Delhi High Court
Smt. Neelam Molhotra vs Rajinder Malhotra And Others on 6 July, 1993
Equivalent citations: II(1993)DMC547, 1993(26)DRJ46, AIR 1994 DELHI 234, (1994) 1 CIVLJ 755, (1995) 21 MARRILJ 83, (1993) 51 DLT 588, (1994) 1 HINDULR 66, (1993) 2 DMC 547, (1993) 3 RRR 577
Author: D.K. Jain
Bench: D.K. Jain
ORDER
1. In her suit for maintenance, return of stridhan etc, against the husband-defendant No. 1 and his family members, the plaintiff-wife has filed this application under Sections 94 and 151, CPC for grant of interim maintenance and litigation expenses.
2. The plaintiff was married to defendant No. 1 in accordance with Hindu rites on 20 May 1990. Plaintiff alleges that right from the very first day of her marriage, the defendants started ill-treating her as she had failed to bring in the remaining bit of dowry premised at the time of marriage; despite her best efforts, the husband refused to consummate the marriage, till a car, V.C.R., air conditioner etc. was brought by her; she was beaten up in the presence of her relatives, who tried to intervene and sort out the differences between the plaintiff and the defendants and ultimately due to continuous harassment and fear to her life, she was compelled to leave her matrimonial home on 17 August 199, and since then she has been residing with her parents. She claims that defendant No. 1, a practicing chartered accountant, has net income of Rs. 20,000/- p.m. from profession apart from interest and dividend income and lucrative joint family business with monthly income of approximately Rs. 40,000/-. She further alleges that defendant No. 1 owns a car, a number of telephones, flats and is having joint kitchen with other members of the family, the defendants herein, and thus has not to incur any expenditure on food.
3. The plaintiff also claims that she is unemployed; her continued habitation in the parental home even though married, is causing immense distress and depression to her family and she wants to live separately. She needs money to hire a house and make both ends meet. The plaintiff thus claims maintenance in the suit and pendente lite @ Rs. 4,500/- per month.
4. The defendants in their reply filed, resist the grant of any interim maintenance relief on the ground that: (i) in the absence of a specific provision in this behalf such a relief cannot be granted in the present proceedings, in an application under Sections 94 and 151 CPC, (ii) there is no family business of the defendants with which defendant No. 1 has a connection and, therefore, ho maintenance is payable by any of the defendants and (iii) defendant No. 1 does not have sufficient means to pay any maintenance to the plaintiff inasmuch as his net income for the year ending 31 March, 1991 was Rs.24,690/-, Defendant No. 1 has also alleged in the reply that the plaintiff is a qualified nursery teacher and is teaching in a school getting a good salary. Allegations of harassment, cruelty etc. are also denied by the defendants.
5. I have heard learned counsel for the parties.
6. The first question falling for consideration is the objection about the propriety of grant of interim maintenance in the present proceedings, feebly raised in reply to the application but not seriously pressed during the course of arguments on the application.
7. There is no separate provision in the Hindu Adoptions and Maintenance Act, 1956 (for short the Act), for grant of maintenance pendente lite. Section 18 of the Act, under which the case of the plaintiff in essence is based, only provides for maintenance to a Hindu wife, subject however to the two exceptions, carved out in sub-section (3) of Section 18 of the Act, which extinguish the right of a Hindu wife to a separate residence and maintenance. Provisions of sub-section (1) of the said section make it obligatory for the husband to maintain the wife during her life time. Her claim to maintenance is not forfeited even if she resides separately on account of any of the grounds mentioned in sub-section (2) of the said section. In other words, the obligation to maintain the wife would still remain on the husband even though the wife might be living separately from the husband until it is proved that the wife is residing separately from the husband not under any of the circumstances enumerated under sub-section (2) of the said section or is unchaste or has ceased to be a Hindu by conversion to another religion.
8. That being the position in law, when it is imperative for the husband to maintain his wife, it does not stand to any reason that during the pendency of the suit for grant of maintenance, which may take decades to attain finality, the wife in the first instance be forced, to face starvation and then subsequently is granted maintenance from the date of the filing of the suit, if she is fortunate enough to survive till then. I feel that such a view will be against the very intent and spirit of Section 18 of the Act. Even though there is no specific provision in the Act for grant of maintenance pendente lite, the Court is amply empowered to make such orders as may be necessary in the ends of justice. It is a trite proposition of law that a court empowered to grant a substantive relief is competent to award it on interim basis as well, even though there is no express provision in the Statute to grant it. The principle has been recognised by the Supreme Court in Income-tax Officer, Cannanore v. M. K. Mohammed Kunhi, (1969) 71 ITR 815 : (AIR 1969 SC 430). I am of the considered view that power to grant interim maintenance is incidental and ancillary to the substantive relief of maintenance envisaged in Section 18 of the Act and if the ends of justice so warrant the court is competent to grant it in a suit for maintenance. The technical objection of the defendants is thus, unsustainable and is accordingly rejected.
