Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On : January 17, 2017
Judgment Delivered On : January 27, 2017
+ MAT.APP.(F.C.) 42/2016
ASHISH BHARTI ..... Appellant
Represented by : Mr.Rakesh Tiku, Sr Advocate
instructed by Ms.Beenashaw
Soni & Mr.Sandeep Kumar,
Advocates.
versus
MEETA SACHDEV ..... Respondent
Represented by : Mr.Sanjay Poddar, Sr Advocate
instructed by Mr.Ankur
Mahindro & Mr.Govind Kumar,
Advocates.
WITH
+ MAT.APP.(F.C.) 52/2016
MEETA SACHDEV ..... Appellant
Represented by : Mr.Sanjay Poddar, Sr Advocate
instructed by Mr.Ankur
Mahindro & Mr.Govind Kumar,
Advocates.
versus
MAT.APP.(F.C.) Nos.42 & 52 of 2016 Page 1 of 15
ASHISH BHARTI ..... Respondent
Represented by : Mr.Rakesh Tiku, Sr Advocate
instructed by Ms.Beenashaw
Soni & Mr.Sandeep Kumar,
Advocates.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J.
1. Since the husband as also the wife are aggrieved by the order dated
February 20, 2016 disposing of an application filed by the wife under
Section 24 of the Hindu Marriage Act 1955, we shall be referring to the
parties as the husband and the wife.
2. The learned Judge, Family Court has held that the net monthly income
of the husband would be ₹15,04,921/- out of which ₹3,16,812/- per month
on account of equated monthly installments paid by the husband has been
deducted. The wife, who is maintaining two children has been awarded
₹5,86,143/- per month from the date of the application.
3. Succulently put the grievance of the husband would be: (i) while
computing the monthly income of the husband non-recurring payments paid
by the employer or recurring in nature but fluctuating each year such as
shares of the company which were sold by the husband (non-recurring) and
MAT.APP.(F.C.) Nos.42 & 52 of 2016 Page 2 of 15
bonuses (recurring but fluctuating) have been taken into account with
reference to the husband’s statement of account for one year. (ii) The
application under Section 24 of the Hindu Marriage Act was filed by the
wife in November 2012, but admittedly she stayed with the husband at the
matrimonial house in Dubai till July 2015 and during this period the
husband had borne the family expenses. Meaning thereby the maintenance
could not be awarded for the period prior to July 2015. (iii) The conversion
rate has been applied as of the date of the order ignoring that for prior
periods the conversion rate was less. (iv) The learned Judge, Family Court
has acted mechanically in apportioning the income pie overlooking the fact
that the cost of living which the husband has to incur in Dubai is high. (v)
Income of the wife in India has not been properly worked out. (vi) A
presumptive interest income in sum of 1,67,000/- per month has been
`
wrongly added while computing the gross income of the husband. (vii)
Payments being made by the husband for the two flats purchased in Dubai
which are in the joint names of the parties has not been taken into account
while computing the net disposable money in the hands of the husband.
(viii) The learned Judge Family Court has not considered the bank
statements of accounts of the wife, for instance in the year 2014-15 there is
an inflow of about ` 1,00,00,000/- and an outflow of about ` 75,00,000/-.
Large number of such entries numbering 180 in the account of the wife
maintained with the State Bank of India have not been analyzed. Even a
MAT.APP.(F.C.) Nos.42 & 52 of 2016 Page 3 of 15
presumptive analysis thereof would show that apart from interest income the
wife is generating income and unless these entries are explained, it is the
case of the husband that the wife is engaged in some business activity.
4. The grievance of the wife is that the income of the husband which as
per her is AED1,43,48,340.00 per month (more than ₹26,50,000/- per
month). Her grievance is that the learned Judge Family Court has not
properly analyzed the statements of the bank where her husband had
maintained an account for the last four years i.e. 01.01.2012 to 31.12.2015.
5. It is settled law that the award of maintenance pendente lite under
Section 24 of the Hindu Marriage Act 1955 has to be exercised on sound
legal principles.
6. The principles to be followed in granting maintenance are well settled
in 140 (2007) DLT 16 Bharat Hedge v. Saroj Hedge, wherein it is held that:-
“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 of 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.”
MAT.APP.(F.C.) Nos.42 & 52 of 2016 Page 4 of 15
7. At the core of the adjudicatory process would be a determination of
the income of the two spouses, their lifestyle when they were living together
and the entitlement of the children to the same lifestyle.
8. As per the impugned order the learned Judge Family Court has treated
the average monthly income of the husband to be ₹11,46,815/- in the year
2012; ₹11,80,207/- in the year 2013; ₹14,57,855/- in the year 2014 and
₹12,54,947/- in the year 2015 and applying the principle of average has
held that the monthly income for the years 2012 to 2015 would be
12,59,956/-.
