Punjab-Haryana High Court
Atul Seth vs Ruby on 9 February, 2018
CMM 98 of 2016 in
FAO-M-278 of 2013 [1]
CMM 98 of 2016 in
FAO-M-278 of 2013
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Atul Seth Vs. Ruby
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Present: Mr. Sanjeev Sharma, Advocate for
Mr. Ashok Gupta, Advocate for the appellant.
Mr. Sukhdev Singh, Advocate for
Mr. L.S. Sidhu, Advocate for the respondent.
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Aggrieved by the dismissal of his petition, the husband/ appellant has preferred first appeal which stands admitted before this Court.
The respondent - wife had filed an application under Section 24 of the Hindu Marriage Act claiming a sum of Rs.15000/- per month for herself and for the minor child as maintenance pendente lite as she has got no source of income and the husband is a businessmen running business of import and export of various goods such as Cycle Parts, Basmati Rice and Cosmetic goods under the name and style of Avi Trade Impex and Avi Niryat and has income of more than Rs.5 lacs per month. He owns house and business premises in Ukraine besides having share in the property in Kaithal, details of which have been given in Annexure A-8.
The application is contested on the ground that the applicant wife along with daughter Purnima Seth left Ukraine on February 26, 2006 and never returned to her matrimonial home despite the fact that return tickets for both wife and daughter were given by the non-applicant/ husband as such she has willfully deserted the husband. It was admitted that the 1 of 6 ::: Downloaded on - 21-05-2018 15:19:39 ::: CMM 98 of 2016 in FAO-M-278 of 2013 [2] District Judge, Patiala had awarded a sum of Rs.7500/- per month each to the applicant and the daughter while deciding application under Section 24 of the Hindu marriage Act, for short 'the Act'. Strong reliance was placed on the acquittal order dated March 31, 2016 passed by Judicial Magistrate Ist Class, Patiala in criminal case registered at the instance of the applicant. It is averred in the reply that with the dismissal of the petition for divorce, the order dated July 15, 2013 granting maintenance pendente lite at the rate of Rs.15000/- p.m. to the applicant and the minor daughter came to an end and they are entitled only for sum of Rs.12000/- p.m. under Section 125 Cr.P.C.. It is averred that the applicant is running a boutique in Patiala as per the income tax return. It was highlighted in the reply that a sum of Rs.5 lacs had been deposited under the orders of Supreme Court. The amount regularly deposited was not withdrawn by the applicant, which indicates that she does not require any amount of maintenance. She claims that he is unemployed at present and has enrolled himself in Employment Exchange, Kaithal, on April 24, 2014. The aforesaid application was dismissed as withdrawn on April 21, 2015.
Thereafter the wife filed another application bearing CMM No. 98 of 2016 for grant of maintenance pendente lite for herself and for the minor daughter claiming that she has got no income and that day to day expenses of the applicant and her daughter are more than Rs.15000/- p.m. The daughter is 11 years school going child and she is studying in British Co-ed. High School, Patiala where her tuition fee is Rs.8500/- p.m. Receipts of payment of various dues with the school were placed on record, reiterating that husband is a businessman running business of import and 2 of 6 ::: Downloaded on - 21-05-2018 15:19:41 ::: CMM 98 of 2016 in FAO-M-278 of 2013 [3] export of various goods such as Cycle Parts, Basmati Rice and Cosmetic goods under the name and style of Avi Trade Impex and Avi Niryat and he owns offices in Ukraine and has an income of Rs.5 lacs per month and that she has got a right to live in the same condition at par which the husband is enjoying. It is claimed that the husband has share in number of properties located in Kaithal, details of which had been given in Annexure A-8.
The husband has opposed the claim of the applicant under Section 24 of the Act on the ground that he has been acquitted in the criminal case and the allegations of cruelty are not established against him and his family members. The daughter was born in Ukraine. She had unreasonably not returned to Ukraine when came to India in 2006. He claims that the matrimonial home is still Ukraine and she has abandoned the matrimonial home and deprived the husband of love and affection. He was arrested in criminal case. His passport was taken in custody as such he was not able to return to Ukraine. His passport has not been returned for three to four years. He had to sell everything but he admitted that he is still working in Ukraine. On asking of the Court about his job, it has been informed that he is working as a Translator in Ukraine and earns only for few days from the said job which is not permanent.
