Delhi District Court
Vide This Common Order I Shall Decide The ... vs Ds) With on 29 January, 2008
1 O P Sharma V. Kusum Sharma- 12/06 29.1.2008 ORDER:
1. Vide this common order I shall decide the application U/s. 114 read with U/o. 47 R 1 CPC and U/s. 151 CPC for review of order dated 7.5.2007 filed on 2.6.07 on behalf of petitioner and also an application U/s. 114 read with U/o. 47 R 1 CPC and U/s. 151 CPC for review of order dated 7.5.2007 filed on 1.6.07 on behalf of respondent.
2. The relevant facts leading to the present application are that the petition for dissolution of marriage was filed by the petitioner/husband who is a designated senior advocate at 2 Supreme Court of India against respondent/wife on 9.9.2005. The petition was contested and vide order dated 10.7.06 issues were framed and the matter was listed for petitioner's evidence. Petitioner filed his evidence by way of affidavit on 13.9.06. Thereafter, respondent filed the application U/s. 24 HMA on 22.9.06 and the petitioner filed the reply to the said application on 2.11.06 and he simultaneously moved an application U/s. 24 HMA on his behalf. Reply to the said application was filed by respondent on 15.11.06. Rejoinder on behalf of respondent to the reply by petitioner to the application U/s. 24 HMA was also filed on 15.11.06. On the same day an application U/s. 151 CPC regarding misconduct of counsel of respondent was also filed. Thereafter, on 27.11.06 an application U/o. 11 R 1 CPC read with section 151 CPC was filed by petitioner seeking 3 explanations from respondent through the interrogatories. On 4.1.07 it was stated on behalf of petitioner that the reply to the interrogatories has not been filed but counsel for respondent submitted that the application U/s. 24 HMA is to be decided first. It was opined that before proceedings with the matter firstly the application U/s. 24 HMA filed by both the parties shall be decided alongwith application U/s. 151 CPC. Vide order dated 7.5.07 application U/s. 24 HMA moved by respondent on 22.9.06; the application U/s. 24 HMA moved by petitioner on 2.11.06 and application U/s. 151 CPC also moved by petitioner on 15.11.06 was disposed off and the case was listed for reply to the interrogatories.
3. It was directed vide order dated 7.5.2007 that the respondent be paid Rs. 50,000/- per month as maintenance from 4 the date of application till disposal of the petition and litigation expenses of Rs. 22,000/-. She was also entitled to get medical expenses incurred by her and future medical expenses on the basis of actual expenditure on production of receipt of payment bill. The application U/s. 24 HMA and U/s. 151 CPC moved on behalf of petitioner was dismissed, hence the present review application on behalf of petitioner.
4. ON the other hand respondent sought review of the order stating that the petitioner has falsely stated regarding her rental income of Rs. 50,000/- per month from the flat at Cannought Place.
5. Firstly I shall take up the review application of the petitioner. It is stated that there are error on the face of record and very important material which had escaped the notice of the 5 court has resulted in mis-carriage of justice to him. It is stated that the main issue is that whether in the peculiar fact and circumstances of the case, an application U/s. 24 HMA is maintainable; whether respondent had gravely misused the provisions of section 24 HMA by concealing the material facts and stating wrong and incorrect facts. It is stated that the instant case is not an ordinary case where the wife has come U/s. 24 HMA on ground that she has no independent income, sufficient for her support and necessary expenses. The instant case is a rarest of rare case where the wife has already extracted maximum from husband by bullying tactics and conspired methods and had left him high and dry in the state of penury. It is also stated that the very important document proving the admission made by respondent regarding the value of the self acquired property of 6 petitioner to be 1.5 Crore has escaped the notice of the court. It is stated that the said admission was made by the respondent in suit no 202/03 filed by her in the court of Ms. Poonam Choudhary, Civil Judge, Delhi titled as Smt. Kusum Sharma and Ors V. OBC and Ors and the documents such as the Status Report filed by the SHO- Mukherjee Nagar in compliance of the order of Hon'ble High Court in Crl.W.P. No 622/03 wherein it is mentioned that the petitioner/husband had offered a sum of Rs. 25 lacs to respondent but she asked for Rs. 40 lacs. Therefore, from the above record it is evident that the said property bearing no 175 Tagore Park, Delhi was worth Rs. 1.5 Crore and the half of the sale consideration of the same was received by respondent which share was handed over to respondent in presence of her counsel Sh. Khatri who was her counsel in the petition before the 7 Hon'ble High Court and is the counsel in the present proceeding as well. It is further stated that the respondent much