Full Judgment Text
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PETITIONER:
SMT. JASBIR KAUR SEHGAL
Vs.
RESPONDENT:
THE DISTRICT JUDGE DEHRADUN & ORS.
DATE OF JUDGMENT: 27/08/1997
BENCH:
SUJATA V. MANOHAR, D. P. WADHWA
ACT:
HEADNOTE:
JUDGMENT:
Present :
Hon’ble Mrs. Justice Sujata V. Manohar
Hon’ble Mr. Justice D.P. Wadhwa
Ms. Shalu Sharma, Rajesh K. Sharma, Rakesh K. Sharma, Advs.,
for the appellant.
P.P. Tripathi, Arvind Varma, Advs. for K.L. Mehta & Co.,
Advs. for the Respondents.
J U D G M E N T
The following Judgment of the Court was delivered :
J U D G M E N T
D.P. Wadhwa, J.
Leave granted.
This is wife’s appeal against the judgment dated
October 14, 1996 of the High Court of Judicature at
Allahabad. She is aggrieved by the impugned judgment under
which she was awarded maintenance pendente lite under
Section 24 of the Hindu Marriage Act, 1955 (for short ‘the
Act’) at the rate of Rs. 1500/- per month. On an application
filed by the wife in the trial court in proceeding for
divorce initiated by her husband, respondent No.3 herein,
she was awarded Rs. 2,500/- (Rupees two thousand and five
hundred only) as expenses of litigation and maintenance
pendente lite at the rate of Rs. 1000/- per month. Her
revision before the District Judge Dehradun against this
order was dismissed. She further filed writ petition under
Article 227 of the Constitution of India in the High Court.
By the impugned judgment the High Court enhanced the
maintenance to Rs. 1500/- per month.
Respondent 1 and 2 in this appeal are respectively the
District Judge, Dehradun and the Additional Civil Judge
(IInd), Dehradun who are described as proforma respondents.
It is not proper or even justified on the part of the
appellant to implead the courts as respondents and
respondents 1 and 2 are, therefore, struck off from the
record of this appeal.
Parties were married on October 2, 1963. The husband at
that time was an army officer. He retired and Lt. Colonel on
August 10, 1986. On September 28, 1989 he filed the petition
for divorce against his wife under Section 13 of the Act on
the alleged grounds of cruelty and desertion. He stated that
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within two years of the marriage the wife started creating
problem for him and she persisted in her behaviour right
till the year 1989. In this span of 26 years in their
married life, they have become the parents of four children,
two sons and two daughters. Eldest daughter who is 34 years
old and unmarried is living with her mother who maintains
her. Second child is so who is working with Mukul Overseas
Pvt. Ltd. on a monthly salary of Rs. 7500/- per month and is
living in a house in Safdarjung Enclave in New Delhi. Third
child is a daughter aged 26 years. She is also unmarried and
unemployed and is living with the father. Fourth child is a
son of 20 years of age, he is unemployed and had studied
upto 11th class. Husband says that being head of the family
he is to maintain two sons and a daughter as they are
dependent on him. His claim is that he is presently having a
meagre salary of Rs. 5000/- per month and is employed as
consultant/adviser with M/s. Mukul International Private
Limited. Both Mukul Overseas (P) Ltd. and Mukul
International (P) Ltd. belong to same group.
After retirement from the army, respondent-husband
joined the Oil and Natural Gas Commission (ONGC) as a
Director and was posted at Dehradun. He retired from that
post on August 21, 1995. Thereafter from January 1, 1996
husband is working with M/s. Mukul International Pvt. Ltd.
