Smt. Manju Gupta vs Sh. Sanjay Garg

Manmohan Singh, J.—The petitioner/wife filed a petition u/s 18 of the Hindu Adoption and Maintenance Act, 1956 praying for interim maintenance in favour of the petitioner and against the respondent to pay a sum of Rs. 30,000/- per month to the petitioner w.e.f. 26.5.2004.

Brief facts of the case are that the marriage between petitioner and respondent was solemnized on 29th June, 1997 at Delhi according to Hindu rites and ceremonies. A male child was born from the wedlock on 23rd November, 1999.

Petitioner''s case

It is alleged by the petitioner that at the time of marriage, the parents of the petitioner gave sufficient jewellery, istridhan and other articles to the petitioner including a Maruti Esteem Car. However, even after spending a substantial amount of money in the marriage of the petitioner, the respondent being dissatisfied started taunting and torturing the petitioner. It is further alleged that the petitioner was treated like a maid servant by the respondent and his family members. There have been constant mental as well as physical pain, torture and agony to the petitioner by the respondent and his family members.

On the occasion of "Chhoochak" the petitioner''s parents paid a sum of Rs. 3,00,000/- to the respondent in February, 2000 as demanded by the respondents. The Maruti Esteem Car given on marriage has been sold by the respondent and the money received from it has been lying with him.

On 26.5.2004, the petitioner was turned out of the matrimonial home in wearing apparels after beating her mercilessly. The child was staying with the respondent.

It is submitted that the respondent is a businessman and has been doing the business of readymade garments and tailoring shop under the name and style of M/s. Vdeshi at shop owned by him bearing No. 1/12, Roop Nagar, G.T. Karnal Road, Delhi-1100 06 and has been earning a profit of more than Rs. 1,00,000/- per month from the said business. It is further submitted that the respondent is also having two Cars bearing Regn. No. DL-1CF 1716 and DL 2 CK 3050 and leading a luxurious life. The wife of the respondent is entitled to enjoy the same status as that of the respondent herein being his legally wedded wife. He is also having his own house No. 10 A/33, Shakti Nagar, Delhi-1100 07 and/or is having share in the said house. The petitioner has no source of income and is staying at her parental home at the mercy of her brother and mother. The respondent and his other family members have not returned the jewellery, istridhan and other articles of the petitioner despite the repeated requests of the petitioner.

The petitioner has filed a separate proceedings for return of istridhan against the respondent. The petitioner has also filed a petition for custody of the child against the respondent and the said petition is still pending adjudication.

During the proceeding of the guardianship petition, the petitioner came to know that the respondent has got the child admitted in International Sahaja School, Talnoo, Dharamshala, H.P. and has paid sum of Rs. 79,000/-, Rs. 1,08,000/-, Rs. 15,000/- vide receipt No. 891 dated 30.3.2005, receipt No. 1247 dated 25.3.2006 and receipt No. 1248 dated 25.3.2006 respectively as tuition and other fees to the said school.

The petitioner submits that a bare perusal of the money spent by the respondent in respect of School fee, Tuition fee and other charges, bank deposits and living style of the respondent as aforesaid, makes it clear that the respondent is earning more than Rs. 1,00,000/- per month from the said business of Readymade Garments & Tailoring Shop. The petitioner submits that the respondent has not paid a single penny to the petitioner towards her maintenance w.e.f. 26.05.2004 despite several requests and demands made by the petitioner. In fact, the respondent has neglected and refused to maintain the petitioner in all respect, therefore, the petitioner is entitled to a sum of Rs. 30,000/- (Rupees thirty thousand) per month as her monthly maintenance from the respondent.

Respondent''s case

The respondent has denied all the allegations raised against him by the petitioner. It is submitted by the learned Counsel for the respondent that only a sum of Rs. 2 lac has been spent by the father of the petitioner in her marriage. It is submitted that the respondent or any of his family members never harassed, tortured or humiliated the petitioner in any way. It is stated that the petitioner on her own will left the matrimonial home as she had developed illicit relation with her paramour Guruji @ Parveen Kumar in the month of February, 2004. Even the learned Judge (Guardianship) has not granted any relief to the petitioner after holding several chamber meetings with the child and the parties. The respondent has denied that he is the owner of the shop bearing No. 1/12, Roop Nagar, G.T. Karnal Road, Delhi as the said shop is on rent in the joint name of the Uncle and Brother of the respondent for the last more than 10 years. The respondent has also denied that he has got any Maruti Esteem Car from the petitioner at the time of marriage. The respondent has denied that the petitioner has no source of income and is dependent on her brother for living as she is staying with her paramour Guruji @ Parveen Kumar since 26.5.2004

It is also submitted by the respondent that he is not the owner of the alleged two cars and has annexed the copy of RC''s of both the cars. It is further submitted that the respondent is not the owner or has any share in house No. 10A/33, Shakti Nagar, Delh-1100 07.