prior to the proceeding U/s. 24 HMA was secured financially by getting 50% share of the total sale consideration of the self acquired choice and spacious property of petitioner at 175, Tagore Park, Model Town, Delhi as well as by uprooting petitioner from his well established office since 1969 at Cannought Place. It is stated that he had brought on record the financial sufficiency of respondent; poor health of himself coupled with fact that he had given whatever he had to respondent under legally executed MOU. It is stated that the respondent without placing any material on record has been orally denying the same without proving her inability to maintain herself inspite of her taking 50% share of the total sale consideration of self acquired property of petitioner 8 and taking in possession of the commercial space at Cannought Place. It also has come on record that the respondent by way of registered Will of her father had bequeathed flat No 4, New Khanna Market, Lodhi Colony, New Delhi. It is further stated that the respondent U/s. 24 HMA had taken away everything including jewellery, cash and office of petitioner with clear intention not to live with him. She had extorted huge amount from her husband in lieu of living with him therefore, there cannot arise any question of promising to live with her husband. It also escaped the notice of court that he had exhausted all ways to keep her with him by writing letters to police through Sh. K T S Tulsi who was the mediator in the matter who had made several efforts through his and her relatives but she did not agree and wanted only money. It is also stated that all the fact is within 9 the personal knowledge of the counsel for the respondent that she had taken half of the sale consideration of the only house of petitioner at 175, Tagore Park, near Model Town, Delhi and the premises flat No 14, Shankar Market, Cannought Place as full and final settlement of the claim made by her. It is also stated that she had taken a very huge amount of money by way of permanent alimony which was her own sweet choice then living with petitioner. Besides this she also got the flat no 4, New Khanna Market, Lodhi Colony as per the Will of her father. It is stated that the counsel for respondent Sh. S S Khatri and Sh. D V Khatri were acting beyond the confines of professional conduct governed by legal ethics just to lend wright to a trumped-up story of respondent. It is stated that there was active involvement of these counsels from the beginning till the handing 10 over the keys of flat no 14, Shankar Market, Connought Place. It is stated that Sh. D V Khatri had witnessed the document at time of handing over 50% share to respondent and handing over the keys of office No F-14, Shankar Market, Cannought Place and so much so that even the amount of the sale deed for respondent was counted by Sh. Khatri. It is also stated that the operative part of the order is ambiguous and requires clarification as well as substitution to prevent miscarriage of justice even the observation that respondent had spent Rs. 1,60,910/- and also granting her Rs. 3,24,910/- for future medical expenses for the year 2007 which is contradictory to the material on record. It is stated that the expenses incurred by her was Rs. 98,000/- which is supported by document and the amount of Rs. 1,60,910/- and Rs. 3,24,910/- are only imaginary figures. It is stated that it 11 seems that the court had added up entire medical bills submitted which included the bills of pharmacy, investigations, hospital admission and also the amount refunded to respondent. The details of the same is also given therefore, it is stated that the same also has to be corrected. It is further stated that the petitioner is a old aged about 76 years. He is suffering from coronary artery disease with hypertension and is insulin dependent diabetic mellitus. It is stated that due to life threatening ailments he require regular medical attention and is under the treatment of Cardio Diabetologist under heavy medical cover. He is spending about Rs. 7000 - 10000/- per month for his medicines. It is also stated that the petitioner of late started getting Transient Ischemic Attacks during which he is frequently having repeated black outs especially in his office when he is 12 professionally occupied. Copy of the certificate issued by the doctor under whom he is taking treatment is annexed as PA1 alongwith this application which could not be produced earlier as the same was made available now. It is further stated that in para 26 of the order it has been observed that the Ld. Counsel for the respondent has taken us through the settlement wherein as per the MOU the first party i.e. the petitioner herein was to pay half of the sale consideration of house No 175 Tagore Park, Delhi to the second party i.e. the respondent herein and respondent shall clear all the liability standing against Anish Sharma i.e. fifth party out of the amount of the sale consideration. Mrs. Sharma i.e. the respondent had