Denying sex to spouse ground for divorce

Denying sex to spouse ground for divorce - Delhi High Court

 
FAO 185/01                                                                                                                                               Page 1 of 19


IN THE HIGH COURT OF DELHI AT NEW DELHI

        
            Judgment delivered on:    21.03.2012

FAO No.185/2001

Smt. Shashi Bala               ……appellant.
          Through:   Mr. Atul Bandhu, Adv.

 
  Vs.


Shri Rajiv Arora            ……Respondents
          Through:  Mr. R.G. Srivastava, Adv.



CORAM:


HON'BLE MR. JUSTICE KAILASH GAMBHIR

                  
KAILASH GAMBHIR, J. 
1.    By this appeal filed under section 28 of the Hindu Marriage
Act, 1955, the appellant  seeks to challenge the impugned order and
decree dated 12.2.2001 passed by the learned Trial Court whereby a
decree of divorce in favour of the respondent   husband under Section
13(i)(a) of the Hindu Marriage Act was granted  and the counter claim
FAO 185/01                                                                                                                                               Page 2 of 19

filed by the appellant seeking  a  decree  for restitution of conjugal
rights under Section  9 of the Hindu Marriage Act was dismissed.
2.    Brief facts of the case relevant for  deciding the  present
appeal is  that the marriage between  the  parties was  solemnized on
17.2.1991 according to Hindu rites and ceremonies. It was stated by
the husband  in his divorce petition that after the solemnization of the
marriage,  right from the inception,  the attitude of the appellant was
indifferent and she  complained  that the marriage had not been
solemnized with a man of her taste. As per the respondent husband,
the appellant had refused to participate in the traditional ceremony of
dud-mundri  by saying that she did not like all this but without
disclosing any reasons. As per the  respondent, the appellant also did
not take any interest in the dinner which was served on the wedding
night i.e. 18.2.1991. It is also the case of the respondent that when
both of them went to  their bedroom around 11.30 p.m. the appellant
was not responsive and she did not allow the respondent to have
sexual intercourse with her. The respondent has alleged that it is only
on 25.2.1991, that he was allowed to have sexual intercourse with the
appellant for the first time, but again the appellant remained
unresponsive and such conduct of the appellant caused mental cruelty
FAO 185/01                                                                                                                                               Page 3 of 19

to  the respondent. It  is also the case of the  respondent husband that
on 13.4.1991, the  appellant refused to perform “chuda ceremony”
which not only hurt the sentiments of the respondent but his parents
as well. It was also stated that the appellant in fact  removed the
chuda and threw it under the bed by saying that she did not believe in
all these things. It is also the case of the respondent that the appellant
used to visit her parents on her own without even informing the
respondent and finally left the matrimonial home on 16.4.1992 and
since then she did not come back. It is also the case of the respondent
that he had sexual intercourse with the appellant only for about 10-15
times during her stay with  him  for a period of about 5 months. It is
also the case of the respondent that the appellant used to quarrel with
his old parents and she also used to insist to shift to  her  parents’
house at Palam colony.  The respondent  also alleged  that on 11th
March, 1991 the appellant tried to illegally remove the  jewellery from
the almirah which belonged to his mother and which was kept  for his
unmarried sister and  while doing so she was caught red handed. It is
also the case of the respondent that  the appellant  made  a  false
complaint  with the Crime Against Women Cell and  Family Counsel
Office, which complaints were ultimately withdrawn by her. Based on
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these allegations the respondent husband claimed the decree of
divorce under Section 13(1)(ia) of the Hindu Marriage Act.
 3.    In the written statement filed by the  appellant  wife,  she
denied all the  abovesaid allegations leveled by the respondent
husband. She denied that she had refused  to participate  in  the “Dud
Mundari Ceremony”. The appellant had also stated that after taking
lunch on the wedding day, one lady relative of her in-laws and parents
of the respondent remarked that she did not bring bed and sofa sets
in her dowry and in response she informed them that her father had
given a bank draft of Rs. 30,000/-  besides presenting costly clothes,
ornaments, TV, clothes for relatives, utensils and other articles in the
marriage. It is also the defence of the appellant  that on the wedding
night the respondent entered the bedroom showering filthy abuses on
the appellant and told her that she had not brought the dowry
according to their expectations.   It is also her case that she was also
told by the respondent that the bank drafts should have been
prepared either in the name of the respondent or in the name of his
father. It was denied by the appellant that her attitude was indifferent
at the time of dinner. She also denied the allegation of non-
consummation  of the marriage on the wedding night. The appellant
FAO 185/01                                                                                                                                               Page 5 of 19

took a stand that right from  the wedding night i.e. 18.2.1991  the
parties had  normal  physical relationship with each  other.  She also
denied that she did not perform “chuda ceremony” or threw the chuda
under the bed. She also denied that she left the matrimonial home on
16.4.1992. The appellant also took a stand that on 23.4.1992 the
respondent,  his parents and two sisters asked her to bring              
Rs. 50,000/-  or otherwise leave the matrimonial home  and on her
refusal to    meet  the said  demand,    she was thrown out of the
matrimonial home. The appellant denied that she had sexual
relationship with the respondent only 10-15 times or she had refused
to have sex with the respondent.  She also denied that she  never
insisted the respondent to live in the house of her parents. She also
denied that on 11th March, 1991 she made any attempt to  steal the
jewellery or she was caught red handed. She also stated that in the
last week of April, 1991 she was told by the respondent to withdraw
Rs. 30,000/- from her bank account as the old sofa lying in the house
required replacement but no  new  sofa  set was purchased when she
brought  the said money and gave the same to the mother of the
respondent. The appellant also took a stand that she was prepared to
FAO 185/01                                                                                                                                               Page 6 of 19

live with the respondent as  she had withdrawn from her society
without any reasonable cause and without any fault on her part.
4.    Based on the pleadings of the parties,  the learned Trial
Court framed the following issues:-
  (i) Whether the respondent has treated the petitioner with cruelty?
  (ii) Relief.
(iii) Whether the petitioner has withdrawn from the company of the
respondent without any reasonable cause or excuse? If so, its effect.
The  respondent in evidence examined himself as PW2 besides
examining Shri Dalveer Singh, Head Constable as PW1 and Shri
Vishwamitra,  father of the  respondent  as PW  3,   his colleague Shri
Vijay Kumar Taygi PW4. The appellant on the other hand examined
herself as RW1 with no other evidence in support.
5.    After taking into consideration the pleadings of the parties,
the learned Trial Court found that the refusal of the appellant wife to
participate in the  “Dud Mundari  ceremony”  and  thereafter  “Chudha
ceremony”, which  were  customary rituals in the  family of the
respondent husband caused embarrassment and humiliation to  the
respondent  and such acts on the part of the appellant amounted to
cruelty.  The learned Trial Court also found that in the span of one
FAO 185/01                                                                                                                                               Page 7 of 19

