Delhi District Court
Pankaj Sharma vs . Renu Sharma on 2 February, 2013
1
PANKAJ SHARMA VS. RENU SHARMA
HMA No.133/11
02.02.2013.
ORDER ON APPLICATION U/S 24 HMA
Vide this order, I shall dispose off an application of the respondent/wife
whereby she has sought interim maintenance U/S 24 of HMA for herself as well as the minor child of the parties Master Tanishak.
2. The applicant/wife states that she herself is an Assistant Teacher in a public school named "Rastra Shakti Vidyalya", Hastsal, New Delhi and her salary is about Rs. 18,000/ per month and apart from this she has no other source of income. She further states that she has only this much means available for her as well as maintenance of the minor child who is a student of class 2nd and studying in a public school namely St. Scincillia Public School, Vikas Puri, New Delhi.
3. Further she states that after being deserted by the petitioner/husband, she has been residing alongwith her parents at Sagarpur and distance of the school of the chid from Sagarpur is more than 10 km for which a cab has been engaged and the applicant/wife has to spend Rs. 1200/ pm, besides Rs. 2000/ pm for tuition of the Pankaj Sharma Vs. Renu Sharma 2 minor by a private Tutor, and besides another sum of Rs. 8000/ to 10000/ per month on the minor child like for his clothing, medical expenses, excursions, stationary and books etc.
4. Further alleged that due to the mental and physical cruelties caused by the petitioner/husband, the applicant/wife herself has suffered from severe ailments like diabetes, deficiency of Hemoglobin and cervical pain and she has to spend a lot of money of hers on her treatment as well. The age of the respondent/wife at the time of filing of this case is stated by the petitioner/nonapplicant/husband as 31 years ans as such she would be 33 years as of now.
5. As regards the means of the petitioner/nonapplicant/husband, the respondent/applicant has alleged that the nonapplicant is Masters in Physical Education and he is also working as a Teacher in St. Sincillia Public School (referred above) and his salary is stated to be Rs. 35,000/ pm. Further alleged that petitioner/non applicant/husband is owning two houses in Delhi and rental income therefrom is stated to be about Rs. 15000/ pm, besides he is also alleged to be having agricultural land at his native village called Kasisho and income from the said agricultural land is alleged to be around Rs. 2,00,000/ per annum. Besides, the petitioner/nonapplicant/husband is also alleged to be having several investments in the form of several FDRs and even huge bank balance apart from that. According to the respondent/applicant, she herself and the Pankaj Sharma Vs. Renu Sharma 3 minor child are the only persons, whom the petitioner/nonapplicant/husband is liable to maintain legally and whereas he himself is living a lavish lifestyle and enjoying all comforts and luxuries, while she herself and the minor son are living in misery, though they are entitled to live the life as per the status and income of the husband/non applicant.
6. According to the applicant/wife, in all, the income of the petitioner/non applicant/husband is not less than Rs. 65,000/ per month by all means, hence the present application claiming a monthly maintenance @ Rs. 10,000/ per month for her and another Rs. 15,000/ per month for the minor child, besides seeking one time litigation expenses to the tune of Rs. 22,000/.
7. The petitioner/nonapplicant/husband further claims that the present application is a gross abuse of process of law and that the applicant/wife has suppressed her own monthly salary from the Court as well as her immovable properties. It is further stated that applicant/wife deliberately did not disclose the details of her income and assets, and for this reason alone, the application would deserve to be dismissed straightaway.
8. The petitioner/nonapplicant/husband has disputed the salary of the applicant/wife being Rs. 18,000/ per month only. According to him, the applicant/wife is serving in the grade of Rs. 40005000 being her basic pay, and her gross monthly Pankaj Sharma Vs. Renu Sharma 4 salary is around Rs. 26,000/ pm. Besides the petitioner/nonapplicant/husband alleges that applicant/wife is engaged profitably in the work giving private tuition, but applicant/wife has concealed all the facts from the Court.
9. Further as regards the expenses of the minor are concerned, the petitioner/nonapplicant/husband has countered, that since the child is already studying in the school where he himself is admittedly serving as a Teacher, all the expenses towards the education of the child are already being borne by the petitioner/non applicant/husband as per the details in the Fee Card referred to in the said reply as annexure "A".
10. The petitioner/nonapplicant/husband claims to be making a payment to the school towards tuition fee approximately @ Rs. 700/ per two months. Further it is stated that the applicant/wife herself has no other financial liability except to maintain the minor child and on the contrary, the petitioner/nonapplicant/husband is having a financial liability to maintain, his widow mother and also an unmarried sister, towards whom he is spending whole of his monthly salary for the household expenses and other miscellaneous expenses.
