Smt. Sumedha Bhardwaj vs Shri Jagdeep Bhardwaj

Gita Mittal, J.—This suit has been filed by Smt. Sumedha Bhardwaj u/s 18 of the Hindu Maintenance and Adoption Act, 1956 on the 24th May, 2004. The petitioner has prayed for a decree against the respondent for grant of maintenance for the petitioner at the rate of Rs. 20,000/- per month from the date of filing of the suit; directions to the respondent to provide a house to the respondent and her minor daughter and litigation expenses.

The petition was filed seeking leave to sue as an indigent person on the ground that the petitioner was not possessed of the means to do so. On the 16th of September, 2004, the Joint Registrar had returned a finding that the petitioner is an indigent person and issued notice to the respondent. The respondent had put in appearance in the matter on 14th March, 2005 but had failed to appear thereafter. On the 7th July, 2006, it was noticed that by an order recorded on 16th September, 2004, the petitioner had already been found to be an indigent person and for the reason that the respondent had appeared only once, the Joint Registrar directed summons of the suit and application to be issued to the respondent. The respondent was duly served with the summons for the next date of hearing. In these facts, by an order passed by this Court on 11th September, 2006, the respondent was proceeded ex-parte. The petitioner filed her ex-parte evidence by way of affidavit which remains unrebutted on record. Inasmuch as the parties are reflected as petitioner and respondent in the pleadings, they are so referred herein.

In these circumstances, the facts established by the petitioner on record are noticed hereafter. The petitioner was married to the respondent in accordance with the Hindu rights and ceremonies on 11th November, 1999 at Delhi. The marriage between the parties was an arranged marriage. On 4th December, 2000 from their wedlock they were blessed with a girl child who is named Simran.

According to the petitioner, the respondent and his family was unhappy with the gifts given by the petitioner''s parents for which reasons, the respondent hit her on 13th November, 1999 itself. Amongst other, the respondent and his family were continuously demanding cash and expressed unhappiness with the dowry received by them. The respondent was giving physical beating to the petitioner regularly and was even consuming large quantities of liquor. Respondent was so addicted to alcohol that he would drink even at intervals of one to two hours every day, apart from his dependence on cigarette and other intoxicants. The respondent did not care to maintain the petitioner or the daughter of the parties and consequently the petitioner was dependent on the parents for maintenance and support. At the same time the respondent was indulging in extra-marital relationships with other women while passing comments and criticizing the petitioner''s physical appearance. According to the petitioner, even the kitchen used to be locked up by the respondent''s mother preventing her from eating food of her choice and there were constant demand of cash, luxuries from the respondent who were pressing the petitioner to pressurize the family to give substantial amount. The respondent was also always so drunk and under such a bad condition that he had no interest in marital relations with the petitioner causing distress to her. The petitioner was thrown out of the house in September, 2003 by the respondent and he got aggravated because the petitioner brought up an issue of his sending lurid messages to the petitioner''s aunt and to Simran''s school principal.

On 31st December, 2003, the petitioner was brought back to the matrimonial home by the interventions of cousins and relatives on the promise of the respondent to behave properly. Respondent beat up the petitioner with chappals on 15th February, 2004 and even slapped her. The behavior of the respondent was witnessed by his friend and his uncle who could not help the petitioner. The petitioner was told leave the house. Having no other alternative she was compelled to leave for her maternal aunt''s house as her mother was at that time in Ajmer.

On 18th February, 2004, the petitioner was again manhandled when she went to the matrimonial home to take the school uniform of the child by the respondent who was again in a drunken state.

In these circumstances, since 18th February, 2004, the petitioner is staying with her parents at their Vasant Kunj flat. The petitioner and her daughter had been treated with utmost cruelty and had been abandoned without any reasonable cause. The respondent has refused to maintain or support the petitioner who is not employed and has been compelled to seek an roof and shelter and sustenance from her father.