year and two months of the married life, the parties had sex only for
about 10-15 times and also denial  of  the appellant  for  sexual
relationship on the very first night of the marriage  is a grave act of
cruelty as healthy sexual relationship is one of the basic ingredients of
a happy marriage. The learned Trial Court also found that filing of the
complaints by the appellant with the Crime Against Women Cell and
Family Counsel Office  also collectively caused mental cruelty to the
respondent husband.   Accordingly, the  learned trial court granted a
decree of divorce  in favour of the  respondent and against  the
appellant  and  consequently also  dismissed her counter claim for
restitution  of conjugal rights.
6.    Mr. Atul Bandhu,  learned  counsel appearing for the
appellant before this court  vehemently argued that the learned Trial
Court did not refer to the evidence of the appellant wife wherein she
has denied all the allegations leveled by the respondent  husband in
his petition for divorce. Counsel also contended that the marriage was
consummated on  the very first night and the appellant wife never
denied sexual relationship to the respondent husband. Counsel also
submitted that nowhere the respondent husband has stated that as to
when  he was  refused any such sexual relationship by the appellant.
FAO 185/01                                                                                                                                               Page 8 of 19

Counsel thus argued that the learned Trial Court has granted the
decree of divorce merely on the ground that the appellant wife did not
participate in the dud-mundari  ceremony and chudha ceremony and
also she did not allow the husband to have sexual intercourse more
than 10-15 times in a period of 5 months and as per the counsel, these
grounds cannot be treated sufficient enough  to constitute cruelty as
envisaged under Section 13(ia) of the Hindu Marriage Act. In support
of his arguments,  counsel for the appellant placed reliance on the
judgment of the Hon’ble Supreme Court in  Savitri  Pandey  vs  Prem
Chandra Pandey AIR2002SC591  and  V.  Bhagat  vs  D.  Bhagat  (Mrs)
(1994) 1 SCC 337.
7.    Mr. R.G. Srivastava,  learned  counsel appearing for the
respondent on the other hand fully supported the reasons given by the
learned Trial Court which entitled  him to claim  a  decree  of divorce
under Section 13(ia) of the Hindu Marriage Act. Counsel for the
respondent  also submitted that the appellant did not respect the
sentiments of the respondent and his family members by refusing to
perform  customary  rituals like dud-mundari  ceremony and chudha
ceremony. Counsel also argued that the appellant did not discharge
her matrimonial obligations either towards her husband or even
FAO 185/01                                                                                                                                               Page 9 of 19

towards  his old parents.  Counsel also submitted that the appellant
made false complaints to the Crime  Against Women Cell and to the
Family Counsel Office, which she later withdrew and such act of the
appellant also caused mental cruelty to the respondent. Counsel also
submitted that by denying normal sexual relationship to the
respondent,  the appellant had shaken and destroyed  the very
foundation of  a sound  marriage. Counsel also submitted that the
respondent had duly discharged his burden  to prove  the case set up
by him where as the appellant failed to discharge her burden and
even could not  prove  her defence. In support of his arguments,
counsel for the respondent placed reliance on  the following
judgments:-
1.  Vinita Saxena vs Pankaj Pandit 2006(3) SCALE (SC) 367.
 2.  Naveen Kohli vs Neelu Kohli 2006(4) SCC 558.
3.  Samar Ghosh vs Jaya Ghosh 2007 (4) SCC 511.
4.  Praveen Mehta vs Inderjit Mehta AIR 2002 SC 2582
5.  Rajinder Bhardwaj vs Anita Sharma AIR 1993 Delhi 135.
 
8.    I have heard learned counsel for  the parties and given my
thoughtful consideration to the arguments advanced by them. 
FAO 185/01                                                                                                                                               Page 10 of 19

9.  Cruelty as a ground for divorce is nowhere defined in the Hindu
Marriage Act as it is not capable of precise definition. There cannot be
any straitjacket formula for determining whether there is cruelty or
not and each case depends on its own  facts and circumstances. What
may be cruelty in one case may not be cruelty in other and the
parameter to judge cruelty as developed through judicial
pronouncements is that when the conduct complained of is such that
it is impossible for the parties to stay with each other without mental
agony, torture and stress. It has to be something much more than the
ordinary wear and tear of married life. The conduct complained of
should be grave and weighty and touch a pitch of severity to satisfy
the conscience of the court that the parties cannot live together with
each other anymore without mental agony, distress and torture. The
main grievance of the respondent herein is the denial of the appellant
to have normal sexual relationship with the respondent. As per the
case of the  respondent, during the short period of 5 months he had
sexual intercourse with the appellant  only 10-15  time while the plea
taken by the appellant is that she had never denied sex to the
respondent. The courts have through various judicial pronouncements
taken a view that sex is the foundation of marriage and marriage
FAO 185/01                                                                                                                                               Page 11 of 19

without sex is an anathema.  The Division Bench of this Court in the
celebrated pronouncement  of  Mrs.  Rita Nijhawan  vs. Mr.Bal
Kishan Nijhawan AIR1973Delhi200 held as under:
“In these days it would be unthinkable proposition to suggest that the wife
is not an active participant in the sexual life and therefore, the sexual
weakness of the husband which denied normal sexual pleasure to the wife is
of no consequence and therefore  cannot amount to cruelty. Marriage
without sex is an anathema. Sex is the foundation of marriage and without
a vigorous and harmonious sexual activity it would be impossible for any
marriage to continue for long. It cannot be denied that the sexual activity in
marriage has an extremely favorable influence on a woman's mind and
body,  the result being that if she does not get proper sexual satisfaction it
will lead to depression and frustration. It has been said that the sexual
relations when happy and harmonious vivifies woman's brain, develops her
character and trebles her vitality. It must be recognised that nothing  is
more fatal to marriage than disappointments in sexual intercourse.”

The learned Trial Court referred to the judgment  of  this court in the
case of  Shankuntla Kumari vs. Om Prakash Ghai
AIR1983Delhi53 wherein it was held that:
 “(25) A normal and healthy sexual relationship is one of the basic
ingredients of a happy and harmonious marriage. If this is not possible due
to ill health on the part of one of the spouses, it may or may not amount to
cruelty depending on the circumstances of the case. But willful denial of
sexual relationship by a spouse when the other spouse is anxious for it,
would amount to mental cruelty, especially when the parties are young and
newly married.”