as aforesaid. After deduction of income-tax at source,
husband says he is getting an amount of Rs. 4700/- per
month. Husband admits that he has a house in NOIDA which was
on rent with the army and lease was terminated by letter
dated January 29, 1996 from the Ministry of Defence. He says
repairs are being carried on in the house and presently he
is living with her eldest son in his house. He further says
he is not getting any pension as on his permanent absorption
in ONGC, he had opted to receive lumpsum amount in lieu of
pension and prorata gratuity amount in lieu of pension and
prorata gratuity amounting to Rs. 2,60,456/-. In addition
the husband also received an amount of Rs. 55,775/- on
account of D.C.R. Gty. Husband has also filed his
computation of taxable income for the assessment years 1992-
93, 1995-96 and 1996-97. He has though not filed any
assessment order. Since he retired from ONGC in August, 1995
it would be appropriate to see his computation of taxable
income for the year ending March 31, 1995. His gross salary
income in Rs. 1,88,281/- and after deduction of House Rent
Allowance it comes to Rs. 1,78,614. Income from house
property he say is Rs. 22716/-, interest income is Rs.
3179/-. Total of these three items would be Rs. 2,04,509/-.
Then there are claims of standard deduction, repairs in the
house and tax rebate on saving amounting to Rs. 68,922/-
which include payment on account of LIC, PF, PPF, MEP, NSC
and general insurance. The amount of tax payable comes to
Rs. 35716/- on a taxable income of Rs. 1,81,790/-. For the
assessment year 1996-97 (year ending on March 31, 1996) the
salary income shown is 1,18,151/-, income from house
property is Rs. 18, 930/- and after standard deduction, and
other deduction and the rebate the income tax payable is Rs.
18, 464/- on the net income of Rs. 1,31,200/-.
Wife says that the husband has not given true account
of his assets and income and has rather suppressed the same.
Though the wife has not been able to give any specific
evidence to support her contention but circumstance show
that the husband has not given true state of affairs of his
income. He has pleaded that both his wife and his eldest
daughter are earning Rs. 10,000/- per month but there is no
basis for such an allegation. The fact remains that the wife
has no source of income and she is also maintaining her
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eldest unmarried daughter. Under the Hindu Adoptions &
Maintenance Act, 1956 it is the obligation of a person to
maintain her unmarried daughter if she is unable to
maintain herself. In this case since the wife has no income
of her own, it is the obligation of the husband to maintain
her and her two unmarried daughters one of whom is living
with wife and one with him. Section 24 of the Act no doubt
talks of maintenance of wife during the pendency of the
proceedings but this section, in our view, cannot be read in
isolation and cannot be given restricted meaning to hold
that it is maintenance of the wife alone and no one else.
Since wife is maintaining the eldest unmarried daughter, her
right to claim maintenance would include her own maintenance
and that of her daughter. This fact has to be kept in view
while fixing the maintenance pendente lite for the wife. We
are aware of the provisions of Section 26 of the Act
providing for custody of minor children, their maintenance
and education but that section operates in its own field.
Husband has filed this counter affidavit in the appeal
before us and on our direction both the parties have filed
additional affidavits. On one date when this appeal came up
for hearing we were told that the husband had left that
morning itself for Canada for further treatment after his
bypass surgery in India and that his expenses visiting the
Canada and as well as the expenses for the treatment there
were being met by his friend. In his affidavit husband has
stated that his friend Sontosh Singh for his treatment in
Canada paid his fare. He is, however, silent about the
expense if any met by Sontosh Singh for his treatment in
Canada. A copy of the statutory declaration of Sontosh Singh
which is dated March 21, 1997 has also been filed. In this
Sontosh Singh does say that he has undertaken to bear the
cost of passage and maintenance of respondent during his
stay in Canada and North America. It is a matter of common
knowledge that medical treatment in Canada is high and an
ordinary person cannot afford the expenses which are met by
taking medical insurance. As to what expenses husband
incurred for his bypass surgery in India has not been
disclosed. On our query as to how much foreign exchange
husband obtained while going to Canada, it was stated that
Dollar U.S. 1,350 were obtained at a cost of about Rs.