issued the receipt in favour of petitioner of Rs. 10,50,000/- as her half share in the sale consideration. Admittedly, the liability of the Anish Sharma was more than the 13 same therefore, it would not leave anything with her. It is stated that it has escaped the notice of the court that though respondent was duty bound as per the MOU but the respondent failed to fulfill the commitment therefore, petitioner had to clear the liability and the details of the payment made by him was also brought on record whereas respondent could not produce any document regarding discharge of her liability. It is stated that she has in her possession half share of the sale proceed of the house of the petitioner which is kept in her bank account; the flat no 14 at Shankar Market, Cannought Place which can be put to any lucrative source of earning; the flat no 4, New Khanna Market, Lodhi Colony, Delhi which can also be a source of lucrative earning and jewellery worth lacs of rupees. All these should dis- entitle respondent from claiming maintenance. While petitioner 14 on the other hand only got half share of the sale proceeds of the property no 175 Tagore Park from which he had to pay the liability of his younger son Anish Sharma of Rs. 43 lacs. It is further stated that there is serious error in assessing the status of the petitioner. The income of the petitioner is disputed to the extent that respondent has taken away all the money and the petitioner is left with nothing. Brief facts leading to the application are also mentioned.
6. Reply to the review application filed on behalf of petitioner has not been filed by respondent despite opportunity granted and it was stated by the counsel for the respondent that the respondent is ill therefore, she could not come to sign the reply and the application for review was therefore heard.
7. Counsel for the petitioner who also happens to be the son 15 of parties addressed the arguments. Written synopsis of arguments was also filed.
8. I have heard counsels for the parties and have also gone through the record.
9. Firstly I shall taking the last ground regarding the medical expenses to be paid to the respondent. There does not appear to be any error on that aspect as in para 29 it is mentioned that as per the applicant/wife, she had spent a sum of Rs. 1,60,910/- in the year 2007 and the future expenses for the year 2007 was Rs. 3,24,910/-. However, in the operative para it is categorically mentioned that she is entitled to get the medical expenses incurred by her and future medical expenses on the basis of actual expenditure on the production of receipt of payment bill meaning thereby that the prescription slip and the amount 16 whatever spent by them shall be paid only on the production of payment bill. Therefore, there is no doubt in this regard and it is made clear that the respondent would be entitled to get the medical expenses on the basis of actual expenditure incurred by her.
10. Now coming to the other aspects. It is argued by counsel on behalf of petitioner that an application U/o. 11 R 2 CPC was filed on 27.11.06 regarding discovery by interrogation in respect of application U/s. 24 HMA of respondent and as per Order 9 Rule 2 CPC the application is to be decided within seven days of its filing. It is stated that despite repeated request to call reply to the said interrogatories, the same was not called when it specifically relates to section 24 HMA. It is further stated that section 21 HMA specifically lays down that the proceedings 17 under HMA shall be regulated by the CPC.
11. He relied upon Ganga Devi V. Krishna Prasad Sharma 1964 ILR Cuttack- 958 wherein it was held that the Order 11 CPC is applicable to the interlocutory proceedings U/s. 24 HMA. He also cited Ram Lal Sao V. Tan Singh Lal Singh AIR 1952 Nagpur- 135 a judgment of Nagpur High Court. In this case it was held that it is the right of the party to deliver interrogatories to his opponent and get answers from him is a valuable one in conducting his cause and he should not be lightly be deprived of it. It was observed that it should be remembered that the discovery of facts and documents often tends to shorten litigation and save expenses. He also cited Jamaitrai Bishansarup V. Rai Bahadur Motilal Chamaria AIR 1960 Calcutta- 536 where it was held that the interrogatories must be confined to the issue 18 and sufficient material at the particular stage of action at which they are sought to be delivered. He also cited Baij Nath Kedia V. Raghu Nath Prasad 1913 ILR (Vol. XLI) Calcutta- 6 wherein the Hon'ble Court examined the interrogatories and allowed relevant one and disallowed the other one.
12. Counsel for petitioner/applicant submitted that the court has committed grave error by not directing the respondent to file the reply to the interrogatories withing the prescribed time and stated that the interrogatories at serial no. f, g, h, l, k, l, m, o, p, q, r, t, u, v, w, x and y are directly related to the application filed by respondent U/s. 24 HMA.
