Delhi District Court
Anubha vs Krishan Kant on 14 August, 2012
ANUBHA V/s KRISHAN KANT
HMA No. 164/2011
14.08.2012.
ORDER
1 Petitioner/wife has sought interim maintenance U/S 24 of HMA from her husband/respondent stating therein that the parties were married according to the Hindu Rites and Ceremony at Ashok Vihar on 03.02.2007 and parties started living together in the matrimonial home thereafter.
2 Petitioner/wife has expressed various of her grievances relating to dowry and gifts etc as stated in the main petition by which she has sought divorce. 3 The averments necessary and relevant for the purpose of deciding her application for interim maintenance are begin only from para 23 onwards of this application while in the remaining paras, the applicant has only repeated the detailed averments of the main petition.
4 Regarding the interim maintenance, she claims that respondent is living luxurious life, doing his own business and having a monthly income of about Rs. 1,00,000/.
5 It is alleged by the petitioner/wife that respondent/husband has two shops of hardware tools under the name and style of M/s Gupta & Sons and Gupta Traders at Chawri Bazaar. She further alleged that the respondent maintained two cars one being Santro i.e. bearing No. DL1CJ40465 and second being Indica i.e. bearing No. DL1945.
6 Petitioner/wife further alleged that respondent/husband has no liability whether social, moral or legal except to maintain the petitioner/wife and the daughter of the parties. She further claims that minor daughter baby Kaina is a student of Pre Nursery Play School and presently she is totally depending upon her paternal grand father for her day today needs. The minor child requires all basic necessities essential to maintain her in the present society in all respect including her education expanses, personal articles, clothing, toys and also going in accordance with status in society. 7 The petitioner/wife has assessed a sum of Rs. 15,000/ p.m. being necessary for the proper maintenance of the minor child. For herself, the petitioner/wife states that she is unemployed and totally depended upon her father for her day today needs and activities and to maintain her dignity. Further that she required at least Rs. 20,000/ per month for the above mentioned needs.
8 Besides this petitioner/wife also alleges that respondent is owning various banks fix deposits, credit cards, debit cards and ATM cards of various banks and insurance policy of Rs. 20,00,000/.
9 Respondent/husband has strongly opposed the application in his written reply besides citing any allegation on the merits of the main case regarding the ground of cruelty and desertion on the point of maintenance. Respondent/husband has denied living luxurious lifestyle. He further states that he is living with his parents and doing a small job with Macman Tools Pvt. Limited and getting a salary of Rs. 3300/ only and father of the respondent has a small shop of rent in a small street and as well as tools. He further states that even the income of his father is not sufficient to make both ends meet. He further states that one Mr. D.B. Gupta, is the partner in Macman Tools Pvt. Ltd. is a generous person and he himself also works with small finances in Azadpur/Adarsh Nagar.
10 As regards, the needs of the minor child who is stated to be going to a play school, the respondent does not dispute his liability to maintain the petitioner and their daughter, however, he states that he is prepared to keep and maintain them without any precondition and rather on the terms of the applicant and wants to show all respect for their religion.
11 However, respondent/husband has denied the education expenses of the minor child and he alleged that minor child is receiving the education free of cost being daughter of a teacher as petitioner herself is also working as a teacher and receiving "a good salary" of Rs. 6000/ per month.
12 As such, according to the respondent/husband, the petitioner/wife is self sufficient and needs no maintenance and on the contrary, it is the respondent/husband who is unfortunately working only at a salary of Rs. 3300/ per month. 13 He further claims that even their house has been sold off and they live in a rented flat at Ashok Vihar. Respondent/Husband has also claims that petitioner/applicant/wife further gives tuition as well from which he has owned another sum of Rs. 5000/ per month.
14 Respondent/husband also claims that he had taken a loan of Rs. 1,50,000/ for giving it to the petitioner/applicant as per the Order of the concerned Court at the time of allowing his anticipatory bail application in the dowry case filed by the applicant/petitioner and that he has to repay the said loan of Rs. 1,50,000/ in installments.
