Full Judgment Text
FAO(OS) No.552/2006 Page 1
REPORTABLE
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) NO. 552 OF 2006
th
December, 2007.
% Date of Decision : 7
GAURAV NAGPAL .... Appellant in person.
VERSUS
SUMEDHA NAGPAL .... Respondent.
Through Mr. Rajat Aneja, Advocate.
CORAM:
HON'BLE DR. JUSTICE MUKUNDAKAM SHARMA, CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported
in the Digest ?
SANJIV KHANNA, J:
1. The appellant, Mr. Gaurav Nagpal is husband of
Mrs.Sumedha Nagpal, the respondent. He impugns the Order
th
May, 2006 passed by the learned Single Judge in I.A.
dated 5
No.6848A/2000 in CS(OS) No.1844/2002 granting maintenance
FAO(OS) No.552/2006 Page 2
st
August, 2000 till the disposal of the
of Rs.25,000/- p.m. w.e.f. 1
Suit filed under Section 18 of the Hindu Adoption and
Maintenance Act, 1956 (hereinafter referred to as the Act, for
short).
th
October, 1996 and have a
2. The parties got married on 14
child. Custody of the child is not the subject matter of the present
appeal and the suit out of which the present appeal arises. We
are informed that the question of custody of the child is now
subject matter of an appeal filed by the appellant before the
Supreme Court as the Guardianship Court and the High Court
have decided the said question in favour of the respondent-wife.
3. Though no divorce proceedings are pending between the
parties, it is apparent that there are disputes and differences
between the two of them which has resulted in several litigations
and criminal cases with allegations and counter allegations
against each other. However, the short question before us is the
quantum of interim maintenance which should be awarded and
paid to the respondent by the appellant.
FAO(OS) No.552/2006 Page 3
4. The respondent belongs to a middle class family and is
presently teaching in a school and earning about Rs.10,000/-
p.m. The appellant, on the other hand, claims that he is not
gainfully employed and is entirely dependent upon his family
members. He relies upon his income tax returns. He, however,
admits that the child is studying in G.D. Goenka Public School.
He further admits that he is residing at Sainik Farm and also
owns several immovable properties. It is however stated that the
factum that he owns immovable properties should not be taken
into consideration as he is not earning any regular income from
the said properties.
5. Right to maintenance is an incidence of status from an
estate of matrimony. It has its basis in social conditions in the
United Kingdom where a married woman was economically
dependent upon her husband and was intended to secure justice
to her. 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
FAO(OS) No.552/2006 Page 4
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.
th
6. Learned Single Judge in the impugned Order dated 5
FAO(OS) No.552/2006 Page 5
May, 2006 has referred to the pleadings of the parties and
thereafter satisfied himself whether the Petition under Section 18
of the Act is maintainable and the conditions mentioned in the
said Section are prima facie satisfied. We have also examined
the said Petition and the allegations made therein by the
respondent against the appellant, to justify the claim for
maintenance. We are satisfied that the respondent has been
able to make out a prima facie case on maintainability of the
petition under Section 18 of the Act. A perusal of the averments
made in the said petition indicates that there are allegations of
physical violence, threats to the respondent and her family
members. We are not reproducing the said allegations, least it
causes a prejudice to the appellant. In fact it was the quantum of
interim maintenance fixed by the learned Single Judge which
was seriously contested and argued before us. The fact that the
respondent may be entitled to claim maintenance was not
seriously challenged and questioned before us in this appeal
against the order awarding interim maintenance.
FAO(OS) No.552/2006 Page 6
7. The appellant had relied upon his income-tax returns and
the figures mentioned therein in support of his contention that the
interim maintenance of Rs.25,000/- fixed by the learned Single
Judge is exorbitant and unreasonable. It was also contended
that the income and properties of the HUF of which the appellant
is a member cannot be taken into consideration while computing
interim maintenance. It was urged that the respondent was guilty
of fraud as she had failed to disclose her employment and the
fact that she was earning about Rs.10,000/- per month.
8. 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. This is more so in cases
of self-employed persons or persons employed in unorganized
private sectors where there is lack of transparency and tendency
to conceal income earned for various reasons. It is admitted in
the Government and independent survey reports that
unaccounted form of money and wealth accounts for, or is equal
FAO(OS) No.552/2006 Page 7
to about 20% of the country's Gross Domestic Product. (See,
Report of Indra Gandhi Institute of Development Research-titled
'India Development Report 1999-2000' ). Some other surveys
give a higher percentage.