13. On the other hand counsel for respondent submits that the issue regarding the interrogatories has become final between the parties as the court vide order dated 4.1.2007 opined that the 19 application for interrogation would be taken up after disposal of application U/s. 24 HMA and once it has become final and has not been challenged by the respondent, it cannot be reopened now.
14. Order 11 CPC provides that any party with leave of the court may deliver interrogatories for the examination of other party. It also provides that the interrogatories if does not relates to the question in suit would be irrelevant. On the application for leave to deliver, the court shall decide within seven days from the filing of the said application.
15. It is not out of place to mention that it is wrongly stated in the application that the reply to the said interrogatory application has not been asked for. The reply of the same was asked to be filed when the same was moved and thereafter, after disposing 20 off the application U/s. 24 HMA the case was again listed for reply to the interrogatories. I have perused the interrogatory application. The same admittedly, was moved after filing of the evidence by way of affidavit of petitioner. It reads as follows:
"the main petition filed by the petitioner consists of all justifiable grounds to allow the petition as the relevant documents and evidence by way of affidavit is duly filed before this Hon'ble Court yet in addition to the same but since the cruelty committed by the respondent in perpetuity mentions extorting/extracting money to the extent of creating situations forcing the petitioner to sell the only self earned house of the petitioner in order to usurp 50% of the sale proceedings towards compromise for all things from petitioner, by the respondent in collusion and connivance with respondent's son Anish Sharma and his wife 21 Satnam Sharma, the answers/explanations of the interrogatories are legally required." Thereby meaning, these interrogatories were filed as an aid to the evidence of the petition on the ground of cruelty. It is not disputed that all the interrogatories filed are not confined to the application U/s. 24 HMA even if it is stated that they are related. In the interrogatories at serial no (g) it is stated whether incorporation of clauses in compromise in High Court of Delhi in WP (Crl) to withdraw the complaint filed by Satnam Sharma in Women Cell, Nanakpura imposing responsibility of case U/s. 138 Negotiable Instruments Act of dishonour of cheque of Rs. 3 lacs against Anish Sharma filed by Sh Paramjit r/o. Sirsa upon the petitioner by respondent were not acts of collusion and connivance and dividing the joint family of the petitioner to inflict financial, mental agony and cruelty upon 22 petitioner and an act of preparatory to force selling of petitioner's only home in order to extract of heavy amount whilst the Crl WP filed by the respondent was for prosecuting the petitioner Vivek Shama, Nanita Sharma and Mr. R C Gubrella?
16. Apparently this interrogatory is not a interrogatory by nature, but appears to be allegations which is not defined. Be that as it may, I am of the opinion that the review on the ground of declining to ask the respondent at this stage to file the reply to the interrogatory would amount to review of the order which has become final between the parties and has now become beyond the period of limitation and the same cannot be reviewed.
17. Ld. Counsel for petitioner further argued that the respondent had withheld vital documents from the court which are the memorandum of understanding dated 29.3.04 whereby 23 she had taken 50% share of the total sale consideration and also took the possession of the commercial space at Cannought Place worth Rs. 75 lacs where petitioner alongwith his elder son were having the office. She also took away entire jewellery worth Rs. 25 lacs which form part of Hon'ble High Court record. She also took the Santro car alongwith five Air Conditioners which were purchased by petitioner. It is also submitted that the respondent had admitted the market value of house as 1.5 Crore in suit before the court of Ms. Poonam Choudhary, Civil Judge. He relied upon S Waryam Singh Dugal V. Smt. Savtri Devi AIR 1984 NOC- 188 (Delhi) wherein it was held that U/s. 58 of the Indian Evidence Act admission in the pleading has evidentiary value in the subsequent litigation. But it is not binding in the sense of dispensing with proof in a subsequent case. It does not 24 mean that it has lost all evidential value and can be still used as a piece of evidence in subsequent proceedings. He also cited Raman Pillai Krishna Pillaii & Ors V. Kumaran Parameswaran & Ors AIR 2002 Kerala- 133 where it was held that the admission made by the predecessor-in-interest of plaintiffs in written statement in earlier judicial proceedings would be admissible U/s. 58 of the Indian Evidence Act.