15 The respondent/husband prays for the application to be dismissed and for a direction to be issued to the petitioner/applicant to join the matrimonial house. 16 Both, the application as well as reply are accompanied by a supporting affidavit, besides also, with the copy of the order of the concerned Court whereby the respondent/husband had to pay a sum of Rs. 2,00,000/ to the petitioner/applicant as a precondition for the grant of Anticipatory Bail. He has also filed a photocopy of the cheque for a sum of Rs. 1,50,000/ and other supporting documents. 17 Besides a salary certificate has also been filed stated to have been issued by the Director namely Mr. Anil Gupta as per which the basic salary of the respondent/husband as on 01.05.2011 being Rs. 3300/ while at the same time the same certificate shows his basic salary per annum being Rs. 24,640/. Even going by a sum of Rs. 3300/ as being basic salary, same would come to Rs. 39,600/ p.a. whereas it is the total/gross salary per annum is being stated as Rs. 39,640/. The salary certificate for the above discussion is rendered absolutely defective and thus unbelievable on the face of it. Even otherwise, the same does not meet the requirements of minimum wages. 18 It is also selfcontradictory that though the respondent/husband claims to be working only as a Helper with Macman Tools Pvt. Ltd., the salary certificate filed by the respondent/husband himself is stating his designation as a Godown InCharge. Firstly, being contradictory to the petitioner and falsifying his own stand, it is not believable that the basic salary of a Godown InCharge would be Rs. 3300/ per month.
19. In the detailed affidavit directed to be filed by the parties following the guidelines of Hon'ble High Court in Puneet Kaur Vs. Inderjeet Singh Sawhney, the petitioner/applicant has disclosed her educational qualification as only 12th passed, that too from National Institute of Open Schooling in the year 2004. She has parents and an unmarried sister. She has claimed herself to be not in any job. She has only one fixed deposit of Rs.1 lac and no other kind of asset i.e. movable or immovable property. However, she states to be having her bank account with Allahabad Bank being a saving account.
20 Petitioner/applicant has facilities of TV, Fridge and split Air Conditioner at her parents' house and apart from that she has given the particulars of the gold and diamond jewelry and also silver which were gifted to her by her husband and the inlaws and also the jewlery given by her parents and all being a subject matter of the pending case under Section 406498A of IPC.
21 She has stated the accurate education expenses of the child being Rs. 80,657/ for the period from November 2010 onwards till April 2012 i.e. for a total period of almost two years and apart from this, a sum of Rs.1000/ is being spent per month on dance class. The conveyance expense for commuting is stated as Rs.1,000/ per month to meet relatives and friends etc. 22 The status of the family members of the petitioner/applicant show that father is a graduate, working as Manager Accounts in a public limited company having an annual salary in the tune of Rs.5.32 lacs to 30.03.2012 and a sum of Rs.6.10 lacs per annum w.e.f. 01.04.2012, besides the rental income of Rs.84,000/ p.a. 23 The marriage expenses incurred were somewhere Rs.20 lacs. Expenditure on festival is stated as Rs.30,000/ p .a. while the mode of outstation travel is stated as by train in Third Class AC. Child is going to a Play School with the name of Tiny Tulips, Sec4, Dwarka, New Delhi. The mother of the petitioner/applicant is stated to be owning a house comprising ground and first floor having two room set each, located in Mohan Garden Extension, at Uttam Nagar, Delhi.
24 As regards litigation expenses there are three cases which the petitioner/applicant has been compelled to file i.e. the present divorce petition, complaint case under Protection of Women from Domestic Violence Act and thirdly the case under Section 406/498A IPC based upon the complaint of the petitioner/applicant. 25 In his detailed affidavit, the respondent/husband has reitereated that he is working as Assistant/Helper in Macman Tools, Pvt. Ltd., as against his own salary certificate filed by him, wherein his designation is stated as Godown Incharge. 26 The husband in his detailed affidavit has denied point blank having any kind of business of his own or any supplementary income and also having any kind of property whatsoever, immovable or movable. He has specifically stated that he has only one saving account receiving a nominal interest of Rs.268/ in the whole year and he has no NSC, IVP or any other kind of deposits under any scheme whatsoever. 27 Respondent/husband is stated to be having only saving bank with the HDFC bank and he claims that normally he has cash only counted in hundred rupees, left after paying the entire expenses to his mother or running the household and the kitchen contribution. The respondent/husband has denied on his affidavit holding any LIC policy. He has denied having any fridge or air conditioner in his house where, he lives and that he has only a TV.