Hence, it is evident from the aforesaid that willful denial  of sexual
intercourse without reasonable cause would amount to cruelty. In the
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authoritative pronouncement of the Hon’ble Supreme Court in Samar
Ghosh vs Jaya Ghosh (2007)4SCC511, the Hon’ble Supreme Court
took into account the parameters of cruelty as a ground for divorce in
various countries and then laid down illustrations, though not
exhaustive, which would  amount  to cruelty. It would be relevant to
refer to the following para 101 (xii) wherein it was held as under:-
“(xii) Unilateral decision of refusal to have intercourse for considerable
period without there being any physical incapacity or valid reason may
amount to mental cruelty.”

Although  it is difficult to exactly  lay down as to how many times any
healthy couple should have sexual intercourse in a particular period of
time as it is not a mechanical but a mutual act, however, there cannot
be any two ways about the fact  that marriage without sex will   be an
insipid relation.  Frequency of sex cannot be the only  parameter to
assess the success or failure of a marriage  as it differs from couple to
couple as to how much importance they attach to sexual relation vis a
vis emotional relation. There may be cases where one partner to the
marriage may be over sexual and the other partner may not have
desire to  the same level, but otherwise is fully potent. Marriage is an
institution through which a  man  and  a woman enter  into a  sacred
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bond  and  to state that sexual relationship is the mainstay or the
motive to be achieved through marriage would be making a mockery
of this pious  institution. By getting married, a couple agrees to share
their lives together with all its moments of joy, happiness and sorrow
and the  sexual relationship  between them  brings them close and
intimate by which their marital bond is reinforced and fortified. There
may not be sexual compatibility of a couple right from inception of the
relationship and depending upon  physical,  emotional,  psychological
and social factors, the compatibility between  some  couples  may be
there  from the beginning  and amongst some  may come later. 
Undoubtedly, a normal and healthy couple should indulge into regular
sexual relationship but there may be exceptions to this and what may
be normal for some may not be normal for others as it would depend
upon various factors such nature  of job, stress  levels, social  and
educational  background,  mood patterns, physical well being  etc.
Indisputably, there has to be a healthy sexual relationship between a
normal couple, but what is normal cannot be put down in black and
white.
10.    Adverting  back to the facts of the present case,  the
marriage between the parties was solemnized on 17.2.1991 and
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according to the  appellant  she was forced to leave the matrimonial
house on 16.4.1992, whereas  as per the respondent husband, the
appellant wife practically stayed at the matrimonial home only for a
period of five months as for rest of the period she stayed at her
parental house. The case of the respondent is that he had sex with the
appellant only for about 10-15 times in a span of  five  months of
married life  and  that he was denied sexual relationship on the very
first night of their marriage and denial of sex  at the wedding night
caused great mental cruelty  to him.    The respondent husband also
stated that he was allowed to have sexual intercourse by the appellant
for the first time only on 25.2.1991.The appellant wife has denied the
said allegations of the respondent husband and in defence stated that
she was having normal sexual relationship with her husband and even
had sexual intercourse on the wedding night.  The learned Trial Court
after analyzing the evidence adduced by both the parties found the
version of the appellant untrustworthy and unreliable while that of the
respondent, much more credible and trustworthy. The appellant on
one hand took a stand that on 18.2.1991 the atmosphere on that night
was very tense so much so that, both the parties could not sleep and
speak to each other and she did not even take proper  food and  the
FAO 185/01                                                                                                                                               Page 15 of 19

whole night  there was  tension between the parties  and  the
atmosphere was fully charged, but at the same time in the cross-
examination of PW2 the suggestion was made by counsel that the
appellant touched the feet of the respondent when he entered the
room on the said wedding night and she also admitted that her
husband  had  never  taken  liquor  in her presence and he had  never
come to her in drunken state. It would be appropriate to reproduce
para 55 of the Trial Court judgment to bring to  surface  the said
contradiction on the part of the appellant.
  “55.From the evidence on record, it is gathered that on the
wedding night  i.e. on 18.2.91 a  “Dud Mundari” ceremony was  to
be performed but the respondent wife refused to participate in the
same.  This version of PW 2 has been fully corroborated by his
father PW 3. The husband i.e. Rajiv Arora, had entered by both
PW 2 and RW1.  RW 1 in her cross-examination has stated that
their marriage had been consummated on that very night and her
husband had come to her and she did not have to persuade the
petitioner.  On the other hand the petitioner has stated that their
marriage could not be consummated on their wedding night and
he had sex with his wife for the first time only on 25.2.91.  RW1 in
her cross-examination has stated that the atmosphere that night
was very tense and both the parties could not sleep and they did
not speak to each other and her husband had grievance about the
insufficient dowry which had been given in the marriage .  RW 1
has also admitted that on 18.2.91, she did not take proper food as
she was not feeling well.  This version of RW1 that she did not
take food that night is corroborated by the version of PW1 who
has stated that on the wedding night at the time when the dinner
was served the attitude of the respondent was indifferent and she
did not take any dinner but she took only a little sweet.”
  
FAO 185/01                                                                                                                                               Page 16 of 19

11.    In matrimonial cases, more often than not it is a
challenging task to ascertain as to which party is telling truth as
usually it is the oral evidence of one party against the oral evidence of
the other. What happens in the four walls of the matrimonial home
and what goes on inside the bed room of the couple is either known to
the couple themselves or  at the most  to the members of the family,
who are either residing there or in whose presence any incident takes
place. Whether the couple has had sex and how many times or have
had not had sex and what are the reasons; whether it is due to the
denial or refusal on the part of the wife or of the husband can only be
established through the creditworthiness of the testimonies  of the
parties themselves. Consequently, the absence of proper rebuttal or
failure of not putting one’s case forward would certainly lead to
acceptance of testimony of that witness whose deposition remains
unchallenged.  In the present case, the testimony of the respondent
that the appellant was never  responsive and was like a dead wood
when he had sexual  intercourse with her remained unrebutted. It is
not thus  that the respondent had sex with her wife only about 10-15
times from the date of his marriage within a period of five months, but
the cruel act of the appellant of denying sex to the respondent
FAO 185/01                                                                                                                                               Page 17 of 19