18. He also submitted that the other vital documents which were withheld were the report submitted by SHO- Mukerjee Nagar in compliance of the directions of Hon'ble High Court in petition no 622/03; the Agreement to sell dated 9.10.02 filed by respondent in Hon'ble High Court showing the value of the house to be 1.32 Crore; Non-disclosure of receipt of draft of Rs. 10.5 lacs from petitioner at time of signing MOU and cash which was 25 counted by the counsel for the respondent. She also had withheld the declaration dated 16.6.04, sale deed dated 16.6.04 and the affidavit dated 16.6.04 of respondent showing that the above mentioned property was the self acquired property of petitioner; the compromise application jointly filed by petitioner and respondent showing that all the disputes between them was settled and there is no claim of any nature against each other. It is further submitted that the above documents prove that the respondent had willingly separated from the petitioner and secured herself financial by way of permanent alimony and relied upon S P Chengalvaraya Naidu (dead) by LRs V. Jagan Nath (dead) by LRs & Ors AIR 1994 SC- 853 where it was held that the courts of law are meant for imparting justice between the parties who comes to the court must come with clean hands. It 26 can be said without hesitation that a person whose case is based on falsehood has no right to approach the court. He can be summarily thrown out at any stage of litigation.
19. Now the question arise whether there is any concealment on part of respondent by withholding the documents?
20. The application U/s. 24 HMA on behalf of respondent was filed on 22.9.06. It is true that the respondent in her application has not disclosed her assets. However, the copy of MOU was already on the record which was filed on 28.7.06, therefore, it cannot be said that there is non-disclosure on part of respondent as she had no occasion to do so as it was already forming part of record.
21. Now coming to the status report and the admission of respondent in the proceedings filed by her, whether it amounts to 27 admission?
22. The status report was filed by SHO- Sh. H S P Singh police station- Dr. Mukherjee Nagar before Hon'ble High Court wherein he mentioned that on 21.4.03 petitioners met for a family settlement, according to which O P Sharma agreed to give a sum of Rs. 25 lacs to his wife plus the property flat no 14, Shankar Market, New Delhi. However, the petitioner subsequently stated that she wants Rs. 40 lacs instead of Rs. 25 lacs. Copy of the settlement was also filed which was signed by the petitioner meaning thereby that the petitioner in this case was offering Rs. 25 lacs plus property at Shankar Market but respondent asked for Rs. 40 lacs. This status report was prepared by the SHO and it cannot be said that it is the admission on behalf of respondent in any manner.
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23. It is also argued that the respondent in the suit filed before Ms. Poonam Choudhary, Civil Judge claiming injunction against Bank had stated the value of the property as Rs. 1.50 Crore. Copy of the order of the said court dated 19.8.03 is also filed wherein it is alleged by the respondent that the documents were executed by the petitioner in favour of his junior advocate Sh. R C Gubrele in respect of the said property for a total consideration of Rs. 16 lacs whereas the market value of the said property is about Rs. 1.50 Crore. It is further claimed that she came to know that one Rajiv Jain also had entered into agreement to purchase the said property for Rs. 1.32 Crore.
24. Now the question arise whether the pleading of respondent claiming the value of the property as Rs. 1.50 Crore would amount to admission on part of respondent? It was the 29 assessment of the respondent that the value of the property is Rs. 1.50 Crore but what would be the actual value of the property can only be told by the parties who had ultimately entered into the agreement. Surprisingly, the petitioner has nowhere stated that what was the actual transaction entered into. He has stated at various place that respondent had taken 50% of the total sale consideration and as per the record it was Rs. 10.5 lacs. Therefore, it could be 20 lacs, 30 lacs or One Crore but it should come from the mouth of the petitioner himself. It cannot be expected that the petitioner conceal some information from the court and expects other party to reveal everything. Merely, by stating in a suit that the property is worth this much cannot be said that the property would in fact be worth this much. Although, it is true that the actual value entered into in the 30 documents are always much less than the market value. But at the same time the court cannot go into such inquiries unless that is the issue before the court. I do not find any concealment on part of respondent by withholding document in any manner.
25. As regards the non-disclosure of the property a Shankar Market is concerned, the respondent has not disclosed the same in her application, however, it cannot suffice to throw out her case on this ground alone as the petitioner is himself guilty of withholding vital information from the court regarding the actual sale consideration of the property.