Urging that she is without any means of livelihood and needs privacy and independent accommodation, the petitioner has filed the present suit seeking maintenance of Rs. 20,000/- per month and a house to live in apart from costs of the present suit.

So far as the prior litigation between the parties is concerned, the petitioner submits that after her marriage, she was residing in house No. 368, Sant Nagar, East of Kailash, New Delhi which is the matrimonial home of the petitioner.

The petitioner had filed a suit being S. No. 177/2004 against the present respondent as also his father Shri Jaswant Rai Bhardwaj, his mother Smt. Shila Rani Bhardwaj, brother Shri Satish Rai Bhardwaj and Sunil Bhardwaj as respondents Nos. 1-5. The suit was filed by the petitioner on behalf of her daughter Simran Bhardwaj and herself. In this case, the respondents pleaded in the written statement that they had not caused hindrance to the ingress and egress of the petitioners to the suit property and that the petitioner had left the matrimonial home on her own volition.

On account of compromise talks initiated between the parties, the petitioners started residing in the matrimonial home with effect from the first Navratra of 2004 with the consent of the respondents. In this view of the matter, the suit was disposed of by the Civil Judge on an application of the petitioner by an order passed on 15th September, 2005 recording that since the relief sought by the petitioners in the suit stood acceded to by the respondents, thus the cause of action for filing the suit ceased to exist and that it would be a futile exercise to pursue the suit any further. This suit was thus disposed of as infructuous.

The petitioners have submitted that after the disposal of this suit, the respondents started harassing the petitioner by making it impossible for her to live in the matrimonial home. The respondent and his family members stopped paying the electricity bill of the ground floor so that the electricity to the ground floor portion of the premises which was the matrimonial home of the petitioner was disconnected. For this reason, the petitioner was again compelled to shift her mother''s house at Vasant kunj, New Delhi where she is residing with her daughter ever since.

Execution Case No. 743/2006 in this behalf is pending before the Civil Judge even at present.

The petitioner also filed a petition on 27th May, 2004 u/s 9 of the Hindu Marriage Act, 1956 (Exhibit PW1/1) seeking restitution of conjugal rights which was registered as HMA No. 195/2004. This petition was decreed in favour of the petitioner by Shri B.K. Khanna, ADJ, Delhi on 11th August, 2006.

The stridhan of the petitioner is still lying the matrimonial home which the petitioner was regularly visiting. On 5th September, 2006, the petitioner went to the matrimonial home to request the respondent and his father to seek restoration of electricity connection or to give a no objection to the petitioner for obtaining a separate connection in her own name. All these requests were turned down and the petitioner was not even permitted to enter the matrimonial home.

The petitioner was thus compelled to file execution case No. 1840/2006 which is also pending before the court of the learned Additional District Judge.

Faced with the situation where the respondent had refused to maintain the petitioner and her daughter, the petitioner filed a petition u/s 20 of the Hindu Adoption and Maintenance Act, 1956 being Simran Bhardwaj v. Jagdeep Bhardwaj seeking a grant of maintenance for her five year school going daughter. This petition was registered initially as Petition No. 2/2004 inasmuch as it was also filed in forma pauperis under Order 33 of Civil Procedure Code. After the court gave permission to the petitioner to sue as an indigent person, the same was registered as Suit No. 359/2004. The present respondent contested the petition negligently. The court initially passed an order of interim maintenance to the tune of Rs. 4500/- which the respondent did not comply with. Finally by an ex-parte judgment and decree dated 29th September, 2006 (Exhibit PW1/2), the court decreed the suit of the petitioner and awarded maintenance of Rs. 5,000/- per month to Ms. Simran Bhardwaj, daughter of the parties which were directed to be paid by the respondent to the petitioner by the 7th of each calender month till the child attains majority.

The petitioner has failed to abide by the decree dated 29th September, 2006 so far as the minor daughter of the parties is concerned as well. Execution Case No. 1841/2006 in this behalf is pending before the learned trial Judge.