especially on the very first night and then not to actively participate in
the sex even for the said limited period for which no  contrary
suggestion was given by the appellant to the respondent in his cross-
examination. The respondent has also successfully proved on record
that the appellant did not participate  in the customary rituals of dud
mundri and that of chudha ceremony, which  caused  grave mental
cruelty  to the respondent.  It is a matter of common knowledge that
after the marriage,  certain customary rituals are performed and the
purpose of these rituals is to cement the bond of marriage. The
question whether there was a refusal on the part of the respondent
not to perform the ritual of dud-mundari and chudha ceremony is
difficult to be answered as on one hand, the appellant has alleged that
she had duly participated in the ceremonies while on the other hand
the respondent has taken a stand that there was refusal on the part of
the appellant to participate in the ceremonies. No doubt the testimony
of the respondent has been supported by the evidence of his father
and there is no corroborative evidence from the side of the appellant,
although her brother had accompanied her in doli  and in such
backdrop, adverse inference thus has to be drawn against the
appellant for not producing her brother in evidence who could be the
FAO 185/01                                                                                                                                               Page 18 of 19

best witness to prove the defence of the appellant alleging her
participation in the dud-mundari ceremony.  Undeniably,  these
customary ceremonies are part of the marriage ceremony and refusal
of the same that too in the presence of the family members of the
husband would be an act of cruelty on the part of the wife.  The
appellant has also failed  to prove any demand of dowry made by the
respondent or his family members as no evidence to this effect was
led by the  appellant.  The appellant herein also filed criminal
complaints against the respondent and his family members and later
withdrew the same.  Undoubtedly,  it is the right of the victim to
approach the police and CAW cell to complain the conduct of the
offending spouse, however, frivolous and vexatious complaints like in
the present case led  to cause mental torture and harassment to the
respondent and his family members.  Thus, taking into account the
conduct of the appellant in totality, this court is of the view that the
same amounts to causing mental cruelty to the respondent.
12.    Before parting with the judgment, this court would like to
observe that the sex starved marriages are becoming an undeniable
epidemic as the urban  living  conditions  today  mount an
unprecedented pressure on couples. The sanctity of sexual
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relationship and its role in reinvigorating the bond of marriage is
getting diluted  and  as a  consequence  more and more couples are
seeking divorce due to sexual incompatibility and absence of sexual
satisfaction. As already stated above,  to quantify as to  how many
times a healthy couple  should have sexual  intercourse is not for this
court to say  as some couples can feel wholly inadequate and others
just fine without enough sex. “That the twain shall become one flesh,
so that they are no more twain but one”  is the real purpose of
marriage and sexual intercourse is a means, and an integral one of
achieving this oneness in marriage.
13.    This Court therefore, does not find any kind of illegality or
perversity in the findings given by the learned Trial Court  in the
impugned judgment dated 12.2.2001 and the same is accordingly
upheld. The  present appeal filed by the appellant is devoid of any
merits and the same is hereby dismissed.
  
                 KAILASH GAMBHIR, J
21.03. 2012




http://lobis.nic.in/dhc/KG/judgement/24-03-2012/KG21032012FAO1852001.pdf

Delhi High Court - s125 Crpc - Affidavit from both parties for income ,personal details ,expediture of self and family members -Puneet Kaur vs Inderjit Singh Sawhney on 12 September, 2011

Delhi High Court - s125 Crpc - Affidavit from both parties for income ,personal details ,expediture of self and family members -Puneet Kaur vs Inderjit Singh Sawhney on 12 September, 2011  

CM(M) No.79/2011              Page 1 of 12

4
*  IN THE HIGH COURT OF DELHI AT NEW DELHI

+   CM(M) 79/2011

%                    Date of decision: 12th
 September, 2011


  PUNEET KAUR                              ..... Petitioner
        Through :  Mr. Ashok Chhabra with
Mr. Sunjayjyoti Singh Paul,
Advs.
      versus

  INDERJIT SINGH SAWHNEY               ..... Respondent
        Through :  Respondent in person.

CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA
 
1.  Whether Reporters of Local papers may     YES
be allowed to see the Judgment?

2.  To be referred to the Reporter or not?    YES

3.  Whether the judgment should be       YES
  reported in the Digest?

JUDGMENT (ORAL)

CM(M)No.79/2011 and CM No.1756/2011
1.   The petitioner has challenged the order dated 26th

November, 2010 whereby her application  for maintenance
under Section 24 of the Hindu Marriage Act was dismissed by
the learned Trial Court. 
2.  The petitioner  claimed  maintenance and litigation
expenses from her husband on the ground that she was unable
to maintain herself and her two children aged 13 and 16 years.  CM(M) No.79/2011              Page 2 of 12

The  petitioner averred that she was not gainfully employed
and was receiving interest income of about  `8,000/-  to
`10,000/-  per month from the investments whereas the
monthly expenses of the children were to the tune of `25,000/-
per month.  The petitioner further averred that the respondent
was running the business of transport in the name of Bakshi
Transport Service and his income was more than `2,00,000/- to
`3,00,000/- per month. 
3.  The respondent contested the above application before
the learned Trial Court on the ground that the respondent was
unemployed and had no income.  The respondent averred that
he was living like a pauper and had no money even for two
proper meals a day.  He also stated that he had no shelter.
The respondent also alleged that the petitioner’s annual
income was `3,00,000/- per month from three sources, namely
`1,00,000/-  to `2,00,000/- per month from business, `60,000/-
per month from salary and `20,000/- per month from interest. 
4.  The learned Trial Court believed the respondent and held
that there was no material record to show that the respondent
had any income and, therefore, the petitioner’s application was
dismissed. CM(M) No.79/2011              Page 3 of 12

5.  In Bharat Hegde v. Saroj Hegde, 140 (2007) DLT 16,
this  Court  laid down the following principles  for fixing the
maintenance under Section 24 of the Hindu Marriage Act:-
“4. Right to maintenance is an incident of the
status from an estate of matrimony. Interim
maintenance has an element of alimony, which
expression in its strict sense means allowance
due to wife from husband on separation. It has
its basis in social conditions in United Kingdoms
under which a married woman was economically
dependent and almost in a position of tutelage to
the husband and was intended to secure justice
to her.
5. Section 24 of the Hindu Marriage Act goes a
step further inasmuch as it permits maintenance
to be claimed by the husband even against the
wife.
6. 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.
7. Maintenance awarded cannot be punitive. It
should aid the applicant to live in a similar life
style she/he enjoyed in the matrimonial home. It
should not expose the non applicant to unjust
contempt or other coercive proceedings. On the
other hand, maintenance should not be so low so
as to make the order meaningless. CM(M) No.79/2011              Page 4 of 12

8. Unfortunately, in India, parties do not
truthfully reveal their income. For self
employed persons  or persons employed in
the unorganized sector, truthful income
never surfaces. Tax avoidance is the norm.
Tax compliance is the exception in this
country. Therefore, in determining interim
maintenance, there cannot be
mathematical exactitude. The court has  to
take a general view. From the various
judicial precedents, the under noted 11
factors can be culled out, which are to be
taken into consideration while deciding an
application under Section 24  of the Hindu
Marriage Act. 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 life style as he/she enjoyed
in the matrimonial home.
6. Non-applicant's liabilities, if any.
7. Provisions for food, clothing, shelter,
education, medical attendance and
treatment etc. 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 the sources or correct sources are
not disclosed.
10. The non applicant to defray the cost of
litigation.
11. The amount awarded  under
Section 125 Cr.PC is adjustable against the
amount awarded  under  Section 24 of the
Act.”