9. Courts while deciding the matters relating to maintenance
including interim maintenance can take into account social and
economic ills and unethical malpractices prevailing in the society
at the given time. Sections 56 and 57 of the Evidence Act, state
that Courts shall take judicial notice of all matters of public
history, literature, science or art. Recognition of facts without
formal proof is a matter of expediency, and need and wisdom to
recognise and accept facts in public knowledge is
unquestionable. In Onkar Nath versus Delhi Administration
reported in (1977) 2 SCC 6, it is observed that no Court insists
on formal proof, by evidence, of notorious facts of history, past or
present. Judicial notice, in such matters, takes the place of proof
and is of equal force. In fact as a means of establishing
notorious and widely known facts, it is superior to formal means
FAO(OS) No.552/2006 Page 8
of proof.
10. Keeping these aspects in mind learned Single Judge in the
case of Bharat Hegde versus Saroj Hegde (C.M.(M)
No.40/2005) has held that in cases of self-employed persons or
persons employed in unorganized sector, tax compliance is an
exception and tax avoidance is a norm and therefore in each
case the Court has to carefully examine and verify whether or not
the income disclosed by a party is truthful and correct. In
paragraph 19 of this judgment it was observed as under:-
“19. As noted herein above,
unfortunately, nobody pays proper
taxes to the government. Self
employed persons seldom disclose
their true income. Prudence and
worldly wisdom gained by a Judge
before whom citizens of all stratas of
society litigate it can always be used
by a Judge to broadly ascertain as to
what is going on in the society. By no
means, the said knowledge can be
used where the law requires a fact to
be conclusively proved. But where
the law requires a judge to form an
opinion based on a host of primary
data, a Judge can formulate an
opinion pertaining to the likely
FAO(OS) No.552/2006 Page 9
income from the capital asset of the
husband.”
11. In this case the learned Single Judge has culled out eleven
factors that should be taken into consideration for deciding an
application under Section 24 of the Hindu Marriage Act, 1955 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
lifestyle as he/she enjoyed in
the matrimonial home.
6. Non-applicant's liabilities, if
any.
7. Provision for food, clothing,
shelter, education, medical
attendance and treatment 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 sources or
FAO(OS) No.552/2006 Page 10
correct sources are not
disclosed.
10.The non-applicant to defray
the cost of litigation.
11.The amount awarded u/s.
125, Cr.PC is adjustable
against the amount awarded
u/s. 24 of the Act.”
12. The said judgment of the learned Single Judge of this
Court has been followed in the case of Vinod Jolly versus
th
Sunita Jolly (RFA Nos. 122/2007 and 263/2007) decided on 25
May, 2007 reported in 2007 (97) DRJ 205, after holding that
reliance on income-tax returns in the context of business owned
by the appellant would be of no avail.
13. If we examine the pleadings of the parties in the present
case and also the lifestyle of the appellant and the list of
immovable properties owned by him, it is clear that he is a man
of substantial means and is living a comfortable and luxurious
life. The appellant is residing in a house located at Sainik farms,
stated to be owned by his brother and constructed on 3000 sq.
yds of land. The son of the parties is studying in G.D.Goenka
FAO(OS) No.552/2006 Page 11
Public School, one of the most expensive public schools in Delhi
and is also, as per the appellant himself, participating and going
for out-door activities like lawn tennis, swimming, photography,
taekwando, etc. It is also admitted that an expenditure of
Rs.10,000/- per month is being incurred on the child by the
appellant. The appellant's brother has controlling interest and is
managing the affairs of a public limited company which as per
the allegations made in the Petition under Section 18 of the Act
has turnover of about Rs.400 crores. The appellant has admitted
that he has close ties with his brother and mother. This fact can
be inferred from the fact that the Nagpal family has some assets
which are stated to be owned by a Joint Hindu Family, of which
the appellant is a member.
14. The following chart gives details of various properties
which as per the respondent are owned by the appellant and
the reply and contentions raised in rebuttal by the appellant:
FAO(OS) No.552/2006 Page 12
PROPERTIES
AS PER THE RESPONDENT AS PER THE APPELLANT
1. Factory measuring 1000 sq.
yds at 25, MIE Bahadurgarh,
Haryana with machinery worth
Rs. 50 lacs and investment of
Rs.25 lacs as working capital.