`
9. The husband does not dispute having received an amount of AED
2,10,000.00 as one time ex gratia payment from the company and further
sums of AED 6,29,280.00 and AED 94,392.00 from the sale of shares on
March 26, 2012 and April 27, 2014 respectively.
10. Admittedly, the husband had joined the company namely M/s
Redington Gulf, Dubai as Channel Sales Manager. He then rose to the post
of President on July 16, 2013 with effect from April 01, 2013. His
emoluments were enhanced to AED 9,06,000.00 which consisting of fixed
component of AED 4,50,000.00; special allowances of AED 1,80,000.00
both payable in 12 equal installments each and variable component of AED
2,76,000.00 payable half yearly subject to achieving mutually agreed
targets. Further from July 27, 2014 M/s Redington Gulf, Dubai revised the
MAT.APP.(F.C.) Nos.42 & 52 of 2016 Page 5 of 15
emolument package of the husband and he was given AED 10,26,000.00 per
annum consisting of fixed component of AED 4,50,000.00, special
allowance of AED 2,52,000.00 both payable in 12 equal installments and
variable component of AED 3,24,000.00 in half yearly subject to
achievement of mutually agreed targets. The salary slips for the period from
January 01, 2012 to December 13, 2015 issued by the Redington Gulf,
Dubai were filed by the husband.
11. Since special allowances and variable income is fluctuating it was the
duty of the learned Judge Family Court to have examined the husband on
oath regarding the policy of the company where he was working. The
reason being that these variables which are fluctuating have been used as the
measure for future maintenance to be paid by the husband.
12. As regards the grievance of the wife we find that the husband has filed
his statement of account No.10254108401 as maintained with Standard
Chartered Bank; and the statements of accounts bearing
No.02401510018835 and No.02401560329803 (NRE / NRO A/c) as
maintained with HDFC Bank as also the details of credit card bearing
No.4233674000440803. The bank statements of the Standard Chartered
Bank and of HDFC Bank are from January 2012 to December 2015.
13. The wife has pointed out as many 123 entries in these account and
seeks an explanation urging that her husband had been investing money in
MAT.APP.(F.C.) Nos.42 & 52 of 2016 Page 6 of 15
various properties and probably businesses and she highlights these entries
in the accounts to urge huge unexplained inflow and outflow of money;
either as deposit or withdrawal or transfer. We find that the learned Judge
Family Court has referred to the husband’s explanation qua some of the
transactions and we note that AED 6,29,280.00 dated March 26, 2012 is
explained by the husband as a deposit entry for the purchase of 1000
employee share in the Redington International Holdings Limited by
Redington International Mauritius Limited. A withdrawal entry of AED
2,00,000.00 on March 31, 2012 is explained by the husband to be an
amount paid to an agent for sale of some immovable property and links a
deposit entry of AED 1,50,000.00 as refund in cash by the agent and
deposited in the account on April 03, 2012. A withdrawal entry of AED
1,50,000.00 on August 28, 2013 is explained as return of a loan. The
husband explains an entry dated January 21, 2012 of deposit of AED
1,05,000.00 as payment received by him from his friend Arun Mittal, loaned
to Arun Mittal prior to the year 2012. The husband likewise explains a
withdrawal entry of AED 50,000.00 on March 25, 2012 as investment in a
property jointly with his friend Arun Mittal. He explains a withdrawal entry
of AED 30,000.00 on July 29, 2012 as money loaned to a colleague Ashok
Veera Raghavan. He explains a deposit of AED 1,25,000.00 on September
17, 2012 as a loan taken from his friend Arun.
MAT.APP.(F.C.) Nos.42 & 52 of 2016 Page 7 of 15
14. The NRE account No.02401510018835 which husband maintains
with HDFC bank also contain entries of withdrawal of amount or money
transferred, for example an entry of July 03, 2012 when an amount of
₹20,00,000/- was transferred by him to his parents account. There is another
withdrawal of ₹7,19,815/- on November 27, 2012 to his parents account.
There is a deposit entry of ₹23,29,461/- in his HDFC NRE account relating
to receipt of second and final installment of ex gratia payment from his
company. All these entries need an explanation.
15. The NRO account maintained by the husband with HDFC Bank also
shows huge deposits of ₹42,60,715/- on February 24, 2012 which he says
was the maturity amount of fixed deposit he had made in the year 2011.