It is contended by the respondent that to save his matrimonial relation, a meeting was held on 26th May, 2004 by the mediator Mr. Jagdish Kumar Goel to settle the matter amicably but the petitioner refused to strain the illicit relation with her paramour. Thereafter, on 1st June, 2004 a mutual settlement was arrived between the brother and father of the petitioner, and, brother and uncle of the respondent and the same is signed by them and Mr. Jagdish Kumar Goel (Mediator). The petitioner, however, has denied the abovesaid meeting and also denied that she or any of her parental family members had signed the mutual settlement.

The income tax return of the respondent reflects that his income vary from apprx. Rs. 76,000/- to Rs. 1,45,000/- from the year 2001 to 2006. During the course of arguments, the petitioner has shown the photographs of the air conditioned showroom built on two floors in Roop Nagar Market run by the respondent. Although in para 32 of the written statement, the respondent contended that the respondent is not earning Rs. 1 lac per month from his tailoring work. Similar statement is made in para 24 of the written statement.

The petitioner has relied various judgments in support of her contention. In the case of Rekha Deepak Malhotra Vs. Deepak Jagmohan Malhotra, the Bombay High Court held:

I have considered the various arguments put forward by the learned Counsel for the parties. While deciding application u/s 18 of the Act or maintenance, a number of factors have to be kept in view. This section provides that subject to the provisions of this section, the wife shall be entitled to maintenance during her life time. It is conditional on the wife being able to satisfy one or the other grounds mentioned in Sub-section (2). Section 18(2)(b) provides that a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it would be harmful or injurious to live with her husband. Keeping this provision in mind the facts narrated by the wife have to be prima facie looked into.

In the case of Gaurav Nagpal Vs. Sumedha Nagpal, this Court made the following observations:

...Section 18 of the Act recognises, accepts and gives legal right to a married woman to claim maintenance from her husband subject to the condition that the requirements of the Sections are satisfied. Section 18 itself does not specify the minimum or maximum amount that can be awarded as maintenance to a wife. This is determined by the Courts keeping in mind the social and economic status of the parties, reasonable want and requirements of the wife and income and status of the husband. Maintenance awarded to the wife should be sufficient to enable her to live in somewhat the same degree of comfort as was available in her matrimonial home but it should not be exorbitant and so high that the husband-non-applicant is unable to pay and exposes him to contempt or other coercive proceedings. Lifestyle of the parties during happier times and comparison of the lifestyle of the claimant-applicant after the relationship has soured, has to be taken into consideration to determined just and fair maintenance to be awarded to the wife and what should be paid by the husband. The maintenance awarded has to also take into consideration the income and earnings of the husband-non-applicant.

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The Courts in India while deciding the question of maintenance, interim or final, are conscious of the fact that there is a tendency among parties not to disclose truly, fully and completely, the income earned by them.

In the case of Neelam Malhotra Vs. Rajinder Malhotra and Others, it was held that 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 1984 Del 320; Avadh Behari, J. (as he then was), while considering the question of grant of maintenance pendent lite u/s 24 of the Hindu Marriage Act, 1955 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 u/s 18 of the Act, the aforesaid observations in Dev Dutt Singh''s case (supra), in my view, hold good.

There is no doubt that where the person is self employed, he tends to disclose incorrect income in the income tax return filed by him. There can be no precise or settled formula to assess the income earned by the person who is self-employed in the business. Each case has to be decided on its own facts looking at the living status of the parties. There is no mathematical formula to precisely calculate any accurate amount to be given during pendency of the interim maintenance proceedings. The legislature gives wide and flexible power to the court to decide about the maintenance pendente lite considering the income and other factors like status of living, day to day expenses of the parties etc.

Since in the present case there is no dispute that the wife has no source of income and she is living with her brother and is a non-working woman. Though the respondent has denied that he has any car in his name and has also denied that he is the owner of the shop at Roop Nagar or of the house at Shakti Nagar but it is not in dispute that he is running a shop at Roop Nagar and admitted earning handsome amount from his shop. But this Court can not loose sight of the fact that he travels in car, running a reasonably good business as per bank account and also have good status of living.

On the facts and circumstances mentioned above, I am of the view that the wife should be given at least an amount where she could reasonably maintain a status and mode of life which she used to live with her husband. It is settled law that when there are diverse claims made by the parties, one inflating the income and the other suppressing, an element of guess work is always done in such cases.

In my view, the petitioner is entitled to an amount of Rs. 10,000/- per month as maintenance with effect from March, 2007 i.e. on the date of filing of application till March, 2009. The arrears of maintenance shall be paid by the respondent to the petitioner within two months from today after the adjustment of the amount of Rs. 60,000/- already paid in compliance of the orders passed by this Court. The defendant shall also continue paying future maintenance from April, 2009 by 10th of each month.

Both the applications are disposed of in the above terms.