In a case for maintenance, it becomes necessary to examine the means and income of the petitioner. Before this Court, the unrebutted fact is that the petitioner is unemployed and is without any independent source of income. It is pointed out that the petitioner and her daughter are totally dependent on the petitioner''s parents. As per the material on record, the petitioner''s parents had invested a sum of Rupees six lakhs in the joint name of the petitioner and the respondent in a post office monthly scheme for meeting the kitchen expenses of the petitioner and her daughter. The passbook of this account is stated to be with the respondent and the petitioner has no access thereto. This monthly income scheme is in the post office Kalkaji is in account No. 3110329.

In the HMA No. 195/2004 which was a petition u/s 9 of the Hindu Marriage Act, 1956, the petitioner filed an application for interim maintenance. In these proceedings, on the 9th July, 2004, the respondent had stated that he had no objection if the monthly accrual of Rs. 4500/- on this post office account is withdrawn by the present petitioner for the education of the child of the parties and making ends meet. Consequently, by an order passed on 9th July, 2004 in HMA No. 195/2004, the learned Addl. Distt. Judge had directed that on a no objection of the present respondent, the Postmaster Kalkaji, may release the payment of the interest accruing in this account to the petitioner Sumedha Bhardwaj till further orders.

The admitted position is that the petitioner is so receiving the amount of Rs. 4500/- per month. This amount is insufficient to enable the petitioner to meet even the complete expenses of the child.

It is well settled that the wife and children from a marriage are entitled to be maintained in the same status and according to the standard of living which they were while residing with the their husband/father.

For this reason, it becomes necessary to examine the evidence which has been lead before this Court with regard to the standard of living enjoyed by the petitioner while co-habiting with the respondent. The petitioner has proved on record as Ex.PW.1/3 the matrimonial advertisement published on behalf of the respondent in the Hindustan Times dated 25th September, 1999 wherein the respondent and his family invited a match for the defendant and represented that he ''own car, house, shops in Kalkaji, Greater Kailash and plans a telecom showroom in GK Market''.

The petitioner has further proved as Ex.PW.1/24, the application form submitted by the respondent in the Delhi Public School for admission of the minor child of the parties wherein he has clearly indicated his profession as ''business (self-employed)''.

The respondent has also indicated that he is a proprietor of this business which is being run under the name and style of ''Namaskar Traders'' at B-41A, Main Road Kalkaji, New Delhi. The respondent has given his residential phone No. as 26489791 and his office phone No. as 51603324. The respondent has also submitted that he is using a mobile phone bearing No. 98730000368. The respondent has indicated that his annual income on this form as Rs. 2.40 lacs.

The petitioner has proved before this Court an order dated 19th April, 2005 on the petitioner''s application seeking interim maintenance, passed in HMA No. 195/2004 being her petition seeking conjugal rights. While deciding this application u/s 24 of the Hindu Marriage Act, 1956, the trial court placed reliance on this admission form and held that as per this document the monthly income of the respondent comes to Rs. 20,000/- based whereon an award of Rs. 10,000/- was made to the petitioner and her daughter.

The learned Judge placed reliance on the pronouncement of this Court in Harminder Kaur Vs. Sukhwinder Singh, to hold that on failure of the husband to disclose his income which was in a special knowledge, the court should presume against him but with some caution and circumspection.

I find that the learned judge in the order dated 19th April, 2005 has completely lost sight of the fact that the husband is admittedly living with his parents and brothers in their property in South Delhi, which is stated to be a multi-storeyed property. The respondent is doing business as a sole proprietor under the name and style of ''Namaskar Traders'' in a property located on the main road of the Kalkaji. He is enjoying his own telephone connections, both at his residence and business premises and also using a mobile phone. As per the matrimonial advertisement which was issued as back as in the year 1999, the respondent even then owned a car and also was proposing to expand his business to the Greater Kailash Market. The matrimonial advertisement showed that he owned a house and shops in Kalkaji and Greater Kailash and plans a telecom showroom.