(Emphasis Supplied)
 CM(M) No.79/2011              Page 5 of 12

6. In Jayant Bhargava v. Priya Bhargava, 181 (2011) DLT
602,  this  Court  laid down the factors  to be taken into
consideration for ascertaining  the income of the spouse.  The
relevant portion of the judgment is reproduced hereunder:-
“12. It is settled  position of law that a wife is
entitled to live in a similar status as was enjoyed
by her in her matrimonial home. It is the duty of
the courts to ensure that it should not be a case
that  one spouse lives in a life of comfort and
luxury while the other spouse lives a life of
deprivation, poverty. During the pendency of
divorce proceedings the parties should be able to
maintain themselves and should be sufficiently
entitled to be represented in judicial
proceedings. If in case the party is unable to do
so on account of insufficient income, the other
spouse shall be liable to pay the same. (See
Jasbir Kaur Sehgal (Smt.) v. District Judge,
Dehradun and Ors.,  reported at V (1998) SLT
551, III (1997) CLT 398 (SC), II (1997) DMC 338
(SC) and (1997) 7 SCC 7).
13.  A Single Judge of this Court in the case of
Bharat Hegde v. Saroj Hegde, reported at 140
(2007) DLT 16 has culled out 11 factors, which
can be taken into consideration  for deciding the
application under Section 24 of Hindu Marriage
Act.
14. Further it has been noticed by the Courts
that the tendency of the spouses in proceedings
for maintenance is to not truthfully disclose their
true income. However, in such cases some guess
work on the part of Court is permissible.
15. The Supreme Court of India in the case of
Jasbir Kaur (Smt.)  (supra), has also recognized
the fact that spouses in the proceedings for
maintenance do not truthfully disclose their true
income and therefore some guess work on the
part of the Court is permissible. Further the CM(M) No.79/2011              Page 6 of 12

Supreme Court has also observed that
“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”.
16. Although there cannot be an exhaustive list
of factors, which are to be considered in
guessing the income of the spouses, but the
order based on guess work cannot be arbitrary,
whimsical or fanciful. While guessing the income
of the spouse, when the sources of income are
either not disclosed or not correctly disclosed,
the Court can take into consideration amongst
others the following factors:
(i) Life style of the spouse;
(ii) The amount spent at the time of
marriage and the manner in which
marriage was performed;
(iii) Destination of honeymoon;
(iv) Ownership of motor vehicles;
(v) Household facilities;
(vi) Facility of driver, cook and other help;
(vii) Credit cards;
(viii) Bank account details;
(ix) Club Membership;
(x) Amount of Insurance Premium paid;
(xi) Property or properties purchased;
(xii) Rental income;
(xiii) Amount of rent paid;
(xiv) Amount spent on travel/ holiday;
(xv) Locality of residence;
(xvi) Number of mobile phones;
(xvii) Qualification of spouse;
(xviii) School(s) where the child or children
are studying when parties were residing
together;
(xix) Amount spent on fees and other
expenses incurred;
(xx) Amount spend on extra-curricular
activities of children when parties were
residing together; CM(M) No.79/2011              Page 7 of 12

(xxi) Capacity to repay loan.
17. These are some of the factors, which may be
considered by any court in guesstimating or
having a rough idea or to guess the income of a
spouse. It has repeatedly been held by the
Courts that one cannot ignore the fact that an
Indian woman has been given an equal status
under Articles 14 and 16 of the Constitution of
India and she has a right to live in dignity and
according to the status of her husband. In this
case, the stand taken by the Respondent with
respect to his earning is unbelievable.”
7.  In the facts and circumstances of this case, both the
parties are directed to file their respective affidavits of assets,
income and expenditure from the date of the marriage up to
this date containing the following particulars:-
7.1  Personal Information
(i)  Educational qualifications.
(ii)  Professional qualifications.
(iii)  Present occupation.
(iv)  Particulars of past occupation.
(v)  Members of the family.
(a)  Dependent.
(b)  Independent.

7.2  Income

(i)  Salary, if in service.
(ii)  Income from business/profession, if self employed.
(iii)  Particulars of all earnings since marriage.
(iv)  Income from other sources:-
(a)  Rent.
(b)  Interest on bank deposits and FDRs.
(c)  Other interest i.e. on loan, deposits, NSC, IVP,  KVP,
Post Office schemes, PPF etc.
(d)  Dividends.
(e)  Income from machinery, plant or furniture let on
hire. CM(M) No.79/2011              Page 8 of 12

(f)  Gifts and Donations.
(g)  Profit on sale of movable/immovable assets.
(h)  Any other income not covered above .

7.3  Assets

(i)  Immovable properties:-
(a)  Building in the name of self and its Fair Market
Value (FMV):-
  Residential.
  Commercial.
  Mortgage.
  Given on rent.
  Others.
(b)  Plot/land.
(c)  Leasehold property.
(d)  Intangible property e.g. patents, trademark, design,
goodwill.
(e)  Properties in the name of family members/HUF and
  their FMV.
(ii)  Movable properties:-
(a)  Furniture and fixtures.
(b)  Plant and Machinery.
(c)  Livestock.
(d)  Vehicles i.e. car, scooter along with their brand and
registration number.
(iii)  Investments:-
(a)  Bank Accounts – Current or Savings.
(b)  Demat Accounts.
(c)  Cash.
(d)  FDRs, NSC, IVP,  KVP, Post Office schemes, PPF etc.
(e)  Stocks, shares, debentures, bonds, units and mutual
funds.
(f)  LIC policy.
(g)  Deposits with Government and Non-Government
entities.
(h)  Loan given to friends, relatives and others.
(i)  Telephone, mobile phone and their numbers.
(j)  TV, Fridge, Air Conditioner, etc.
(k)  Other household appliances.
(l)  Computer, Laptop.
(m)  Other electronic gadgets including I-pad etc.
(n)  Gold, silver and diamond Jewellery.
(o)  Silver Utensils.
(p)  Capital in partnership firm, sole proprietorship firm. CM(M) No.79/2011              Page 9 of 12

(q)  Shares in the Company in which Director.
(r)  Undivided share in HUF property.
(s)  Booking of any plot, flat, membership in Co-op.
Group Housing Society.
(t)  Other investments not covered by above items.
(iv)  Any other assets not covered above.