Vide order dated July 5, 2017, taking into consideration all the circumstances, an interim order was passed. The operative part of the said order reads as follows:-
"Considering the admission made by the appellant that he had been carrying on the business smoothly as contended by the respondent till the year 2008 and also
3 of 6 ::: Downloaded on - 21-05-2018 15:19:41 ::: CMM 98 of 2016 in FAO-M-278 of 2013 [4] the fact that the appellant has not produced any document to substantiate his plea that he had sold such business, we direct that the appellant to pay as an interim measure a sum of Rs.10000/- per month to the appellant towards maintenance and an equal amount of maintenance to his daughter till we dispose of this application from the date of the application, namely, 04.07.2016. We also direct the appellant to produce the documents to substantiate his plea that he had sold away his business that was run by him in Ukraine till 2008.
Post the matter on 18.09.2017."
We have heard counsel for the applicant as well as counsel for the non-applicant and gone through all the relevant documents appended by both the parties. The details of the income of the appellant have not been disclosed by any authenticated document but it is an admitted fact that the husband is an able bodied person still settled in Ukraine. Taking into consideration his income from import and export business run under the name and style of Avi Trade Impex and Avi Niryat and other properties owned by him and his family members a sum of Rs.7500/- per month to the applicant and similar amount to the daughter had been granted while deciding application under Section 24 of the Act by the lower Court on November 5, 2011. Taking into consideration the amount of maintenance awarded under Section 125 Cr.P.C. it was ordered that the amount awarded will be adjustable against the amount of maintenance pendente lite . The appellant has not been able to satisfy this Court that on account of the 4 of 6 ::: Downloaded on - 21-05-2018 15:19:41 ::: CMM 98 of 2016 in FAO-M-278 of 2013 [5] pending litigation or for other circumstances, he has stopped his business of import and export. His earnings are still in foreign currency and it is not feasible for the wife to get the details of the income from his business and other resources. A bit of estimation in said circumstances would be permissible to decide the claim of the applicant wife under Section 24 of the Act who is shouldering the responsibility of brining up the minor daughter by providing her best education in the area where she is residing.
We are satisfied that the educational and upbringing expenses are not less than Rs.15000/- per month. The circumstances that husband has been acquitted in the criminal case or that the conduct of the applicant had not been appreciable of having left the matrimonial home in the year 2006 or having allegedly abandoned the husband have been considered by us but none of these circumstances are relevant for adjudication of the application under Section 24 of the Act as no material has been brought before the notice of this Court that the husband has ever made any attempt for brining about the reconciliation or to take up steps to care and maintain the minor child. A judicial notice has been taken of the escalation of the prices after the year 2011 till date. A sum of Rs.25000/- (INR) as maintenance pendente lite for herself and the minor daughter would be a reasonable amount in the circumstances of the present case taking into consideration the fact that a sum of Rs.15000/- had been ordered for the maintenance of the applicant and the child in the year 2011 while deciding the application under Section 24 of the Act by the lower Court. The litigation expenses are assessed as Rs.55000/- payable to the wife. A sum of Rs.20000/- earlier paid will be deductible from the sum of Rs.55000/- assessed as litigation expenses. It is 5 of 6 ::: Downloaded on - 21-05-2018 15:19:41 ::: CMM 98 of 2016 in FAO-M-278 of 2013 [6] ordered that the amount of maintenance pendente lite will be payable w.e.f. the date of the application i.e. July 2016. Any amount paid at the rate of Rs.10000/- per month under the order dated July 5, 2017 will also be adjustable. The amount paid pursuant to the orders under Section 125 Cr.P.C. will also be adjustable against the amount assessed by this Court during the pendency of the appeal.
For payment of the arrears of the maintenance pendente lite and litigation expenses, to come upon July 30, 2018.
(M.M.S. BEDI)
JUDGE
February 9, 2018 (GURVINDER SINGH GILL)
sanjay JUDGE
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