11. Further, the petitioner/nonapplicant/husband has denied having any other source of income, except his admitted salary of Rs. 35,000/ pm. Even the distance between the school and the house of the applicant/wife has been disputed, as it is Pankaj Sharma Vs. Renu Sharma 5 contended on behalf of the petitioner/nonapplicant/husband that the said distance is only about six kms as against 10 kms being alleged by the applicant/wife.
12. Further the cab expenses claimed by the applicant/wife are also being disputed, and according to the petitioner/nonapplicant/husband, the cab expenses are only Rs. 900/ pm. It is contended by the petitioner/nonapplicant/husband that the minor child is not taking any tuition as alleged by the applicant/wife and the amount claimed by way of expenses incurred by the applicant/wife are stated to be absolutely false.
13. The petitioner/nonapplicant/husband further claims that it is the applicant/wife and the minor child who are living a luxurious life, having a gross salary of Rs. 26,000/ pm, and also not having anyone else to be maintained from the said amount; as against the petitioner/nonapplicant/husband himself, who is paying all the school expenses of the minor child, and besides he is to look after his widow mother and the unmarried sister.
14. The petitioner/nonapplicant/husband has denied having any other source of income whether in the form of any rental income or whether as an agricultural income. He has admitted to be having a piece of land in his native village measuring 8 Bighas, but according to the petitioner/nonapplicant/husband, the said land is a barren piece of land not yielding anything. He claims that he is left barely making the ends meet, as out Pankaj Sharma Vs. Renu Sharma 6 of his entire admitted salary of Rs. 35,000/ pm, he is to give Rs. 20,000/ to his widow mother and unmarried sister to run the household, and another Rs. 15,00/ being spent by way of school and canteen expenses of the minor child, the personal expenses of the petitioner/nonapplicant/husband himself, like on clothing and travel etc., being Rs. 3500/ pm. Besides he is also claiming to be paying some monthly installments towards a repayment of a personal loan taken from "Fullerton India" home branch for clearing the debt of his late father and also to bear education expenses of his sister (documents stated to have been annexed). The petitioner/nonapplicant/husband is claiming that on the contrary, the applicant/wife is enjoying a lavish and comfortable lifestyle alleging that she even owns an Alto Car (being Model 2011), LX, bearing No. DL9CAE0982 (photocopy of RC also annexed). Besides she is alleged to be operating a bank locker as well bearing No. 777 with PNB, Nangal Rai branch and besides which she has other several bank accounts which she has not even disclosed. The petitioner/non applicant/husband has strongly pressed for dismissal of the application.
15. Pursuant to the guidelines and directions reiterated and crystallized by our own Hon'ble High Court in Puneet Kaur Vs. Inderjeet Singh Sawhney in CM No. 79/2011, both the parties were directed to file their detailed affidavits in respect of their assets and liabilities, and accordingly both the parties filed their detailed affidavits. The respondent/applicant initially filed an affidavit more in a narrative form, avoiding the Pankaj Sharma Vs. Renu Sharma 7 specific queries contained in the affidavit which were required to be filed. Later on, she complied and filed the affidavit in the specific proforma as well.
16. Petitioner also complied and filed his detailed affidavit accordingly. Beside, both parties also came up with some relevant documents.
17. Arguments were heard.
18. Now on the basis of the entire material available on record and keeping in view the facts and circumstances, the following facts emerged:
19. Occupation of both the parties admittedly being teachers in a public school, the respondent/applicant allegedly drawing salary of Rs. 26,000/ pm while petitioner/nonapplicant/husband is admittedly drawing Rs. 35,000/ pm. The minor child of the parties is aged about 8 years old and studying in the 3rd standard studing in the school of the petitioner/nonapplicant.
20. The respondent/applicant owns a new Alto LX Model 2011 while the petitioner/nonapplicant/husband also owns one Maruti 800 car bearing No. DL3 CT1220, being an 11 year old model.
21. Petitioner/nonapplicant has an saving account with ICICI bank, at Vikas Puri, 8 Bigha barren land in his native village called Kasisho.
22. The respondent/applicant is a Graduate having professional qualification to the level of Nursery Primary Teacher Training.