Therefore, reasonable inference can be drawn that such a businessman who is owning Immovable residential property in South Delhi, as well as several business premises in posh South Delhi Market, would certainly be earning more than only Rs. 20,000/- per month. In this background, while making a declaration on any form which could possibly be used against him or by which statements he would be bound, a businessman understate his income or even not state the full amount. It has repeatedly been held that declarations of income as contained on Income Tax records etc. may not always be a fair index of what is being earned by a businessman. The court would be required to take a comprehensive view in the matter.

The petitioner has asserted that the respondent is also working jointly with his father and relatives and is drawing handsome benefits from the business being conducted by them. There is no evidence to the contrary. The proceedings in the suit No. 177/2004 corroborate this evidence and contention of the petitioner.

The statute recognises the duty of the husband to maintain his wife, children and parents. In the instant case, the parents are not dependent upon the respondent. It is on record that the mother of the respondent has expired. There is no person dependent on the respondent for maintenance other than the petitioner and the daughter of the parties and the respondent himself.

In Smt. Jasbir Kaur Sehgal Vs. District Judge, Dehradun and others, the court held that there was no strait jacket formula for determining the amount of maintenance payable to claimants and that each case would require to be decided on its own facts keeping in view the status and capacity of the parties. The obligation of the husband to maintain his wife and children arises not only in law but even on social and moral grounds. Exceptions apart, it is expected by the parties to the proceedings to place before the court evidence in their power and possession and, in fact, to put in all possible endeavour in accordance with law, in order to ensure that the controversies raised between the parties are decided fully and finally. The court specifically held that wherever there is an attempt on the part of the husband to withhold his correct income and information in regard to his property from the court, the court would draw adverse inference and fix appropriate maintenance. In this behalf, the Apex Court has observed thus:

No set formula can be laid for fixing the amount of maintenance. It has, in the very nature of things, to depend on the facts and circumstances of each case. Some scope for leverage can, however, be always there. The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate. In the circumstances of the present case we fix maintenance pendente lite at the rate of Rs. 5000 per month payable by the respondent-husband to the appellant-wife.

From the manner in which the respondent has contested the proceedings, it is apparent that the respondent has made a concerted effort to withhold his true income and has deliberately concealed material facts which were within his personal knowledge. The respondent has not given the details of various immovable properties ownership whereof is attributed to him by the petitioner in the various proceedings which have been filed by the petitioner either for maintenance or for her daughter. In my view, therefore, the standard of living of the respondent as indicated by the petitioner, provides a fair index of the standard of living and status which the parties enjoyed when cohabiting in the matrimonial home.

It is also to be noticed that the matrimonial advertisement is of the year 1999. The admission form is of the year 2005. The respondent is still in business. Certainly his income would have only increased over the years.

The petitioner has urged that the respondent is earning Rs. 50,000/- from his business with his brother. He is involved in the business of employment/placement and sale and purchase of cars. The advertisement had stated that he was proposing other business as well. Such a figure may not be an exaggerated figure in the light of the admitted and disclosed assets of the petitioner. In any case, from the fact that he is living in a joint family with his parents and brothers, he would be enjoying the fruits of the income of the joint family and the benefit of the income thereof as well. The respondent is living with the joint family and not incurring any expense on rental, food or the necessities.

The evidence of the petitioner that the respondent is owning and having interest in the joint family property which is worth Rs. 1,00,00,000/- is unrebutted. The advertisement (taken out by the respondent in 1999 at the time of marriage of the parties) itself declares that he is owning several properties in South Delhi.

The conduct of the respondent before this Court also speaks volumes. Even in the earlier litigation where it chose to appear and file a written statement or appeared and orally oppose the prayer made by the petitioner, the respondent has filed no proof of his income in the nature of income tax returns etc. which would have enabled the court to arrive at a mere assessment of the income of the respondent.