50,000/-. From where all these monies came from we are left
in dark. Husband had not filed any certificate of his salary
from his present employer though the wife has contended that
both the firms Mukul Overseas Pvt. Ltd and Mukul
International Pvt. Ltd. are owned by the husband himself
which fact husband had denied. Though we are not concerned
with the income of his son which is stated to be Rs. 7,500/-
per month, it would have been better if the husband had
given complete details as to the perquisites enjoyed by his
son, the rent he is paying for his rented accommodation at
Safdarjung Enclave and the like. Claim of the husband that
though his house in NOIDA fell vacant in January, 1996, it
has neither been further let nor the husband himself living
there because of certain repairs and on that account he is
residing with his son does not appeal to us. It does appear
to us from the affidavit of the husband that it conceals
more than what it tells of his income and other assets.
Attempt has been made to conceal his true income and that
leads us to draw an adverse inference against the husband
about his income that it is much more than what is being
disclosed to us. The claim of the husband that from an
income of Rs. 4,750/- per month which is getting from Mukul
International Pvt. Ltd. he has to maintain himself, his two
sons and daughter is absorb particularly when the eldest son
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is earning more than the husband and it is the husband who
is living with him. Husband has also not disclosed retrial
benefits if any from the ONGC and the amount of provident
fund he obtained from there. Husband has interest income
from Unit Trust of India and also from the fixed deposit
receipt but again he has not disclosed the number of units
he is holding and the amount of the fixed deposits in his
name, from all these we have to hold that the annual income
of the respondent-husband is even on modest estimate to be
Rs. 2,40,000/- annually which would come to Rs. 20,000/- per
month. Considering the diverse claims made by the parties
one inflating the income and the other suppressing an
element of conjecture and guess work does enter for arriving
at the income of the husband. It cannot be done by any
mathematical precision.
Wife has no fixed abode of residence She say she is
living in Gurudwara with her eldest daughter for safety. On
the other hand husband has sufficient income and a house to
him. Wife has not claimed and litigation expenses in this
appeal. She is aggrieved only because of the paltry amount
of maintenance fixed by the court. No set formula can be
laid for fixing the amount of maintenance. It has, in very
nature of things, to depend on the facts and circumstance of
each case. Some scope for liverage can, however, be always
there. Court has to consider the status of the parties,
their respective needs, capacity of the husband to pay
having regard to his reasonable expenses for his own
maintenance and those; he is obliged under the law and
statutory but involuntary payments or deductions. 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. 5,000/- per month payable
by respondent-husband to the appellant-wife.
The question then arises as to from which date the wife
would be entitled to claim the enhanced amount of
maintenance pendente lite. If wife has no source of income
it is the obligation of the husband to maintain her and also
children of the marriage on the basis of the provision
contained in the Hindu Adoption and Maintenance Act, 1956.
Her right to claim maintenance fructifies on the date of the
filing of the petition for divorce under the Act. Having
thus fixed the date as the filing of the petition for
divorce it is not always that the court has to grant the
maintenance from that date. The court has discretion in the
matter as to from which date maintenance under Section 24 of
the Act should be granted. The discretion of the court would
depend upon multiple circumstance which are to be kept in
view. These could be the time taken to serve the respondent
in the petition the date of filing of the application under
Section 241 of the Act; conduct of the parties in the
proceedings; averments made in the application and the reply
there to; the tendency of the wife to inflate the income out
of all proportion and that of the husband to suppress the
same; and the like. There has to be honesty of purpose for
both the parties which unfortunately we find lacking in this
case. We are therefore of the opinion that ends of justice
would be met if we direct that maintenance pendente lite as
fixed by this judgment to be payable from the date of
impugned order of the High Court which is October 16, 1996.
We order accordingly. The impugned judgment of the High
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Court shall stand modified to that extent. All arrears of
maintenance shall be paid within a period of two months from
today and then regularly every month.
The appeal is allowed with costs. Counsel fee Rs.
2,500/-.