Pankaj Sharma Vs. Renu Sharma 8
23. In the detailed affidavit of the respondent/applicant, her salary is stated to be Rs. 21,203/ pm as against the information given in an earlier affidavit dated 14.10.2012 as per which she stated her salary as Rs. 18,595/. She has also stated fist time in the detailed affidavit that she is having a fix deposit in the sum of Rs. 50,000/ which is bearing interest @ 9% per annum. On affidavit also, she has admitted to owning a car and a scooter, besides having savings account in PNB, Nangal Rai, and a salary account with Corporation Bank, District Center, Janak Puri, Delhi. She is also undergoing a car loan from HDFC with EMIs being Rs. 6021/ pm, rent and maintenance expenses like electricity, water, gas etc., are stated to be Rs. 1000/ pm. She has included the education expenses of the minor child as showing them to be her own expenses as per her detailed affidavit dated 21.01.2013 whereas the petitioner/non applicant/husband has claimed that it is he who has been bearing the education expenses of the child has been studying stating that the child as being studied in the school where petitioner/nonapplicant/husband is teaching.
24. For a bare 6 or 10 kms distance between home of the applicant/respondent and the school, sum of Rs. 5000/ is stated to be incurred per month. As against her own earlier version of the distance between school and house being 10 kms (also disputed) in the affidavit, the respondent/applicant states that the total distance is 25 kms per day.
25. Respondent/applicant is also paying a premium of Rs. 6347/ per annum, Pankaj Sharma Vs. Renu Sharma 9 but it is not specified in this affidavit whether it is of mediclaim or house policy or a vehicle policy. The mobile bill of the respondent/applicant is stated to be about Rs. 1000/ per month. Expenses of magazines and newspapers to bear Rs. 500/ pm and expenses for internet and cable are stated to be Rs. 2000/ pm. The household expenses are stated to be Rs. 6000/ pm, and salary of servants etc., is stated to be as Rs. 300/ pm. The litigation expenses are put @ Rs. 5000/ pm absolutely against the averments made in the application whereby Rs. 22000/ has been sought as one time litigation charges.
26. The expenditure of dependent family members is stated by the applicant to br Rs. 10,000/pm, however, without specifying as to who are the dependents on the applicant/wife, apart from her own self and the minor child. Expenditure of entertainment is stated to be Rs. 2000/ pm. The insurance premium of the car of the applicant/wife is stated to be Rs. 9127/ per annum.
27. The expenses of the petitioner/nonapplicant on family functions including birthday of children and on other festivals at Rs. 5000/ per year. The expenditure on extra activities of child are stated to be Rs. 500/ pm. Medical treatment is obtained from the private physician and the school of the child is admittedly the same where the petitioner/nonapplicant is teaching.
28. The daily expenses of the child are entirely borne by the applicant/wife as stated in which she has included the tuition fee of Rs. 2000/pm and Rs. 1200/ pm Pankaj Sharma Vs. Renu Sharma 10 towards his cab charges, Rs. 5000/ per annum towards school uniform, Rs. 500/ pm for stationary and excursions and other extra curricula activities like projects and paintings etc.
29. Monthly bill of newspaper as per the first affidavit is stated to be Rs. 240/ and that for internet is stated to be Rs. 500/ pm as against the details given in the second affidavit. There is a lot of discrepancy within the detailes furnished on the two affidavits of the applicant/wife herself, the first one on 14.10.2012 and the second one on 21.01.2013.
30. As against this, the petitioner/nonapplicant/husband himself is also a Graduate, besides B.P. Ed. and M. P. Ed., N.I.S. The petitioner/nonapplicant/husband is T.GT (P. ET). He has stated on his detailed affidavit as well, that his family comprises himself, his widow mother and unmarried sister who are totally depended upon him. In the detailed affidavit, his gross salary has been stated as Rs. 42596/ pm, but after deductions the net salary is Rs. 34,904/ pm, and he has reiterated that he has no other kind of income whether rental or whether agricultural, and on an affidavit as well, he states that the land in question owned by him in a village is a barren piece of land and not yielding anything.
31. The petitioner/nonapplicant admits to be having two saving bank accounts, one with Andhra Bank as per being his salary and other saving account with PNB as per Pankaj Sharma Vs. Renu Sharma 11 particulars. He is also having an LIC policy in the sum of Rs.2 lac and paying EMI of Rs.11,197/ per year for a period of 18 years.
32. Petitioner/nonapplicant is also stated to be incurring huge expenses on litigation as he is also facing the other matter in 498A/406 IPC filed by the respondent/applicant, however amount not specified. He travels by public transport as stated by the petitioner/nonapplicant.
33. The documents that came on record as filed by both parties are as under: Documents of the petitioner/nonapplicant.
1. Original salary slip of petitioner/nonapplicant for the month of November 2012.
2. Order dated 24.09.2012 passed by the concerned court of Ld. ASJ for the payment of Rs.3,50,000/ to the respondent/applicant in FIR bearing No.04/12 under Section 498A/406 IPC.