7.4  Liabilities

(i)  OD, CC, Term Loan from bank and other institutions.
(ii)  Personal/business loan
(a)  Secured.
(b)  Unsecured.
(iii)  Home loan.
(iv)  Income Tax, Wealth Tax and Property Tax.

7.5  Expenditure

(i)  Rent and maintenance including electricity, water and
gas.
(ii)  Lease rental, if any asset taken on hire.
(iii)  Installment of any house loan, car loan, personal loan,
business loan, etc.
(iv)  Interest to bank or others.
(v)  Education of children including tuition fee.
(vi)  Conveyance including fuel, repair and maintenance of
vehicle.  Also give the average distance travelled every
day.
(vii)  Premium of LIC, Medi-claim, house and vehicle policy.
(viii)  Premium of ULIP, Mutual Fund.
(ix)  Contribution to PPF, EPF, approved superannuation fund.
(x)  Mobile/landline phone bills.
(xi)  Club  subscription and  usage,  subscription to news
papers, periodicals, magazines, etc.
(xii)  Internet charges/cable charges.
(xiii)  Household expenses including kitchen, clothing, etc.
(xiv)  Salary of servants, gardener, watchmen, etc.
(xv)  Medical/hospitalization expenses.
(xvi)  Legal/litigation expenses.
(xvii) Expenditure on dependent family members.
(xviii)Expenditure on entertainment. 
(xix)  Expenditure on travel including outstation/foreign
  travel, business as well as personal.
(xx)  Expenditure on construction/renovation and
  furnishing of residence/office. CM(M) No.79/2011              Page 10 of 12

(xxi)  Any other expenditure not covered above.

7.6  General  Information regarding Standard of Living
and Lifestyle

(i)  Status of family members.
(ii)  Credit/debit cards.
(iii)  Expenditure on marriage including marriage of family
members.
(iv)  Expenditure on family functions including birthday of the
children.
(v)  Expenditure on festivals.
(vi)  Expenditure on extra-curricular activities.
(vii)  Destination of honeymoon.
(viii)  Frequency of travel including outstation/foreign travel,
business as well as personal.
(ix)  Mode of travel in city/outside city.
(x)  Mode of outstation/foreign travel including type of class.
(xi)  Category of hotels used for stay, official  as well as
personal, including type of rooms.
(xii)  Category of hospitals opted for medical treatment
including type of rooms.
(xiii)  Name of school(s) where the child or children are
studying.
(xiv)  Brand of vehicle, mobile and wrist watch.
(xv)  Value of jewellery worn. 
(xvi)  Details of residential accommodation.
(xvii) Value of gifts received.
(xviii)Value of gifts given at family functions.
(xix)  Value of donations given.
(xx)  Particulars of credit card/debit card, its limit and usage.
(xxi)  Average monthly withdrawal from bank.
(xxii)Type of restaurant visited for dining out.
(xxiii)Membership of clubs, societies and other associations.
(xxiv)Brand of alcohol, if consumed.
(xxv)Particulars of all pending as well as decided cases
including civil, criminal, labour, income tax, excise,
property tax, MACT, etc. with parties name.

8.  Both the parties are also directed to file,  along with
affidavit,  copies of the documents  relating to  their  assets,
income and expenditure  from the date of the marriage up to CM(M) No.79/2011              Page 11 of 12

this date and more particularly the following:-
(i)  Relevant documents with respect to income including
Salary certificate, Form 16A, Income Tax Returns,
certificate from the employer regarding cost to the
company, balance sheet, etc.
(ii)  Audited accounts,  if deponent is running business and
otherwise, non-audited accounts i.e. balance sheets,
profit and loss account and capital account.
(iii)  Statement of all bank accounts.
(iv)  Statement of Demat accounts.
(v)  Passport.
(vi)  Credit cards.
(vii)  Club membership cards.
(viii)  Frequent Flyer cards.
(ix)  PAN card.
(x)  Applications seeking job, in case of unemployed person.

9.  The affidavit  and documents  be filed within a period of
four weeks with an advance copy to opposite parties who shall
file their response within two weeks thereafter.
10.  List for hearing on 9th
 November, 2011.
11.  Both the parties are directed to remain present in Court
on the next date of hearing along with all original documents
relating to their assets, income and expenditure.
12.  This Court appreciates the valuable assistance rendered
by Ms. Prem Lata Bansal, Senior Advocate.
13.  Copy of this order be sent to the Principal District Judge
for being circulated to the concerned judges dealing with
matrimonial cases.

 CM(M) No.79/2011              Page 12 of 12

14.  Copy of this order be given dasti to learned counsels for
both the parties under signature of Court Master. 


            J.R. MIDHA, J
  SEPTEMBER 12, 2011
mk

http://lobis.nic.in/dhc/JRM/judgement/09-11-2011/JRM12092011CMM792011.pdf

http://indiankanoon.org/doc/153453675/

Wife to pay maintenance to Husband under s24 Hindu Marriage Act- Delhi High court

Wife to pay maintenance to Husband under s24 Hindu Marriage Act- Delhi High court

CM(M)NO.169/2009                Page 1 of 14


07.
*  IN  THE  HIGH  COURT  OF  DELHI  AT  NEW  DELHI

+   CM(M) 169/2009

%           Judgment Delivered on:  31.03.2011

RANI SETHI                                    ..... Petitioner
      Through :  Mr. G.K. Sharma, Adv.

      versus

SUNIL SETHI                                   ..... Respondent
      Through :  Mr. B.P. Singh, Adv.