Further, there is a withdrawal of ₹38,68,000/- on March 19, 2012 which he
relates to opening of fixed deposit account. He also refers to withdrawal of
₹45,60,000/- on April 03, 2012 for making a fixed deposit. Income accruing
on these deposits has to be taken into account after interest on the deposits is
disclosed by the husband.
16. The husband explains onetime income from sale of shares to the tune
of ₹85,00,000/- which were transferred from Dubai and again transfer of
₹27,00,000/- from Dubai viz the receipt of one time ex gratia payment. He
explains the source of funds in his NRO account relates to maturity of some
fixed deposits made by him prior to the year 2012 and also onetime receipt
MAT.APP.(F.C.) Nos.42 & 52 of 2016 Page 8 of 15
on account of share sale. He needs to be examined on this explanation
rendered at the bar during hearing of the appeal.
17. It was the duty of the learned Judge, Family Court to check the
veracity of the entries and the effect of withdrawals and deposits, the loan(s)
husband allegedly advanced either to his friends or to his sister at regular
intervals. The interest and profits earned by him from sale of shares or
properties also needed to be properly identified and figure arrived at.
18. We have illustratively referred to the entries and not dealing with all
120 entries pointed out by the wife to bring home the point that the husband
ought to have been examined on oath to find the correct position and
additionally a proper inference to be drawn with reference to many entries
explained as investments made jointly with friends or loan advanced or
taken from friends. Prima-facie evidence surfaces of husband generating
income from investments made along with friends in other properties and
this explains the further explanation that many entries relate to loans
advanced and loans taken.
19. Admittedly the wife remained in Dubai till July, 2015. She filed the
application under Section 24 in November, 2012. There is a serious dispute
as to whether the husband bore the expenses to run the household when,
notwithstanding the matrimonial dispute between the couple they resided
together in the matrimonial house in Dubai. The learned Judge Family
MAT.APP.(F.C.) Nos.42 & 52 of 2016 Page 9 of 15
Court has completely overlooked this aspect while directing maintenance to
be paid from the date of the application. Surely, if the husband had borne
the family expenses when the couple and children were in Dubai the wife
would not be entitled to any maintenance.
20. Before granting maintenance to wife and children, the learned Judge,
Family Court ought to have assessed the income of the wife too.
Admittedly, she was employed in Emirates, Dubai till January 2016 with
monthly salary equal to ₹3,00,000/-. She also admits to receiving annual
income of ₹8,00,000/- towards interest from fixed deposits per her ITR-I.
21. Though, she had filed the copy of ITR-I showing her total income in
Lacs, but had failed to file any statement of income and computation which
she filed along with her return, to disclose the nature of her income. The
husband moved an application seeking direction for filing such statement of
income and computation and though, the learned Judge, Family Court
ordered on February 15, 2016 that if such statement is not placed on record,
adverse inference may be taken against her, but despite she had chosen not
to file the same and relied upon the ITR-I which showed her interest income
in the year 2014-15 to be ₹8,00,000/- i.e. between ₹70-75 thousands per
month.
22. The husband alleges that if the wife was generating interest income of
₹8,00,000/- per annum, then she definitely had ₹1,00,00,000/- as corpus
MAT.APP.(F.C.) Nos.42 & 52 of 2016 Page 10 of 15
with which she could generate such interest. Her statement of account
maintained with State Bank of India, Delhi reveal 35 entries of deposit made
by her in the year 2013-14 running into Lacs. In the year 2014-15 there is an
inflow of ₹1,00,00,000/- and outflow of ₹75,00,000/- thereby leaving a
balance of ₹25,00,000/- i.e. ₹2,00,000/- per month, which the husband
alleges to be her income, not disclosed by her apart from her interest income
aforesaid. Further, she attempted to conceal the terminal benefit of AED
1,42,296.00 she received from her employer and rather alleged that her
income is limited only to interest earning on FDRs lent by her father to
different entities and individuals. She further alleged that she is not running
any business and the so-called inflow and outflow is nothing but the
amounts received by her from one party and paid to another party for
earning interest. The husband urges the entries in statement do show that
she is engaged in some lending business and had concealed her true nature
of vocation and income therefrom.
23. The learned Judge, Family Court failed to examine even the huge
inflow and outflow of money in her account and neither did he consider this
aspect while computing her income.