3. Photocopy of the school fee card of the minor child master Tanishak.
4. Copy of the RC of the car in the name of the respondent/applicant.
5. Statement of loan account showing repayment.
Documents of the respondent/applicant.
1. Salary certificate dated 21.12.2012 issued by the Accountant.
2. Bank account statement from PNB.
Pankaj Sharma Vs. Renu Sharma 12
3. Bank account statement of Corporation Bank.
4. The certificate from the Cab owner/driver.
34. For some reasons best known to the respondent/applicant, she avoided to file her salary slip,whereas the petitioner/nonapplicant has come forward with his detailed salary break up and which is clearly showing that his net pay is Rs.34,904/ as claimed by him and stated on his affidavit. The respondent/applicant chose only to file a salary certificate which, however, is not showing any salary break up neither any basic salary nor the allowances nor the gross salary nor the deductions and the net salary. All that the document dated 21.12.2012 is a hand written certificate prepared by the accountant.
35. In view of the entire plea taken by the petitioner/nonapplicant who has strongly disputed the actual salary of the respondent/applicant and contended vehemently that her net pay received was Rs.26,000/ and above, the burden lay upon the respondent/applicant to have come forward with her actual latest salary slip, instead of having relied upon a mere certificate issued by an accountant not giving any break up. The document is not found reliable. In fact, the inference may be drawn against the respondent/applicant to the extent that had the salary slip been actually produced by the respondent/applicant, the same would not have favoured the stand taken by her and would have gone against her.
Pankaj Sharma Vs. Renu Sharma 13
36. However, even assuming that the salary of the respondent/applicant was Rs. 21,000/ or around and not Rs.26,000/ as claimed by the petitioner/nonapplicant, even so taking into account the other liabilities of the petitioner/nonapplicant an undisputed fact coming up on record, it is he who has been paying the school fee of the minor child already, he also has to contribute to the household expenses, where he is residing i.e. his parental house, his father not being there, his mother being widowed (undisputed), he is having an unmarried sister (undisputed), furthermore taking also into account the comfortable circumstances, in which petitioner/nonapplicant herself is residing and maintaining a new Alto LX Model car, while on the other hand petitioner/nonapplicant is having an eleven years old Maruti 800 car, which would not only be of a zero value but be a negative liability to be maintained in view of its age.
37. The averment of the petitioner/nonapplicant made on the affidavit that the land in the village owned by him is a barren piece of land has also remained undisputed. There are certain payments indicated in the bank statement of account from PNB w.r.t. the applicant/respondent, showing certain other credit entries to the extent of even Rs. 40,000/ by way of cheques in the clearing. Whether the payment entries are of Rs. 15,000/ or Rs.40,000/, they have not been explained on behalf of the applicant/respondent as to on what account these moneys have been received. It might be quite probable that this may be on account of the tuitions as contended by the Pankaj Sharma Vs. Renu Sharma 14 petitioner/nonapplicant. The burden lay upon the respondent/applicant to explain away these entries but same was not done during the course of the arguments.
38. Even the averments regarding the bank locker being maintained/operated by the petitioner/nonapplicant has gone undisputed. Both parties have alleged against each other that they are giving private tuitions. In fact it is not improbable but a strong probability, that in today's time of inflation, that most of the teachers in their private time are opting to go in for tuitions to make some extra money. Be that as it may, It is only a case of word against word on this aspect and it has to be believed that either both parties are giving tuitions or neither.
39. Taking into account the entire circumstances of the two parties and the entire documents and the information received on the affidavit, one thing that transpires is that the two parties in themselves are almost on an equal footing w.r.t. their income. Though the salary of the petitioner/nonapplicant is more than that of the respondent/applicant, his liabilities are also greater than the respondent/applicant, which would balance their financial condition. By no stretch of imagination, the respondent/applicant can be considered to be within the definition of a dependent upon the petitioner/nonapplicant in any manner. She is educated, professionally qualified working as a teacher just as a petitioner/nonapplicant.
40. The general life style, mode of travel of respondent/applicant rather seem Pankaj Sharma Vs. Renu Sharma 15 better and more comfortable. She is traveling by a new car while the petitioner/non applicant travels by public transport, has to divide his income between his widowed mother and unmarried sister at one hand, the minor child on the other and his own personal expenses. He is also having to pay EMIs to meet his deceased father's liability even having gone undisputed.
41. It may also not be ignored that the expenses on the 11 years old car would be also there for the petitioner/nonapplicant, which in case of the new car, respondent/applicant would be almost absent.
42. Taking a broad perspective by and large, both parties for their own selves would be on an equal footing from the point of view of their income but if at all, their standard of living is compared and their liabilities are compared, it would clearly be the petitioner/nonapplicant who would turn out to be on the weaker side and as such applicant/wife cannot be held entitled to maintenance for herself in this case.