In this behalf reference can usefully be made to the pronouncement of the Supreme Court in Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others, wherein the court held that a party cannot rely on the abstract doctrine of onus of proof or on the fact that he was not called upon to produce the best evidence which is in his possession. Therefore, upon failure to produce the best evidence which would have thrown light on the issue in controversy, which is in his possession, the court is required to draw an adverse inference against such party even if onus of proof is not on him. This principle was reiterated in National Insurance Co. Ltd., New Delhi Vs. Jugal Kishore and Others,

It is well settled that quantum of maintenance has to be awarded keeping in mind the status of the husband in society and his resources and income also in mind. Ref: I(1984) DMC 301 Shardaben Sitaram Patel v. Patel Ramjibhai Bhagwanbhai.

In a pronouncement of this Court reported at Neelam Malhotra Vs. Rajinder Malhotra and Others, the court observed the issue which was under consideration was as to whether the moveable and Immovable assets belonging to family members other than the husband would be taken into consideration for determining the earning capacity and social status of the husband. In this case the court found substance in the contention of the wife that the income of the family members of the husband was required to be taken into account for determining the husband''s capacity and social status.

In AIR 1987 Delhi 43 Smt. Renu Jain v. Mahavir Prashad Jain, the husband who was living in a joint family and having joint family business suppressed his income by not producing account books, ledgers and similar documents reflecting profits in business and investment in landed property.

In the instant case, it is apparent that the respondent has deliberately not appeared before the court and has concealed all evidence of his real income and assets from this Court. The husband who is living in joint family and doing business with his family members is certainly deriving benefit therefrom.

I have therefore no hesitation in holding that the respondent has deliberately concealed the evidence in his power and possession.

In view of the principles laid down in the Apex Court noticed hereinabove with regard to the onus and burden of proof, adverse inference is liable to be drawn against the respondent and in favour of the petitioner. In the given facts, this Court would be justified in including the business income of the family in order to arrive at an assessment of the petitioner''s income. However, inasmuch as there is no specific material with regard to the same on record, it is not possible to make an assessment thereof.

The respondent has not even appeared before this Court and has not controverted the statement of the petitioner or the material which has been placed by her on record. Consequently, having regard to the resources of the husband and the afore-noticed facts, I have no hesitation in also holding that the income claimed by him in the school application form is not a reflection of his real income. I, therefore, accept the evaluation and assessment of the monthly income of the respondent as Rs. 50,000/- which has been assessed by the petitioner.

It is now necessary to examine the entitlement of the maintenance of the petitioner.

While the maintenance which is to be awarded has to be commensurate with the income and assets of the husband, it certainly has to be such as to enable her to live in reasonable comfort considering her status and the standard of living she was used to while co-habiting with the husband. At the same time, it is well settled that the same cannot be exorbitant, excessive or extortionate. This makes it necessary for this Court to make an assessment as to what would be the entitlement of the wife who has no source of income and has been deserted by her husband. Maintenance and living encompass not only food and apparel but also residence. The other normal expenses which a person may be required to meet would include expenses on medical facility, toiletries, newspapers and journals, transportation, telephone, household help, social obligations, holidays, entertainment etc.

The Apex Court has given an all encompassing definition as to what would constitute maintenance in Mangat Mal (Dead) and Another Vs. Smt. Punni Devi (Dead) and Others, . which reads as follows:

Maintenance, as we see it, necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the matter, more or less, to which she was accustomed. The concept of maintenance must, therefore, include provision for food and clothing and the like and take into account the basic need of a roof over the head. Provision for residence may be made either by giving a lump sum in money, or property in lieu thereof. It may also be made by providing, for the course of the lady''s life, a residence and money for other necessary expenditure. Where provision is made in this manner, by giving a life interest in property for the purposes of residence, that provision is made in lieu of a pre-existing right to maintenance and the Hindu lady acquires for more than the vestige of title which is deemed sufficient to attract Section 14(1).

xxx xxx xxx xxx 21. The Hindu Adoption and Maintenance Act, 1959 was enacted to amend and codify the law relating to adoptions and maintenance among Hindus, and it defines maintenance in Section 3(d) to include "(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment."