1. Ownership of land and
factory is admitted. It is
however denied that machinery
worth Rs.50 lacs and Rs.25
lacs towards working capital as
on 31.03.2007 was made. But
investment made towards
machinery installed and
working capital limit have not
been stated.
2.The appellant was owner of
plot measuring 1.8 acres
situated at Vill. Larsohli, opp.
Motel Kanak Garden near
Sonepat, Haryana which was
sold for Rs.28 lacs after June,
1999.
2.Ownership of land is
admitted. It is however denied
that the land has been sold. It
is claimed that the land being
an agricultural land does not
yield any income.
3. The appellant is owner of 1
acre and 300 sq. yds of land in
Vill. Kamakspur, distt. Sonepat,
Haryana.
3.It is stated that the
agricultural land was owned by
Padmaja Polymers Pvt. Ltd.-a
company belonging to and
owned by the appellant but has
been sold. The appellant has
not given the date of sale and
the consideration received.
4. 6 canals of land in Vill.
Began, Distt. Sonepat,
Haryana.
4. The appellant has stated
that the land is an agricultural
land which yields no income
and belongs to Padmaja
Polymers Pvt. Ltd. a company
belonging to and owned by the
appellant.
FAO(OS) No.552/2006 Page 13
5.Land situated in Lal Dora,
Najafgarh, Nangloi Road,
Delhi.
5. It is admitted that the
appellant owns 100 sq. yds of
land in Lal Dora, Om Vihar,
Delhi. It is stated that the
market value of the land is only
Rs.1 lacs and it does not yield
any income.
6. 300 sq. yds of property No.
B-17, Gujranwala Town, Part II,
Delhi was sold by the joint
Hindu family of which the
appellant is member for
Rs.1.40 lacs in June, 1999.
6. It is stated that the property
consist of 233 sq.yds. and
belonged to Mr. Motilal Nagpal,
HUF and after the demise of
Motilal Nagpal the same
belonged to Smt. Padma
Nagpal, HUF and as HUF has
not been dissolved its financial
affairs are not relevant for the
purpose of the present Petition.
The details of the sale
consideration received have
not been stated.
7. Plot no. 7209, DLF,
Gurgaon, Haryana measuring
250 sq. yds was sold on
16.04.1997 for Rs.33 lakhs but
the sale was under-valued on
paper to avoid payment of
taxes.
7. The plot was jointly owned
by the appellant and his mother
in equal share and was sold for
Rs.25 lacs.
FAO(OS) No.552/2006 Page 14
8. Farm house on plot no.C-
129 (C.1129) Ansal Housing
Pvt. Ltd., Gurgaon valued at
Rs.10 lacs.
8. The plot is jointly owned by
the appellant, his mother and
brother with each having 1/3
rd
undivided share. There is no
income from the said plot and
the value of the said plot is not
more than Rs. 8 lacs. The said
plot has not yet been registered
in the name of the appellant
and others.
9. Flat at Silver Oak Apartment,
DLF, Gurgaon, Haryana which
was sold on 24.05.1997 for
total consideration of Rs.22
lacs.
9. The ownership of the flat is
admitted but it is stated that the
flat was sold for Rs.9 lacs as
the appellant was unable to
pay the instalments in time and
had defaulted in his
commitments.
10. Plot at Tirath Nagar, Karala
Village, Delhi which was sold
for Rs.6 lacs on 26.06.1997.
10. Ownership and sale are
admitted but it is claimed that
the land was agricultural land
and was sold for Rs.1.8 lacs.
FAO(OS) No.552/2006 Page 15
11. Appellant is running
business in the name of M.G.
Polymers, A.K. Investments
and Swastic Holdings and has
control in interest in Padmaja
Irrigation Pvt. Ltd and Padmaja
Polymers Pvt. Ltd.
11.It is admitted that the
appellant is carrying on
business in the name of M.G.
Polymers and A.K.
Investments, being
proprietorship concerns of the
appellant. The appellant also
admits that he has control in
interest in Padmaja Irrigation
Pvt. Ltd. and Padmaja
Polymers Pvt. Ltd but it is
stated that both the companies
have run into losses and have
stopped manufacturing
activities.