43. Our own Hon'ble High Court, in a judgment rendered by his lordship in MC No.491/09 titled as Sanjay Bhardwaj & Ors. The State & Anr., Wherein also though maintenance had been fixed by the Ld. Magistrate, same was in question and it was observed by his lordship that Ld. Magistrate fixed the maintenance without considering the contention raised by the husband. That the husband had lost a job in Angola, Africa, where he was working before marriage because his passbook was seized Pankaj Sharma Vs. Renu Sharma 16 by police and he could not join his duties back. After marriage he remained in India because he was not employed, his lordship after some discussion held that no law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact that whether he earns or not. Court cannot tell the husband that he should beg, borrow or steal but given maintenance to the wife, more so when the husband and wife are almost equally qualified equally capable of earning and both of them claimed to be gainfully employed before marriage. It was observed by his lordship as under: "We are living in an era of equality of sexes. The Constitution provides equal treatment to be given irrespective of sex, caste and creed. An unemployed husband, who is holding an MBA degree, cannot be treated differently to an unemployed wife, who is also holding an MBA degree. Since both are on equal footing one cannot be asked to maintain other unless one is employed and other is not employed. As far as dependency on parents is concerned, I consider that once a person is grown up and educated he cannot be asked to beg and borrow from the parents and maintain wife. The parents had done their duty of educating them and now they cannot be burdened to maintain husband and wife as both are grown up and must take care of themselves."
44. While setting aside the order of Ld.Magistrate granting maintenance of Rs. 7500/ per month to the wife, his lordship observed in CM No.949/2008 titled as Manish Kumar Vs. Pratibha as under: "From the perusal of Section 24, it is abundantly clear that the object and Pankaj Sharma Vs. Renu Sharma 17 intent of this Section is to enable the husband or the wife, as the case may be, who has no independent source of income for his or her support and necessary expense of proceedings under the Act to obtain maintenance expenses pendent lite so that the proceedings may be continued without any hardships on his or her part. The benefits granted under this Section are only temporary in nature and there are other provisions of law where a wife, who is not able to maintain herself, can claim maintenance/permanent alimony from the husband e.g. Section 25 of HMA or under provisions of Hindu Adoption and Maintenance Act. The provisions of this Section are not meant for equivalising the income of wife with that of husband but are meant to see that where divorce or other proceedings are filed, either of the party should not suffer because of paucity of source of income and the Court should pass an order even during the pendency of such a petition, for maintenance and litigation expenses. Where a wife has no income or is without any support for maintaining herself, the Court has to pass an order considering the income and living status of the husband. However, where the wife and her husband both are earning and both are having good salary, merely because there is some salary difference, an order is not required to be passed under Section 24 of HMA."
45. 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:
1. Right to maintenance is an incident of the status from estate of Pankaj Sharma Vs. Renu Sharma 18 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.
2. 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.
3. 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.
4. 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.
5. 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 Pankaj Sharma Vs. Renu Sharma 19 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.
46. 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: "1. It is settled position of law that a wife is entitled to live in a similar Pankaj Sharma Vs. Renu Sharma 20 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).
2. 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.
3. 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.
4. 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 Pankaj Sharma Vs. Renu Sharma 21 precision".
5. 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 Pankaj Sharma Vs. Renu Sharma 22 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.
47. Since both parties to the marriage have appeared to be almost equally placed, though the salary of the petitioner/nonapplicant being on the higher side, his liabilities being greater, which include his widowed mother and unmarried sister, I hold both parties equally liable to maintain the child by sharing his expenses to the extent of 50% each.
48. The school fee card of the child in the present case is showing the fee period of two given months, the fee is Rs.792/ and the parents being teachers, no doubt the child is getting concession due at the school, taking into account of his other general expenses like clothing, excursions and other different extra curricular activities, his books stationary etc. a sum of Rs.5,000/ would be more than adequate to meet his needs and necessities for his all round development.
49. Since the child is in the custody of the respondent/applicant, the petitioner/nonapplicant is directed to pay interim maintenance @ Rs.2500/ for the minor child alone, leaving the remaining 50% to be borne by the respondent/applicant Pankaj Sharma Vs. Renu Sharma 23 herself, the payment being effective from the date of application. The prayer for the interim maintenance for the respondent/applicant is declined. No case made out for litigation expenses.
Applicant disposed off.
(SUJATA KOHLI)
Announced in Open Court ADJ/WEST/DELHI/02.02.2013
today i.e. 02.02.2013
Pankaj Sharma Vs. Renu Sharma