(Emphasis supplied)

The scope and ambit of maintenance which would be payable to a wife also fell for consideration before the Apex Court in Kirtikant D. Vadodaria Vs. State of Gujarat and Another, and the court held thus:

We have given serious thought and consideration to the submissions made above by the learned Counsel for the appellant and notice that Dhayalal Hirachand, the husband of Respondent 2 Smt. Manjulaben, h as been found to be a person of sufficient means and income. It is also true that there are 5 natural born sons of Respondent 2 besides 2 daughters, who are all major. It is also a fact that Dalip one of the sons had contested the Municipal Election and two other sons are carrying on various businesses. According to the Law of the Land with regard to maintenance, there is an obligation of the husband to maintain his wife which does not arise by reason of any contract - to maintain his wife which does not arise by reason of any contract - express or implied - but out of jural relationship of husband and wife consequent to the performance of marriage. Such an obligation of the husband to maintain his wife arises irrespective of the fact whether he has or has no property, as it is considered an imperative duty and a solemn obligation of the husband to to maintain his wife. The husband cannot be heard saying that he is unable to maintain due to financial constraints so long as he is capable of earning. Similarly, it is obligatory on the part of a son to maintain his aged father and mother by reason of personal obligation. Under the old Hindu law, this obligation was imposed on the son alone, but now the present-day Hindu law extends this obligation both on sons and daughters. In this connection, it is relevant to point out that according to Sub-section (1) of Section 18 of the Hindu Adoptions and Maintenance Act, 1956, a Hindu is entitled to claim maintenance from her husband so long as she is chaste subject to the conditions laid down in Sub-section (2) of Section 18 of the said Act. Under the present law, as said earlier, both son and daughter are liable to maintain aged or infirm parents including childless stepmother, to maintain his mother irrespective of the fact whether he inherits any property or not from his father, as on the basis of the relationship alone he has given birth to him. Further, according to Section 20 of the Hindu Adoptions and Maintenance Act, 1956, a Hindu is under a legal obligation to maintain his wife, minor sons, unmarried daughters and aged or infirm parents. But the question before us is whether a stepmother can claim words, whether Section 125 of the Code includes within its fold the stepmother also as one of the persons to claim maintenance from her stepson.

In this behalf, reference can usefully be also made to two Division Bench pronouncements reported in Sh. Rajiv Kapoor Vs. Smt. Seema Kapoor and Another, 90 (2001) DLT 312 (D.B.) G.C. Ghosh @ M. Karim Ghazi v. Sushmita Ghose and Single Bench decision reported at Annurita Vohra Vs. Sandeep Vohra, S.S. Bindra Vs. Tarvinder Kaur,

In Rajiv Kapoor Case (Supra), wherein the husband was the appellant, the court had observed thus:

The time has changed. The law has developed and to contend today that the relief for grant of maintenance has to be based on bare need or to meet the ends of food, would be a contention without substance and contrary to legislative intent. Quantum of maintenance must essentially have a bearing and relation to the income of the husband/father, facilities available to him, facilities or perks available to him, standard of living and the social and financial status that he is enjoying. The expression ''matrimonial home'', by very nature of things, would include the facilities, benefits and status involved to such a home. This concept cannot be dissected under two different heads of matrimonial home and the standard of living in the matrimonial home. They would always have to be determined and construed together. The conduct of the husband has not been quite fair in these proceedings. Firstly, he has failed to disclose the true and correct income and there is no whisper in the pleadings of the fact that he has interest in different companies.