28 A sum of Rs.2,000/ is being given by the respondent/husband to his mother towards the kitchen and household expenses and towards the rent of his house. Since he is living in the rented house taken by them. He denied having any car as against the claim of the petitioner/applicant. The respondent is claimed to be traveling by bus on which he has spent Rs.500/ per month. He denied having any conveyance of his own. 29 From the entire detailed replies given by the respondent/husband, he has made it out as if he is a man of hardly any means and just barely able to make both ends meet.
30 Respondent/husband failed to file any salary slip which must have been issued to him regularly and on the basis of which, the certificate could have been prepared and issued. The contradiction are glaring i.e. between the basic salary shown per month and the basic salary per annum as shown and besides the salary shown being much below the minimum wages eve, not to speak about the contradiction in the designation or the post on which, the respondent/husband is working, while the respondent/husband has claimed to be working as a helper/assistant, his own document i.e. salary certificate shown him to be working as a Godown Incharge. 31 During arguments, it was strongly contended by ld. counsel for petitioner/applicant that respondent/husband has given wrong facts on affidavit in as much as Macman Tools, Pvt. Ltd. of which, respondent/husband is claiming to be only an employee, is shown to be engaging about 20 employees, its contact person being Sh. Anil Gupta and the address of the company shown to be B21, Lohia Road, Adarsh Nagar, Delhi as against the address on the salary certificate shown as B6, Jai Prakash Road, Adarsh Nagar, Delhi.
32 Further it was also contended that the other address B21 in the same colony also, as per the electoral roll, several people are residing at the given address and as such it is not possible that the company is running at that address also. 33 Besides reference was also had to the minimum wages schedule as applicable w.e.f October 2001, for the category of clerical and nontechnical supervisory staff being matriculates but nongraduates being Rs.321/ per day and for graduates and above being Rs.339/ per day.
34 Going by this, the minimum wages of the respondent/husband, since he has stated himself to be 12th passed and under graduate, his salary for the month would come to at least not less than somewhere above Rs.10,000/ per month. 35 The courts attention also being drawn towards the income tax record produced by the petitioner/applicant particularly starting from page 7 onwards right up till page 17 which do not only show that the respondent/husband was very well filing income tax returns but also that his annual income as assessed are stated to be Rs. 1,18,740/ as against the figures being furnished by the respondent/husband himself on his affidavit.
36 Not only this petitioner/applicant has also come forward with the extracts from the Internet and the record relating to the policy existing in favour of the respondent/husband and once again as against the submission and the statement of the respondent/husband made on his affidavit.
37 The premium paid certificate on page 19 is showing about Rs.10,828/ as being annual premium paid by the respondent/husband.
38 Respondent/husband has failed to counter all these documents which were brought on record by the petitioner/applicant and in fact has had nothing to say thereafter and for the purpose of this application, the said documents have gone rebutted. On the other hand, they have strongly contradicted and falsified the entire stand of respondent being of a point blank denial adopted by the respondent/husband. 39 Furthermore, ld. counsel for petitioner/applicant also placed reliance upon the copy of the school record i.e. particularly being the Registration Application Form dated 09.08.2010 got filled up in the year 2010, wherein it was stated by the respondent/husband himself under his own signature on the form that his occupation was 'business'.
40 There is hardly anything left in order to infer that the respondent/husband through and through stated blatant lies in his reply, supporting as well by the detailed affidavit filed and he has made false affidavit on the major aspects i.e. his occupation, income, assets and possession, only in order to avoid maintenance order.
1. In Bharat Hegde v. Saroj Hegde, 140 (2007) DLT 16, this court laid down the following principles for fixing the maintenance under Section 24 of the Hindu marriage Act:
4. Right to maintenance is an incident of the status from estate of matrimony. Interim maintenance has an element of alimony, which expression, in its strict sense means allowance due to wife from husband on separation. It has its basis in social conditions in United Kingdoms under which a married woman was economically dependent and almost in a position of tutelage to the husband and was intended to secure justice to her.
5. Section 24 of Hindu Marriage Act goes a step further in as much as it permits maintenance to be claimed by the husband even against the wife.
6. While considering a claim for interim maintenance, the court has to keep in mind the status of the parties, reasonable wants of the applicant, the income and property the the applicant. Conversely, requirements of the non applicant, the income and property of the non applicant and additionally the other family members to be maintained by the non applicant have to be taken into all. Whilst it is important to insure that the maintenance awarded to the applicant is sufficient to enable the applicant to live in somewhat the same degree of comfort as in the matrimonial home, but it should not be so exorbitant that the non applicant is unable to pay.
