was Rs 50,000 plus he was earning rental of Rs 9500 from his house in Jalvayu Vihar. He has also placed on record. Document Ex DW1/6 to DW 1/10 showing various amounts paid by him on the coaching of his children. Document Ex PW1/10 only shows that Mr Priyank Shingal has been taking tuition from a Coaching Centre. Ex DW1/11 to Ex DW1/28 shows amount spent on traveling of the two children by the respondent. Ex DW1/29 is the receipt regarding payment of electricity and water charges. Ex DW1/30 is the receipt regarding payment of club and mess charges by the respondent. Latest pay slip has also been placed on record but it has not been exhibited which shows that respondent has been getting Rs 33,420 as net salary after various deductions from his salary. It is, therefore, clear that as on now respondent has been getting net salary of Rs 33,420 plus 9,500, therefore, respondent is earning Rs 42,970 per month. In my considered opinion even taking into consideration the amount spent by the respondent on the education of his children, 15 it can not be said that out of more than Rs 42,000 which is his monthly income, he is incapable of sparing some money for the maintenance of his wife. It is admitted case of the parties, interim maintenance was granted @ Rs 1500 per month but subsequently it has been increased to Rs 5500.
19. Ld counsel for the respondent has laid emphasis on the point that apart from spending money on education of the children, respondent has to save something for the marriage of his daughter who is of marriageable age . But in my considered opinion, maintenance of the children is legal obligation of the person so also the maintenance of the wife is also a legal obligation which one has to discharge. It is another matter while granting maintenance the facts towards which counsel for respondent has drawn my attention might be taken into consideration.
20. Ld counsel for the respondent has argued that while granting maintenance the court has to keep in mind the potential of the petitioner to earn livelihood in mind and since the petitioner is a qualified nurse, she is capable of maintaining herself.
21. On the other hand , ld counsel for the petitioner has argued that first of all, all the testimonials of the petitioner are in possession of the respondent because of which she could not apply for any job. Even in her cross examination, petitioner has stated that she could not apply for employment anywhere since 1996 till date because her education certificates are lying with respondent. However, she has admitted Ex PW1/D-1 has been 16 signed by her and articles mentioned therein were received by her. If it is so, then first of all certificates have been received by the petitioner. Even otherwise, the petitioner could have procured duplicate certificates by applying to the competent authority. It shows that she did not make any effort to search out any job. She has admitted that she is a qualified nurse and had been working as such in the Army before her marriage but after marriage, she left the employment. She has also admitted that she had undergone a course of beautician. Both these professions are technical in nature and paying. It is not difficult for any person holding such qualification to search out a job or get employment or earn livelihood. I, therefore, come to the conclusion that though petitioner is capable of earning handsome amount but she has not made any efforts to search job or engage in any work.
22. Ld counsel for the petitioner has relied upon Annurita Vohra vs Sandeep Vohra 2004 III AD ( Delhi) 253. In this authority, it was held that while exercising jurisdiction to grant maintenance the court has to give consideration to the status of the parties, their respective needs, the capacity of husband to pay and his obligations. It was also held that maintenance should be fixed in such a manner that the wife could live in with reasonable comfort considering her status and mode of life. Ld counsel for petitioner has further relied upon authority reported as S.S. Bindra vs Trivendra Kaur,II ( 2004) DMC 297 relying upon Vohra's case ( Supra), it was held that taking into account compulsory deductions of the salary, remaining amount should 17 be divided with one extra share to be allotted to the earning spouse surely since extra expenses would necessarily be incurred. In Vohra's case husband was drawing salary of Rs 32,000 per month, therefore, monthly maintenance of Rs 15,000 per month was held to be justified. Ld counsel for petitioner has further relied upon Rekha Deepak Malhotra vs Deepak Jagmohan Malhotra, II ( 1999) DMC 453, Anubha vs Vikas Aggarwal 2002 ( 65) DRJ 536 . Ld counsel for petitioner has also relied upon Jasbir Kaur Sehgal vs District Judge, Dehradun 1997 VII AD SC 461. In this authority, it was held that court has to consider the status of the parties, their respective needs, capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and those he is obliged under the law and statutory obligations, it was held that maintenance fixed for wife should be such as she could live with reasonable comfort and mode of life she was accustomed to while living with her husband.