xxx xxx xxx Of course, the version of the appellant that he was earning Rs. 4060/- is also equally unbelievable where it cannot be said with some certainty that the income of the husband was Rs. 40,000/- as alleged by the wife. Some kind of guesswork has to be applied by the Court in such cases where one party has failed to discharge the onus placed upon it in proving the income while the other party has withheld the best evidence which was in his power and possession. Thus, in the facts and circumstances of the case, the appellant himself has admitted in his affidavit that he was working with his father earlier at a salary of Rs. 6,000/- per month which itself may not be true reflection of the money that is receiving from the concern of his father and it can reasonably be expected that he was earning more than Rs. 12,000/- to Rs. 13,000/- per month and he must pay at least 60% of his income for the welfare and upbringing of his minor child as maintenance.

So far as the entitlement to right to respond was concerned, the same was considered by the Apex Court in its pronouncement at Mangat Mal (Dead) and Another Vs. Smt. Punni Devi (Dead) and Others, the court held thus:

Maintenance, as we see it, necessarily, must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less, to which she was accustomed. The concept of maintenance must, therefore, include provision for food and clothing and the like and take into account the basic need of a roof over the head. Provision for residence may be made either by giving a lump-sum in money, or property in lieu thereof. It may also be made by providing, tor the course of the lady''s life, a residence and money for other necessary expenditure. Where provision is made in this manner, by giving a life interest in property for the purposes of residence, that provision is made in lieu of a pre-existing right to maintenance and the Hindu lady acquires for more that the vestige of title which is deemed sufficient to attract Section 14(1).

XXX XXX XXX 21. The Hindu Adoption and Maintenance Act, 1959, was enacted to amend and codify the law relating to adoptions and maintenance among Hindus, and it defines maintenance in Section 3(d) to include "(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment."

In S.S. Bindra Vs. Tarvinder Kaur, the court has held that it would be unfair to restrict a prayer for maintenance in mindless manner to what has been made years earlier. Orders should be passed keeping the present in perspective and with a view to bringing about justice between the parties. The court does not grant exactly what is prayed for but shall much less. By that very yardstick, it is not precluded from granting more maintenance if the circumstances called for it.

Again in Annurita Vohra Vs. Sandeep Vohra, the court reiterated that despite orders of maintenance having been passed, however, if a change in the circumstances occurs, the affected party can seek modification of interlocutory orders such as interim maintenance. In this case, the court noticed that with passage of time, as the children start going to school, the financial need of the wife would increase.

The petitioner, as mother of Simran Bhardwaj, daughter of the parties, had filed this petition No. 2/2004 seeking maintenance on her behalf. By a judgment dated 29th September, 2006, the court directed maintenance of Rs. 5,000/- to the minor child.

The petitioner has pointed out that an application filed by her seeking interim maintenance u/s 24 of the Hindu Marriage Act in HMA No. 195/2004 was allowed by an order passed on 19th April, 2005. This application was allowed and maintenance of Rs. 10,000/- per month was fixed. At that time, the consideration before the court was the fact that the petitioner was living with the minor in the matrimonial home. It is noteworthy that the main proceedings having been decreed on 11th August, 2006, this order would ceased to operate. The respondent has not complied with even this order and the petitioner has received only the amount from the accruals on the fixed deposit receipt.

I find that the interim maintenance of the petitioner was fixed at Rs. 10,000/- when she was cohabiting in the ground floor of the matrimonial house with the respondent. However, the position has changed inasmuch as the respondent has forced the petitioner and the minor daughter of the parties out of the house and she has been compelled to beg shelter from her mother. He and his family have prevented the petitioner from enjoying the benefits of the order dated 15th September, 2005 and rendered it impossible for the petitioner to stay therein.

The petitioner is certainly legally entitled to an independent residence without having to depend on her parents for residence and is justified in seeking adequate maintenance which would enable her also to leave a life of dignity and self-respect.