  CORAM:
   HON'BLE MR. JUSTICE G.S.SISTANI

1.  Whether the Reporters of local papers may be allowed to see
the judgment?             Yes
2.  To be referred to Reporter or not?      Yes
3.  Whether the judgment should be reported in the Digest? Yes

G.S.SISTANI, J. (ORAL)
1.  Present petition is directed against the order dated 24.2.2009
passed by learned Additional District Judge, Delhi, on an application
filed by respondent (husband) under Section 24 of Hindu Marriage
Act,  seeking maintenance from the petitioner (wife). By the
abovesaid order, trial court has directed the petitioner (wife) to pay
maintenance to the respondent (husband) @ `20,000/-, per month,
and `10,000/- as litigation expenses and also to provide Zen Car for
the use of the respondent (husband).
2.  Learned counsel for the petitioner submits that learned trial court
has exceeded its jurisdiction and has erroneously come to a finding
with regard to the income of the petitioner. While it is not in dispute
that petitioner is carrying out the business of running paying guest CM(M)NO.169/2009                Page 2 of 14


hostels in the name of Pradise PG, it is submitted by counsel for the
petitioner that the trial court has failed to consider the expenses of
running the  business  which  includes  providing  the students  with
boarding, lodging and transportation  facilities and the earnings
from the business are barely sufficient to maintain herself and her
two children, whom she is solely supporting. It is further contended
that  the financial condition of the petitioner has been ignored by
the trial court.    Counsel  next  submits that in fact the financial
condition of the petitioner would be evident from the fact that
petitioner is residing in a rented accommodation and is paying rent
@  `12,500/-, per month.  Mr.Sharma  submits that trial court has
completely lost sight of the fact that petitioner has to maintain and
provide for  two unmarried children  – one son, who is 26 years of
age, and a daughter, who is 24 years of age. Counsel next submits
that petitioner has to  not  only  provide for their maintenance  but
also  plan  their  marriages and ensure a secured future for the
children. Besides petitioner has to look after herself. It is further
submitted that petitioner  is medically  unfit and is suffering from
Leucoderma and arthritis  and she has to  spend  on  doctors,
medicines  and other tests.  Copies of medical prescriptions have
been placed on record in support of her contention.
3.  Learned counsel for the petitioner submits that even otherwise the
respondent is an able bodied person and he is in a position to
maintain  himself. Counsel further submits that respondent is CM(M)NO.169/2009                Page 3 of 14


carrying on a business in the name and style of Sethi Contractor
and accordingly the respondent is not entitled to any maintenance.
A copy of the visiting card of Sethi Contractor has been placed on
record.  Stress has also been laid by counsel for the petitioner on
the conduct and character of the respondent. Various instances
have been cited in the present petition by the petitioner to show
that respondent has an immoral character. It is also contended that
learned trial court has relied purely on the guess work to assess the
income of the petitioner and, thus, the impugned order is liable to
be set aside.
4.  Learned counsel for the petitioner submits that petitioner has
subsequently  been able to lay  her  hands on documents to show
that respondent is earning and is able to maintain himself,
however, the documents were neither filed along with this petition
nor the same were filed before the trial court at the relevant time.
However, it is submitted by counsel for the petitioner that an
application has already been moved before the trial court for
modification of the impugned order and the petitioner will rely upon
those documents before the trial court.
5.  Learned counsel for  the respondent submits that  despite the fact
that the business was set up by the respondent and the petitioner
together initially, out of the funds received from selling ancestral
property of the respondent, and the business is making a good
profit, the   trial court has been extremely conservative in granting CM(M)NO.169/2009                Page 4 of 14


only  `20,000/-, per month, as  maintenance, for the respondent.
Counsel further submits that in the affidavit filed by the respondent
on 20.1.2009 before the trial court, the respondent has enlisted the
assets of the business, which are reproduced below:
(a)  300 room on rent fully equipped
and furnished with double bed
18000x300.00
(b)  Taa Bus 1.50 Seaters  54 lacs
(c)  One Tata Winger (9+1)  8 lacs
(d)  Three Maruti Vans  6 lacs
(e)  One Maruti Zen  3 lacs
(f)  One Accent Viva Car  4 lacs
(g)  One Mess kitchen Modular with all
apparatus, uttencils, equipments,
etc. sufficient for 600 inmates
along with all other required
faculties
8 lacs
(h)  One Modern Zim with all
equipments
2 lacs
(i)  One General Store with stock  2 lacs
(j)  One Cyber Café with four
computers and other necessary
equipments
1 ½ lacs
(k)  House-hold articles including
laptop, Fridge, Air Conditioners (3),
Two LCD TVs, etc. Three bed rooms
fully equipped with one drawing
room and kitchen with jewellery
articles common family ornaments,
ancestral, etc. 
20 lacs

6.  It is submitted by counsel for the respondent that a perusal of the
abovementioned assets of the business would show that petitioner
is running a flourishing business. It is further  submitted that the
assets of the business, business investments and other personal
assets owned by the petitioner would give some idea of the status
of the petitioner.  It is next  submitted  that petitioner had filed an
additional affidavit before the trial  court where she had herself
admitted that  she  is running business in the name and style of
Paradise Hostel for the purposes of which she has taken 81 flats in CM(M)NO.169/2009                Page 5 of 14


two societies on rent,  for which she is paying  `5,07,000/- as rent;
`65,800/- as maintenance + electricity and other expenses towards
hostel, bus payments, etc. Petitioner has also  admitted in the
additional affidavit that she is paying `25,000/-, per month, towards
house  keeping;  `48,000/-, per month, towards kitchen  expenses;
`50,000/-  towards the salary of drivers, electrician, plumbers, etc;
`2,50,000/-, per month, towards Hostel‟s Ration, Grocery
Expenditure, for a strength of 386 students. 
7.  Learned counsel for the respondent submits that respondent was
unceremoniously thrown out of his house and it is only by the order
of the court that few articles were returned, which have been
noticed by the trial court in para 12 of its order.  Relevant portion of
which reads as under:
“… an application in the Court for taking his clothes and
chapels lying at  the house of the non applicant and the non
applicant has given only two pairs of pants and shirts, one
kurta paijama, three bainyans, two underwears and one pair
of chappals and two sweaters in the court on 21.1.2009 and
other articles of the applicant mentioned in his application
have not yet been given by the non-applicant/ wife.”