15. It is clear from the above that the appellant owns
substantial immovable properties in and around Delhi. The value
of these properties has gone up substantially during the last 3-4
years and have considerable market value. In addition, the
appellant had also sold some properties in the late 1990s, when
again the property prices were reasonably high. The appellant is
a man owing considerable wealth and assets therefore it is
natural to expect that he has a high standard of living and is used
to comforts and luxury. HUF may be a separate assessee under
the Income Tax Act, 1961 but it is not an independent juristic
FAO(OS) No.552/2006 Page 16
person. The appellant has failed to give details of the assets and
income of the HUF of which he is a co-parcenor.
16. Learned counsel for the appellant laid considerable
emphasis on the Order passed by the Income Tax Tribunal for
the Assessment Year 1994-95 deleting addition of Rs.68 lacs out
of the total addition of Rs.70 lacs made by the Assessing Officer.
th
In this regard we may refer to the last part of the Order dated 27
January, 2004 passed by the Income Tax Tribunal which reads
as under :-
“GP (Gross Profit) disclosed
by the assessee is comparable
with other similar processes and
normally no trading addition is
called for. However, in the
present case it is seen that the
assessee had been making
certain payments, which cannot
be properly accounted for. The
expenses on account of transport
have also not been supported by
any bill or receipt and the
genuineness of all the expenses
is doubtful. Keeping in view the
extent of such instances, we
deem an addition of Rs.2 lakhs to
the trading results as reasonable
FAO(OS) No.552/2006 Page 17
(as against Rs.1 lakh sustained
by Commissioner of Income Tax
(Appeals) and Rs.65 lakhs made
by the Assessing Officer.”
17. A reading of the above paragraph proves that the Income
Tax Tribunal was not satisfied about the accounts maintained
and relied upon by the appellant. It was held that some payments
had not been accounted for and certain deductions claimed
could not be supported by corresponding vouchers. The above
findings of the Income Tax Tribunal itself shows that the income
tax returns filed by the appellant cannot be relied upon. Even in
the reply filed to the Petition under Section 18 of the Act, the
appellant has stated in reply to paragraph 14 of the Petition
under Section 18 as under :-
“ She would take out money
from the Respondent's locker and
give it to her parents without the
Respondent's consent. When the
Respondent learned thereabout
and confronted her, she turned
violent.”
18. The above statements made by the appellant on oath is
FAO(OS) No.552/2006 Page 18
an admission that the appellant was in the habit of keeping
money in bank lockers and not in his bank accounts. Thus there
is substantial material and ground to ignore the income disclosed
by the appellant in the income tax returns and assume his
income and earnings on the basis of assets owned by the
appellant and keeping in view his lifestyle. By this guesswork we
can form prima facie opinion about the total quantum of income
that the appellant was/is earning. It can safely be stated that
award of interim maintenance @ Rs.25,000/- p.m. is not
unrealistic and arbitrary.
19. We may note here that the respondent is residing in a
DDA flat along with her parents in west Delhi. It is a small
apartment compared to palatial house in which the appellant is
residing. Keeping these aspects in mind we feel that the interim
maintenance awarded by the learned Single Judge cannot be
regarded as exorbitant and unreasonable. Of course the final
order of maintenance will depend upon the evidence led by the
parties and the opinion expressed in the impugned Order and in
FAO(OS) No.552/2006 Page 19
this Order are merely prima facie opinions and will not be binding
on the court at the time of final decision.
20. We may also note here the objection raised by the
appellant that the respondent is guilty of fraud as she did not
mention about her employment w.e.f. September, 2000 and
salary of about Rs.10,000/- p.m. being earned by her. Similar
contention was also raised before the learned Single Judge and
an application under Section 340, Cr.P.C. was filed on account of
failure of the respondent to disclose the said facts. Learned
Single Judge examined the contentions raised and by an Order
th
November, 2005 had disposed of the said application,
dated 8
inter alia, holding that the factum of income ought to have been
disclosed by the respondent but the respondent had apologised for
the said mistake and had stated that the mistake had occurred as full
facts were not communicated to her lawyer. Therefore, proceedings
against the respondent should be dropped. The said Order
th
November, 2005 in
passed by the learned Single Judge on 8
Criminal Miscellaneous No.172/2002 has been accepted
FAO(OS) No.552/2006 Page 20
by the appellant and has not been made subject matter of any
appeal. In these circumstances this objection raised by the
appellant is rejected.
21. In these circumstances, we do not find any merit in the
present Appeal and the same is accordingly dismissed. No
costs. Dasti.
(SANJIV KHANNA)
JUDGE
(DR. MUKUNDAKAM SHARMA)
CHIEF JUSTICE
DECEMBER 07, 2007.
P