The respondent and his family not only caused the petitioner''s suit to be disposed of but I also find that by a decree dated 11th August, 2006 passed in HMA No. 175/2004, the petitioner''s petition u/s 9 of the Hindu Marriage Act, 1956 has been allowed. The learned Additional District Judge has held that the respondent has withdrawn from the society of the petitioner without reasonable cause and that the respondent shall join the matrimonial home for discharging his conjugal obligation. In this background, the respondent has failed to comply even with this decree.

The petitioner has been compelled to file execution No. 1840/2006 which is pending before the district judge.

The respondent has failed to abide by the decree dated 29th September, 2006 passed in petition No. 2/2004 awarding maintenance of Rs. 5,000/- to the daughter of the parties. He has failed to comply with the order and the decree dated 11th August, 2006 passed in HMA No. 195/2004 whereby the petition of the petitioner seeking restoration of the conjugal rights, was decreed. The petitioner has been constrained to also file an Execution Case No. 743/2006 in respect of the order dated 15th September, 2005 passed by the Civil Court in Suit No. 177/2004.

The conduct of the respondent is also evidenced by his failure to maintain even the minor daughter of the parties. It has come in the evidence of the petitioner that her parents have invested a sum of Rs. 6,00,000/- in the joint names of the petitioner and the respondent in a Post Office Monthly Scheme in account No. 3110329 for meeting the kitchen expenses of the mother and the daughter. The pass book of this account is in possession of the respondent. It is the interest which is accruing on this fixed deposit receipt which is being received by the petitioner towards the education of the child of the parties.

The respondent has not complied with the order dated 19th April, 2005 passed in HMA No. 195/2004 granting the petitioner and daughter interim maintenance of Rs. 10,000/-.

In 90 (2001) DLT 312 (DB) G.C. Ghosh @ Karim Ghazi v. Sushmita Ghosh, the court observed that the husband having created circumstances compelling the wife to leave the matrimonial home, cannot plead that she is not entitled to maintenance or provision for a separate residence for the reason that she has not spent any such amount on maintenance or on separate residence.

In the instant case, the parties were cohabiting in South Delhi, a post area of Delhi. The husband is owning business in prime colonies as Greater Kailash and Kalkaji. Certainly, assuming that the petitioner was rented even in two bed room accommodation in a decent locality close to, if not in the area in which the husband is residing, she would be required to pay rental which could be between Rs. 5,000/- to Rs. 7,500/-. Electricity and water consumed are also payable. Such amount should enable the petitioner to secure residence and privacy for her daughter and herself.

Accordingly, so far as the residence is concerned, it is directed that the respondent shall pay a sum of Rs. 5,000/- per month towards the prayer for residence to the petitioner.

The respondent is enjoying the facility of a mobile phone and his own vehicle. According to the petitioner, he has expensive drinking habits and used to consume expensive liquor and wear branded clothes. The petitioner has deposed that the respondent is spending not less than Rs. 30,000/- per month on himself. The petitioner has made a prayer of Rs. 20,000/- for this purpose. Having regard to the facts established and the award for residence, in my view, an amount of Rs. 15,000/- to meet the other needs including food, social obligations, travel, transportation, medical etc. of the petitioner cannot be considered as excessive.

The child of the parties has been awarded monthly maintenance of Rs. 5,000/- out of which the petitioner is receiving about Rs. 4,500/- per month from the interest on the deposit with the post office.

In view of the above, the claim of the petitioner is decreed for a total amount of Rs. 20,000/- per month towards the maintenance and residence with effect from the date of filing of this case. It is made clear that this amount is exclusive of the amount of Rs. 5,000/- which has been decreed as monthly maintenance towards the child of the parties by the judgment and decree dated 29th September, 2006

The petitioner shall also be entitled to costs of the present proceedings which are assessed at Rs. 55,000/-.