9. In the present case, marriage between the plaintiff and defendant No. 1 is not disputed and the averments made in various paragraphs of the plaint, though denied by the defendants, prima facie tend to indicate that there is a case for a reasonable apprehension in the mind of the plaintiff that it will be harmful and injurious for her to live with defendant No. 1. The plaintiff, I feel, has prima facie shown sufficient facts which entitle her and require that she should be given some amount as interim maintenance.
10. The next question which remains to be considered is as to what should be the amount of interim maintenance particularly when, based on professional accounts of defendant No. 1, it is strenuously urged on his behalf, that he does not have sufficient means to pay any amount to the plaintiff.
11. There can be no precise or settled formulae to assess the quantum of interim maintenance. Each case depends upon its own facts. In Dev Dutt Singh v. Smt. Rajni Gandhi, AIR 1984 Delhi 320, Avadh Behari, J. (as he then was), while considering the question of grant of maintenance pendente lite under Section 24 of the Hindu Marriage Act, 1953 observed that the section is not a code of rigid and inflexible rules, arbitrarily ordained to be blindly obeyed; it does not enact any mathematical formulae; it gives wide power, flexible and elastic to do justice in a given case and leaves everything to the Judge's discretion. Both Section 18 of the Act as also Sections 24 and 25 of the Hindu Marriage Act, deal with grant of maintenance allowance and in the absence of any set procedure for determining maintenance in proceedings under Section 18 of the Act, the aforesaid observations in Dev Dutt Singh's case (supra), in my view, hold good.
12. In the instant case, there is no dispute that the husband is a practicing chartered accountant, having his own office set up under the name and style of M/s. Rajendra Malhotra and Associates and interest in another professional partnership under the name and style of M/s. Atul and Rajendra, besides interest and dividend income; owns a car; has two telephones in his own name; a rented air conditioner in a rented office and a residential flat where he is residing. However, the controvertial issue is whether the moveable and immovable assets belonging to the other defendants could also be taken into consideration for determining the earning capacity and social status of the husband particularly when it is alleged that all the assets acquired by the defendants, including defendant No. 1, are out of the joint family business being run under the name and style of M/s. Laxmi Traders. It is urged by Ms. Geeta Mittal, learned counsel for the plaintiff that coupled with the fact that defendant No. 1 is admittedly having a joint kitchen with other members of the family, the statement of his account in the books of account of the said firm leaves little room for doubt that the business of the said concern is being carried on by the brother of defendant No. 1 for the benefit of the entire family, including defendant No. 1 and, therefore, the income of the said firm should be taken into account not only to determine the social status of defendant No. 1 but also for fixing the quantum of interim maintenance.
13. I find force in the contention of learned counsel for the plaintiff. I have glanced through the accounts of defendant No. 1 in the books of M/s. Laxmi Traders and the documents filed by him along with his counter affidavit dated 15 April, 1993. Without going into greater detail on the veracity, accuracy and effect of these documents, lest it may prejudice the trial either way, I am of the prima facie view that the information reflected in these documents does not inspire confidence. For instance, defendant No. 1 claims that to pay Installments for the residential flat, he is presently occupying, he had to raise various loans from friends and relatives starting from January, 1984 (as per (he information furnished in one of the affidavits) aggregating to Rs. 1,66,272/-, which remain unpaid even up to 31 March 1993 and at the same time, after raising the purported loans, he had been obtaining various fixed deposit receipts in his name which, as on 31 March, 1991, aggregated to Rs. 43,501/-. Interestingly, all the said loans are interest free. Keeping all these facts in view 1 am inclined to think that the particulars of income furnished by defendant No. 1 are not entirely correct. Having regard to the nature of transactions reflected in the statement of account of defendant No. 1 in M/s. Laxmi Traders, I feel that defendant No.1 is intimately connected with the affairs of the said firm and, therefore, for determining his earning capacity and social status, the income of the said firm can be taken into account.
Keeping all these facts and circumstances in view and particularly the fact that in the case of self employed, it is very difficult to dig out the necessary evidence to prove the earning capacity of such person, I have no hesitation in holding that defendant No. 1 has sufficient means to pay maintenance to the plaintiff. I, therefore, feel that it would be just and proper to direct defendant No. 1 to pay Rs. 2000/- per month to the plaintiff as interim maintenance from 1 May, 1993 till the disposal of the suit. I direct accordingly.
14. The monthly payment shall be made on or before 7th of each calendar month. Maintenance for the months of May to July, 1993 shall be payable on or before 15 July, 1993. Eventual sum received in this manner shall be adjusted towards the amount finally determined.
15. All what is observed hereinabove is a prima facie view of the matter for the purpose of disposal of the present application and shall not be construed as expression of opinion on the merits of the main case.
16. The application stands disposed of with no order as to costs.
17. Order accordingly.