26. It is further stated that it is the petitioner who had to pay off the debts of their son and not the respondent. Petitioner has stated in the reply to the application of the respondent that she did not abide by paying off the debts of their son and instead he 31 had to pay the amount beyond his means. The rejoinder was filed by wife and in reply to para 6 it is merely denied. It is however, not stated as to how she had paid off the debts. The petitioner on the other hand also does not say how he had paid off the debts. Nor the same is stated in the rejoinder by the respondent. It is also submitted that Anish Sharma had siphoned off a very huge amount of money in several businesses and has purchased a huge flat at Chandigarh where they are residing. He is also maintaining a Innova Car worth 12 lacs. It is further submitted that it has escaped the notice of the court that the very purpose of selling off the only house of the petitioner was to pay off the debts of Anish Sharma which was about Rs. 43 lacs. There is not a single document except the letter dated 7.7.05 issued by the petitioner to one Sethi stating that his son (Anish 32 Sharma) had entered into conspiracy and had transferred the sum of Rs. 4,83,612/- in his name by cheating petitioner. Apart from this there is no other document to show that petitioner had paid off the debts of his son.
27. Now coming to the health of the petitioner. It is stated that the petitioner in his application U/s. 24 HMA had given the details of his claim for maintenance from page 1 to 11 but the same has not been dealt with which was claimed on the basis of his serious ailments. The contents from page 1 to 11 does not say anything about the health of the petitioner except that the respondent alongwith their son Anish had extracted huge money from petitioner from time to time. Petitioner had helped his son for setting up his various business which ultimately were shut down, therefore, there is nothing in this to be considered. He has 33 claimed that he is a patient of CADHT NTDDM and is also a patient of diabetic which has paced up on account of his undue mental and physical stress which has caused Ischio Metal Abscess and he was operated upon and had to be admitted again in Sir Gang Ram Hospital on 6.2.04. He remained there till 18.2.04 and had to spend about Rs. 50,000/- and one of the bill paid was for Rs. 44,691/- at time of his discharge. A letter from the doctor who had treated the petitioner is also annexed. There are other certificates and prescriptions issued by Dr. S P Byotra dated 15.4.04 and Dr. M P Gupta dated 12.3.04 under whom petitioner is taking treatment. It is also stated that petitioner had to spend about Rs. 10,000/- monthly for his treatment.
28. It is true that petitioner has stated so but it appears that while considering his income his health and the medical expenses 34 to be incurred by him were not considered. He had filed the copy of the certificate issued by doctor at Vimhans wherein the doctor has recorded the history as patient is a old aged male with history of COPD (Dyspnoea on exertion Gr. II -III) with coronary artery disease; with TVD (Triple Vs Ds) with hypertension with diabetic neuropathy with Chr CHF, presenting frequently with TIAs on professional routine work. Difficulty in walking with chest pain on exertion. This document was filed subsequent to the order. Petitioner also had filed the discharge summary from the Ganga Ram Hospital dated 18.2.04 and the subsequent treatment regarding his suffering from prostrate on 24.2.04. On 12.4.04 he was diagnosed as suffering from dizziness on standing/walking.
29. This certainly has been overlooked while passing the 35 order and appears to be error on record and further on account of discovery of new and important evidence regarding the health of the petitioner i.e. document PA1 which could not be produced when the order was passed, therefore, the the order on this account calls for review.
30. Now coming to the review application filed by the respondent. It is stated that the it is falsely stated by petitioner that she is the sole owner of flat No 14, First floor, Shankar Market at Cannought Place having rental income of Rs. 50,000/- per month. It is stated that she had stated in her reply to the application U/s. 24 HMA that the half portion of the flat no 14 first floor, Shankar Market was acquired by her from her father by way of Will and due to paucity of finds to meet the medical and other necessities of life she was compelled to distress sale of 36 the same and to do so the petitioner was responsible as he did not make provisions for her maintenance. It is stated that the above fact had escaped the notice of the court and had observed in the order at para 27 and 28 that respondent has also not disputed that she is the owner of the Shankar Market House having rental value of Rs. 50,000/- and the same is incorrect. It is stated that neither she is the owner nor in possession of the said flat nor she is getting any rent from it. It is stated that she was compelled to distress sell the same on 2.8.06 to one Smt. Vijay Lakshmi Mahajan.