7. Maintenance awarded cannot be punitive. It should aid the applicant to live in a similar life style not expose the non applicant to unjust contempt or other coercive proceedings. On the other hand, maintenance should not be so low so as to make the order meaningless.
8. Unfortunately, in India, parties do not truthfully reveal their income. For self employed person 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 applicant under Section 24 of 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. Nonapplicant's liabilities, if any.
7. Provisions for food, clothing, shelther, 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 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 Act.
41 In Jayant Bhargava V. Priya Bhargava, 181 (2011) DLT 602, this court laid down the factors to be taken into consideration for ascertaining the income of the spouse. The relevant portion of judgment is reproduced hereunder: "12. It is settled position of law that a wife is entitled to live in a similar status as was enjoyed by her in her matrimonial home. It is the duty of the courts to ensure that it should not be a case that one spouse lives in a life of comfort and luxury while the other spouse lives a life of deprivation, poverty. During the pendency of divorce proceedings the parties should be able to maintain themselves and should be sufficiently entitled to the represented in judicial proceedings. It in case the party is unable to do so on account of insufficient income, the other spouse shall be liable to pay the same. (See Jasbir Kaur Sehgal (Smt.) v. District Judge, Dehradun and Ors., reported at V (1998) SLT 551, III (1997) CLT 398 (SC), II (1997) DMC 338 (SC) and (1997) 7 SCC 7).
13. A Single judge of this Court in the case of Bharat Hegde v. Saroj Hedge, reported at 140 (2007) DLT 16 has culled out 11 factors, which can be taken into consideration for deciding the application under Section 24 of Hindu Marriage Act.
14. Further it has been noticed by the Courts that the tendency of the spouses in proceedings for maintenance is to not truthfully disclose their true income. However, in such cases some guess work on the part of Court is permissible.
15. The Supreme Court of India in the case of Jasbir Kaur (Smt) (supra), has also recognized the fact that spouses n the proceedings for maintenance do not truthfully disclose their true income and therefor some guess work on the part of the Court is permissible. Further the Supreme Court has also observed that "considering the diverse claim made by the parties one inflating the income and the other suppressing an element of conjecture and guess work does enter for arriving at the income of the husband. It cannot be done by any mathematical precision".
16. Although there cannot be an exhaustive list of factor, which are to be considered in quessing the income of the spouses, but the order based on guess work cannot be arbitrary, whimsical or fanciful. While guessing the income are either not disclosed or not correctly disclosed, the Court can take into consideration amongst others the following factors:
(i) Life style of the spouse;
(ii) The amount spent at the time of marriage and the manner in which marriage was performed;
(iii) Destination of honeymoon;
(iv) Ownership of motor vehicles;
(v) Household facilities;
(vi) Facility of driver, cook and other help;
(vii) Credit Cards;
(viii) Bank Account details;
(ix) Club membership;
(x) Amount of Insurance Premium paid;
(xi) Property or properties purchased;
(xii) Rental income;
(xiii) Amount of rent paid;
(xiv) Amount spent on travel / holiday;
(xv) Locality of residence;
(xvi) Number of mobile phones;
(xvii) Qualification of spouse;
(xviii) School(s) where the child or children are studying when parties were residing together;
(xix) Amount spent on fees and other expenses incurred;
(xx) Amount spend on extracurricular activities of children when parties were residing together;
(xxi) Capacity to repay loan.
42 For the time being, going by the entire circumstances coming up on record, taking the respondent/husband to be businessman and having concealed his income, involvement in the business of tools, the respondent/husband not coming forward with his true income from the said business, his income is being assessed as per the amounts stated in the income tax returns, although it is a fact that even in the income tax returns, most businessmen are reflecting income much lower than the actual. In the absence of any further documents, the income of the respondent/husband is now being assessed at minimum of Rs.30,000/ and since he is admittedly not having any other legal financial liability to maintain apart from the petitioner/wife and the minor child, being his first liability under the law following the principles and guidelines referred above, the petitioner and the minor child are being held entitled to interim maintenance from the respondent @ 5,000/ per month for each one of them, w.e.f. the date of filing of the application i.e. 04.05.2011.
While allowing the application of the petitioner/applicant, the conduct of the respondent is observed and taken on record for which, petitioner/wife would be at liberty to move appropriate application also.
(SUJATA KOHLI) ADJ/WEST/DELHI/14.08.2012