Seema Tripathi vs Surinder Dhar Diwedi

G.S. Sistani, J.—Present petition is directed against the order dated 7.7.2009 passed by learned Additional District Judge on an application filed by the Petitioner (wife) herein u/s 24 of Hindu Marriage Act, which was dismissed primarily on the ground that Petitioner had concealed vital information from the Court that she was running a beauty parlour in the premises (where she was residing) besides receiving rental income from the first floor and second floor of the same premises bearing No. R-3/86, Newada Housing Complex, Kakrola Mor, Uttam Nagar, Najaf Garh Road, New Delhi.

Learned Counsel for the Petitioner submits that learned trial court has misdirected itself as the Petitioner was neither running a beauty parlour nor she was receiving rent from the tenants, occupying the first floor and second floor of the abovesaid property. Counsel further submits that Respondent is a man of means and the income tax return placed on record of the trial court shows the monthly income of the Respondent to be Rs. 8500/-, per month, cannot be relied upon, as a person earning Rs. 8500/-, per month, cannot purchase two houses, particulars of which have been placed on record and are not denied by the Respondent, and also would not be in a position to maintain a car. Counsel also submits that Petitioner has no source of income and she is solely dependent on her parents for financial support. Counsel next submits that the estimated income of the Respondent is about Rs. 1.00 lakh, per month. Counsel submits that Respondent is a Pandit by profession and makes horoscopes, which fact was admitted by the Respondent before the trial court.

It is next submitted by learned Counsel for the Petitioner that the trial court has misread the complaint dated 20.10.2008 made by Petitioner to CAW Cell, Kirti Nagar, New Delhi. The Petitioner had nowhere stated that Rs. 3000/-, per month, is being received by her towards rent out of the property and what was in fact stated by the Petitioner was that property fetches rent of Rs. 3000/-, per month. Even during the course of hearing, it was submitted by the Petitioner that neither the Petitioner is the owner of the property nor she has inducted anyone as a tenant in the said property.

Learned Counsel for the Petitioner submits that her stand is vindicated as during the pendency of this matter and with a view to ascertain whether the Petitioner was running a beauty parlour or not and also as to whether the aforesaid property was tenanted and as to who was receiving the rent, a Local Commissioner was appointed, who has filed her report, in which, on the basis of information sought from the neighbours, it has been stated that Petitioner is not running any beauty parlour, although, a beauty parlour was being run four or five years back and that too only for a period of two or three months. Another finding has been given by the Local Commissioner that there are no tenants in the said property.

Learned Counsel for the Respondent while refuting the submission made by the counsel for the Petitioner submits that Respondent was thrown out of the house by the Petitioner and he is residing in a katcha structure at J-8, Rajouri Garden, in Uma Maheshwari Mandir, which belongs to Uma Bharti Mission. Counsel further submits that the second property situated at J-7/94, III Floor, Nehru Market, Rajouri Garden, New Delhi, is in the possession of the erstwhile wife and children of the Respondent. However, learned Counsel for the Petitioner submits that there is not a single document, which has been filed by the Respondent to show that Respondent has obtained a divorce from the earlier wife. Counsel for the Respondent also submits that Respondent is facing financial hardship as he had to spend on the marriage of his daughter, who was born out of the first wife.

Learned Counsel for the Respondent submits that income tax return is a reliable piece of evidence, which would show that Petitioner is earning barely Rs. 8500/-, per month, and out of which he is paying Rs. 3000/-, per month, as maintenance to his first wife and has little or no means even to support himself. Counsel further submits that Petitioner had made a complaint to the income tax authorities and upon enquiry a clean chit has been given to the Respondent.