31. Reply to the same was filed. The averment were denied. It is stated that the story for meeting the medical expenses was only to claim sympathy of the court. It is stated that the property is located in the prime area and the value of the same would not 37 be less than Rs. 75 lacs. The ground of limitation was also raised but the application was filed within the period of limitation as it was filed on 2.6.2007.
32. It is true that the respondent has stated that she had taken preliminary objection regarding the sale of property and there is error in observing in the order that the same is not disputed and it calls for review.
33. However, as per the rule framed by Hon'ble High Court of Delhi under Rule 16 it is provided that every application of maintenance pendente lite etc shall state average monthly income of the petitioner and the respondent, their sources of income, particulars of other moveable and immoveable property owned by them jointly or severally and the details of their liabilities. The respondent has not disclosed her income and details of the 38 immoveable properties. The application U/s. 24 HMA was moved on 22.9.06 and distress sale was done on 2.8.06 which is just before moving the application. The same does not appears to be bonafide. Therefore, she was required to disclose the same which she has deliberately concealed from the court and therefore, assessing her income to the tune of Rs. 50,000/- would not be inappropriate and I am of the opinion that the order on this ground does not call for any modification and the application of the respondent is accordingly disposed off.
34. In view of the above discussion where certain portion of the earlier order is to be reviewed, the income and the maintenance is to be re-assessed. The law on the subject has been crystallized by Delhi High Court in Alok Kumar Jain V. Purnima Jain 140 (2007) DLT- 476 as follows: "Law U/s. 24 39 HMA is well crystallised. From the judicial precedents, factors which can be culled out as required to be kept in mind while awarding interim maintenance are as under: (i) Status of the parties; (ii) Reasonable wants of the claimant; (iii) The income and property of the claimant; (iv) Liabilities, if any of the husband; (vi) The amount required by the wife to live a similar life-style as she enjoyed in the matrimonial home keeping in view food, clothing, shelter, educational and medical needs of the wife and the children, if any, residing with the wife and (vii) Payment capacity of the husband. Further, where it is noted that the respective spouses have not come out with a truthful version of their income, some guess work has to be resorted to by the court while forming an opinion as to what could possible by the income of the two spouses. The guess work has to be based on 40 the status of the family, the place where they are residing and the past expenses on the children, if any."
35. Since the petitioner has not disclosed his income as it is stated that he is not required to file the ITR, therefore, on the nature of his work and status his income was assessed as Rs. 2 lacs per month in the earlier order which is to be reviewed, however, keeping in view the ailment which he is suffering and the nature of the job where long standing is required which he is unable to do, his income will drastically go down to half than previously assessed, therefore, his income is now assessed as Rs. 1 lac per month. In addition to the same the petitioner is also facing other ailments which require medical attention and the medical expenses per month of Rs. 10,000/- would be likely to be spent by him.
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36. On the other hand respondent's income is assessed from the house property to the tune of Rs. 50,000/- per month. In addition to the same she was given half share of the sale proceed which is about Rs. 10.5 lacs which she has not shown whether she has spent the same on paying off the debts, therefore, I assume that she had not paid off the debts. Accordingly Rs. 10,000/- as interest on that amount would be further available to her.
37. As per the law laid down in Annurita Vohra V. Sandeep Vohra 110 (2204) DLT- 546 where it was held that the income of the earning member is to be divided in three portion out of which two portion should be given to the earning member and one should be made available to the dependent. Thereby the respondent would be entitled to about Rs. 33,000/- per month as 42 maintenance. However, the income which is being received by her from the house property and interest is more than this therefore, I am of the considered opinion that she is not entitled to the monetary maintenance. However, since the respondent is also suffering from ailments and the income of the petitioner is little more than that of respondent, therefore, it would be appropriate that the medical expenses of the respondent be paid by the petitioner on the actual basis on the production of the payment receipt.
38. Accordingly, as discussed above the application of the petitioner is allowed to the extend stated above and the application of the respondent is dismissed.
ANNOUNCED TODAY GURDEEP SINGH
29.1.2008 ADDITIONAL DISTRICT JUDGE
DELHI.