23. Ld counsel for the respondent has relied upon authorities reported as Moran Mar Basselios Catholicos & Anr vs Most Rev.mar Poulose Athanasius & Ors, AIR 1954 SC 526, M/s Roy and Co and Anr vs Smt Nani Bala Dey & Ors, AIR 1954 SC 526, Hajarkhan Kalubava & Anr vs Kesarkhan Kayamkhan and others, AIR 1968 Guj 229, A.Raghavamma & Anr vs A.Chenchamma & Anr, AIR 1964 SC 136, Shiv Charan Singh vs Chandra Bhan Singh & Ors, ( 1988) 2 SCC 2, Ram Chandra Sahu & Ors vs Madhab Nayek and others, AIR 1953 Cal. 484, Bengal Coal Company Ltd vs Prosanna Kumar 18 Bhattacharjee & Ors, AIR 1932 Cal. 39, A.E.G. Carapiet vs A.Y.Derderian, AIR 1961 Cal. 359, M/s Chuni Lal Dwarka nath vs Hartford Fire Insurance Co Ltd & Anr,AIR 1958 Punj. 440, Babulall Choukhani vs Caltex ( India) Ltd , AIR 1967 Cal. 205 and Ganesh jadav & Ors vs State of Assam, AIR 1995 Crl. L.J. 3748 to press his contention that petitioner has failed to discharge the onus of the issue. However in Ramji Davawala & Sons (P) Ltd vs Invest Import, AIR 1985 SC 2085 and Babban vs Shiv Nath AIR 1986 All. 185, it has been held that where both the parties have led evidence, the burden of proof wold assume secondary importance and question of onus of proof pales into insignificance. Therefore, authorities relied upon by ld counsel for the respondent are of no help to him.
24. Ld counsel for respondent has further relied upon Smt Jasbir Kaur Sehgal vs District Judge, Dehradun ( Supra), Kiran Bala Saha vs Bankim Chandra Sahaj, AIR 1967 Cal. 603 and Merubhai Mandanbhai Odedara and Anrs vs Baniben Merubhai Odedara, AIR 2000 Gujarat 277 on the point of quantum of maintenance.
25. However, as already pointed out question regarding quantum of maintenance has been subject matter of Jabir Kaur Sehgal ( Supra) which has been consistently followed by our own High Court in Annurita Vohra and S.S. Bindra ( Supra) have already been discussed. These authorities lay down the principles on which quantum of maintenance has to be calculated by the court and facts which are required to be taken into consideration. In my considered opinion the amount of Rs 19 8,000 claimed by the petitioner can not be said to be unreasonable inasmuch as to his own admission, the respondent has been drawing net salary of Rs 33420 plus rental income of Rs 9550 and in all he earns Rs 42970. Even if all the deductions made from his salary are considered to be just and reasonable, still he has income Rs 42970 per month. If it is divided equally amongst the petitioner, respondent and their two children apart from giving an additional share to the respondent still the share of the petitioner exceeds Rs 8,000. in my considered opinion, therefore, quantum of present maintenance @ Rs 8,000 as claimed by the petitioner seems to be reasonable. However, in September, 2003 respondent had been getting salary of Rs 21579 plus rental income of Rs.5,000/-. Present petition was filed in May, 2003. In these circumstances, I am of the view that keeping in view the fact that petitioner has potential to earn her livelihood, ends of justice would be met if the respondent is directed to pay maintenance to the petitioner @ Rs 5500 from May 2001 till April 2003 and from May 2003 onwards @ Rs.8,000 per month. Any amount paid by the respondent U/s 24 of the Hindu Marriage Act or as maintenance against any order passed by any court, same shall be adjusted in the amount of maintenance awarded to the petitioner. Petitioner has claimed Rs.33,000/- as litigation expenses. However, there is no provision in the Hindu Adoptation and Maintenance Act analogous to section 24 of Hindu Marriage Act under which litigation expenses can be awarded to her. However, she can be awarded the cost of the suit. This issue is accordingly decided in 20 favour of petitioner and against the respondent.
26. Relief:- In view of my findings on issue No 1, I pass a decree in favour of petitioner and against the respondent directing him to pay maintenance to the petitioner @ Rs 5500 per month from May 2001 till April 2003 and from May 2003 onwards @ Rs 8,000 per month. Any amount paid by the respondent U/s 24 of the Hindu Marriage Act or as maintenance against any order passed by any court, same shall be adjusted in the amount of maintenance awarded to the petitioner. In the facts and circumstances of the case, petitioner is also awarded cost of the suit. Decree sheet be accordingly prepared. File be consigned to record room.
Announced on the Open Court
on 29.01.07 (BABU LAL)
ADDL. DISTRICT JDUGE
DELHI
21