24. Regarding expenditure on the children at Dubai the husband has
referred to the entries in his statement of A/c No. 101254108401 as
maintained with Standard Chartered Bank from the period January 01, 2012
MAT.APP.(F.C.) Nos.42 & 52 of 2016 Page 11 of 15
to December 31, 2015 which reveal that he paid the fee for his children till
2015. He claims that an amount of AED 9,500.00 on August 29, 2012;
AED 11,400.00 on September 10, 2012; AED 10,800.00 on December 25,
2012; AED 35,000.00 on February 02, 2013; AED 11,925.00 on September
08, 2013; AED 9802.00 on March 12, 2014; AED 10,000.00 on March 20,
2014; AED 11,900.00 on July 27, 2014; AED 10,700.00 on October 26,
2014 and AED 10,367.00 on February 15, 2015, all were on account of the
school fee paid by him for his children. No effort has been made by the
learned Judge Family Court to even consider these entries.
25. The learned Judge has applied the exchange rate one AED = ₹18.29,
overlooking that the exchange rate for the year 2012 was ₹14.53; for the
year 2013 was ₹15.90; for the year 2014 was ₹ 16.61; for the year 2015 was
₹ 17.45; and for the year 2016 was ₹18.29.
26. Lastly, there appear to be force in the argument of the husband that
the impugned order was passed mechanically by apportionment of income
pie overlooking the cost of living for stay at Dubai. We fail to understand
the basis of assessing the alleged income of the husband in Indian currency
firstly by the conversion rate of the year 2016 and then dividing it into parts
to arrive at the entitlement of the wife and children at ₹9,02,955/- per month
without realising that when the husband was earning in Dirham, he ought to
have being spending for his stay in Dubai in Dirham and the cost of living
MAT.APP.(F.C.) Nos.42 & 52 of 2016 Page 12 of 15
being high there. The basis to arrive at the figure of ₹9,02,955/- per month
is not clear.
27. Thus, it was only on examining both the parties on oath under Order
10 CPC qua the mode of investing huge one time ex gratia payments, the
profits earned from purchase and sale of shares, properties as also on the
huge inflow and outflow of money in their respective accounts, the income
of each of the spouse ought to have been assessed. Once the income of the
husband was determined by applying the required conversion rate, then the
expenses required by the husband as per the cost of living for his stay at
Dubai need to be deducted. Further, then the provision for equated monthly
installments payable per month for the properties they both held jointly at
Dubai need to be made. Then it was the duty of the learned Judge, Family
Court to decide from which date the maintenance ought to have been
payable by the husband to his wife, considering the peculiar facts of this
case and that too after considering the income of the wife, if any.
28. We find the approach of the learned Judge, Family Court being casual
in assessing the income and expenditure of the spouses. Thus, while setting
aside the impugned order we direct the learned Judge, Family Court to
record the statement of parties on oath under Order 10 CPC to examine the
veracity of their claims, allegations and counter-allegations and in the
manner as discussed above to arrive at the amount of monthly maintenance.
MAT.APP.(F.C.) Nos.42 & 52 of 2016 Page 13 of 15
29. The impugned order is thus set aside and the application filed by the
wife under Section 24 of the Hindu Marriage Act, 1955 is restored.
30. A word needs to be spoken at this stage. The application was filed
when the wife was in Dubai. As noted above she came to India in July,
2015 and we find that the discussion on the expenses which the wife would
require in India to maintain a comfortable lifestyle has not been discussed in
the impugned order because there are no pleadings to said effect. The wife
claims to be staying in a rented accommodation, incurring school fee at a
premier school in Noida. She wants money for the extra curriculur activities
of the children. She wants money for a chauffer driven car. She wants
money for house servants on the plea that in Dubai the children were used to
a high-end lifestyle. The learned Judge ought to have computed the
requirements of the wife in India. We therefore request the leanred Judge
Family Court to call for supplementary pleadings from the wife on this
aspect and the response of the husband thereto.
31. But as an interim measure, looking at the status of the parties and the
fact that admittedly the wife is earning at least ₹1,50,000/- per month from
interest income, and there is scope of her further income emerging, we direct
the husband to pay a sum of ₹2,00,000/- as interim maintenance to the wife
with effect from August 01, 2015 which would include maintenance for the
children till application under Section 24 of Hindu Marriage Act is re-
MAT.APP.(F.C.) Nos.42 & 52 of 2016 Page 14 of 15
decided, preferably within 6 months. The amount of maintenance paid shall
be liable to adjustment, per final determination of the application under
Section 24 of Hindu Marriage Act by the learned Judge, Family Court.
Amounts already received by the wife pursuant to interim orders passed in
the appeals shall be adjusted. Ashish Bharti is relieved of the obligation to
furnish any surety as directed vide order dated May 20, 2016.
32. Both the appeals are disposed of.
33. No order as to costs.
(YOGESH KHANNA)
JUDGE
(PRADEEP NANDRAJOG)
JUDGE
JANUARY 27, 2017
VLD/RS
M/
MAT.APP.(F.C.) Nos.42 & 52 of 2016 Page 15 of 15