I have heard learned Counsel for the parties and also perused the order dated 7.7.2009 passed by learned trial court. While dismissing the application filed by the Petitioner wife u/s 24 of the Hindu Marriage Act, the learned trial court has primarily relied on the contents of the complaint made by the Petitioner before the CAW Cell and concluded that it is the Petitioner, who was receiving Rs. 3000/-, per month, towards rent out of the said property. I have carefully perused the complaint dated 20.10.2008 addressed to CAW Cell, Kriti Nagar, New Delhi. The complaint does not state that the Petitioner is receiving Rs. 3,000/- per month as rent. It simply states that the property fetches rent of Rs. 3,000/- per month. At best it can be said that the complaint is inappropriately worded. I find force in the submission made by learned Counsel for the Petitioner that in fact the property was capable of fetching Rs. 3000/-, per month, and not that any rent was being received by the Petitioner. Even otherwise the report of the Local Commissioner is absolutely clear that Petitioner is neither receiving any rent nor there are any tenants, nor she is running any beauty parlour in the said property. In the absence of any supporting document to show that, in fact, Petitioner has any independent source of livelihood, the order of the trial court cannot be upheld. I find no force in the submission made by learned Counsel for the Respondent that an income tax return is a reliable document as it has been repeatedly observed that persons in private sector often do not disclose their correct and true income. This case seems to be no different in view of the fact that it is not believable that Respondent would earn only Rs. 8500/-, per month, and in this meager income, he would be in a position to purchase two properties and also be able to maintain a car.

A Single Judge of this Court in the case of Sh. Bharat Hegde Vs. Smt. Saroj Hegde, had culled out following 11 factors, which can be taken into consideration for deciding the application u/s 24 of Hindu Marriage Act, relevant portion of which reads as under:

Unfortunately, in India, parties do not truthfully reveal their income. For self employed persons 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 the 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 application u/s 24 of the 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) Non-applicant''s liabilities, if any.

(7) Provisions for food, clothing, shelter, 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 sources are not disclosed.

(10) The non-applicant to defray the cost of litigation.

(11) The amount awarded u/s 125, Code of Criminal Procedure is adjustable against the amount awarded u/s 24 of the Act?

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. Although there cannot be an extensive list or factors, which are to be considered in guessing the income of the spouses, but the order based on guess work cannot be arbitrary, whimsical or fanciful. While guessing the income of the spouse, when the sources of income are either not disclosed or not correctly disclosed, the Court can take into consideration 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) Credit cards;

(vi) Club Membership;

(vii) Amount of Insurance Premium paid;

(viii) Property or properties purchased;

(ix) Rental income;

(x) Amount spent on travel/ holiday;

(xi) Number of mobile phones;

(xii) Locality of residence;

(xiii) Amount of rent being paid;

(xiv) Qualification of spouse;

(xv) School(s) where the child or children are studying when parties were residing together;

(xvi) Amount spend on fees and other expenses incurred;

(xvii) Amount spend on extra-curricular activities of children when parties were residing together;

(xviii) Facility of driver, cooks and other help; and

(xix) Household facilities.

(xx) Repayment of loan;

(xxi) Capacity to repay loan.

These are some of the factors, which may be considered by any court in guesstimating or having a rough idea or to guess the income of a spouse. It has repeatedly been held by the Courts that one cannot ignore the fact that Indian woman has been given an equal status under Articles 14 and 16 of the Constitution of India and she has a right to live in dignity and according to the status of her husband. In this case, the stand taken by the Respondent with respect to his earning is unbelievable.

In this case, assessment of the income of the Respondent may be made on the basis of three relevant factors. Firstly, the capacity of a person to purchase two properties; secondly, it is presumed that in case the Respondent has to maintain earlier family as well, surely he would have contributed something towards the marriage of his daughter; and thirdly the general status of the Respondent himself, which can be assessed on the basis of the fact that he is maintaining a car. The Petitioner has no source of livelihood, although, admittedly, she is residing in the ground floor of property, which belongs to the Respondent. Thus, in a way Respondent is contributing something towards her stay.

Having regard to the aforesaid facts and taking a rough estimate of the income of the Petitioner and the fact that Respondent is a Pandit by profession and is also making horoscopes, has been able to purchase two properties and maintains a car, which fact is admitted by the Respondent, Respondent is directed to pay maintenance to the Petitioner @ Rs. 7500/-, per month, in addition to providing the ground floor to the Petitioner, where she is already residing. The maintenance shall be paid by the Respondent to the Petitioner from the date of filing of the application. It is further submitted by counsel that Petitioner has no objection if the first floor and the second floor of the aforesaid property is given on rent by the Respondent. Petitioner, who is present in Court, undertakes not to cause any obstruction in this regard.

Learned Counsel for the Respondent seeks six months time to clear all the arrears. The prayer of the Respondent is allowed, subject to the condition that all arrears shall be cleared by the Respondent in six equal installments, to be paid in each month, besides regular maintenance.

Accordingly, petition stands disposed of in view of above.