8.  It is next submitted that the respondent tried setting up another
business and starting life afresh.  However, the business was
unsuccessful and the partnership which was entered into for the
purpose of business was dissolved on 1.12.2009.  The respondent
has placed a copy of the dissolution of partnership deed dated
1.12.2009 in support of his contention.    Counsel further submits
that there is no infirmity in the order of the trial court, which would CM(M)NO.169/2009                Page 6 of 14


call for interference in the proceedings under Article 227 of the
Constitution of India.
9.  I have heard counsel for the parties, who have also drawn  the
attention of the Court to various documents placed on record as
also the affidavits filed by both the parties before the trial court. In
this case, the undisputed facts, which emerge, are that marriage
between parties was solemnized on 6.12.1982. A son, who is  at
present  26 years of age, and a daughter, who is  at present  24
years, were  born out of their wedlock. Admittedly, the parties
started residing separately since September, 2006, and thereafter
with the intervention of friends and relations, the  petitioner and
respondent  stayed together for a brief period in  the matrimonial
home,  however, the parties again separated  on 6.9.2008.
Allegation of the respondent is that he was thrown out of the
matrimonial home, which prima facie appears to be correct as few
of his articles were handed over to him on 20.1.2009 in the Court,
as observed by the trial court.
10.  It is settled position of law that the law makes provision to strike a
balance between the standard of living, status and luxuries that
were enjoyed by a spouse in the matrimonial home and after
separation.   It has been held by the Apex Court that the needs of
the parties, capacity to pay etc. must be taken into account while
deciding quantum of maintenance.   CM(M)NO.169/2009                Page 7 of 14


11.  In the case of  Jasbir Kaur Sehgal (Smt.) v. District Judge,
Dehradun & Others, reported at (1997) 7 Supreme Court Cases
7, it has been held as under:
“8.  The wife has no fixed abode of residence. She says she
is living in  a  Gurudwara with her eldest daughter for
safety. On the other hand  the  husband has sufficient
income and a house to himself.  The  Wife has not
claimed any  litigation expenses in this appeal. She is
aggrieved only because of the paltry amount of
maintenance fixed by the courts. 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
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  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.5,000/-  per month payable by respondent-husband
to the appellant-wife.”

12.  A Single Judge of this Court in the case of Bharat Hegde v. Saroj
Hegde, reported at 140 (2007) DLT 16, had culled out following 11
factors, which can be taken into consideration for deciding the
application under Section 24 of Hindu Marriage Act, relevant
portion of which reads as under:
8.  Unfortunately, in India, parties do not truthfully reveal
their income. For self employed persons or persons
employed in the unorganized sector, truthful income never
surfaces. Tax avoidance is the norm. Tax compliance is CM(M)NO.169/2009                Page 8 of 14


the exception in this country. Therefore, in determining
the interim maintenance, there cannot be mathematical
exactitude. The court has to take a general view. From the
various judicial precedents, the under noted 11 factors can
be culled out, which are to be taken into consideration
while deciding an application under Section 24 of the
Hindu Marriage Act. 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 life style as he/she enjoyed in the
matrimonial home.
(6)    Non-applicant‟s liabilities, if any.
(7)    Provisions for food, clothing, shelter, education,
medical attendance and treatment etc. 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
the sources or correct sources are not disclosed.
(10)  The non-applicant to defray the cost of litigation.
(11)  The amount awarded under Section 125, Cr.P.C. is
adjustable against the amount awarded under
Section 24 of the Act.


13.  The Supreme Court of India in the  case of  Jasbir Kaur (Smt.)
(supra), has also recognized the fact that spouses in the
proceedings for maintenance do not truthfully disclose their true
income and therefore some guess work on the part of the Court is
permissible. Further the Supreme Court  has also observed that
“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”. CM(M)NO.169/2009                Page 9 of 14


14.  Further in a recent decision the Apex Court in Neeta Rakesh Jain
v. Rakesh Jeetmal Jain  reported at AIR 2010 SC 3540, has laid
guidelines which the courts may keep in mind at the time of fixing
the quantum of maintenance.
“In other words, in the matter of making an order for interim
maintenance, the discretion of the court must be guided by
the criterion provided in the Section, namely, the means of
the parties and also after taking into account incidental and
other relevant factors like social status; the background from
which both the parties come from and the economical
dependence of the petitioner. Since an order for interim
maintenance by its very nature is temporary, a detailed and
elaborate exercise by the court may not be necessary, but, at
the same time, the court has got to take all the relevant
factors into account and arrive at a proper amount having
regard to the factors which are mentioned in the statute”.

15.  While, in this case, petitioner has placed copies of income tax
returns for  the assessment years 2007-2008 on record, a copy of
balance sheet as on 31.3.2007 as also a copy of Profit and Loss
Account for the year ended as on 31.3.2007, have also been placed
on record. The Profit and Loss Account of the guest house of the
petitioner reads as under: 
“PARADISE PG HOUSE
PROP. MRS. RANI SETHI
B-75, DUGGAL COLONY
KHANPUR, NEW DELHI – 110062

  PROFIT & LOSS ACCOUNT FOR THE YEAR ENDED ON 31.03.2007

PARTICULARS  AMOUNT  PARICULARS  AMOUNT
To Establishment  695900.00  By Receipts  8380178.00
To Rent for Flats  3191660.00    
” Mess Expenses  1521958.00    
” Electricity & Water  295800.00    
” Bank Charges  39870.63    
” Staff Welfare  51270.00    
” Transportation  478756.00    
”Telephone Expenses  229234.00    
” Vehicle Running & Maintenance  252859.93    
” Hire Charges  121000.00     CM(M)NO.169/2009                Page 10 of 14


” Bedsheets & Lined  152540.00    
” Medicines & Doctor‟s Fee  24128.00    
” Printing & Stationery  42190.00    
” Travelling & Conveyance  44262.00    
” Insurance  15078.00    
” Misc. Expenses  37383.00    
” Security Expenses  164500.00    
” Repair & Maintenance   286856.00    
” Interest on Car Loan Amount
Written Off
24571.72    
” Amount written Off      
” Audit Fee   23697.00    
” Depreciation  16200.00    
” Net Profit transferred to Capital  191222.07    
  8380178.00    8380178.00

16.  A perusal of the Profit and Loss Account shows that this business is
incurring a profit of `83,80178/- for the year ending on 31.3.2007. 
17.  The affidavits filed by both the petitioner and the respondent
before the trial court also unfold the details of the business, which
was initially being carried out by both the petitioner and the
respondent and subsequently admittedly by the wife  along.
Relevant portion of the affidavit of the respondent reads as under:
“Affidavit of Sunil Sethi s/o late J.N. Sethi R/o A-43, Street No.10, Madhu
Vihar, I.P. Extension, Delhi-110092 (however presently without any
accommodation).


I the above-named deponent do hereby solemnly affirm on oath and state
as under:-

1.   I say that being petitioner in the above mentioned case, I am
entitled to swear the present affidavit.

2.  I say that the respondent is proprietor of M/s Paradise P.G. House
Informative Society, Sector-VI, Greater Noida, (U.P.).

3.  That the said firm established by me and started with the capital
investment of Rs.8,00,000/-  in  the year of 2003 which I had got
from my share in my ancestral/parental property.

4.  I say that the total asset of the said firm owned by the respondent
is about Rs.1,00,000/-  approximately.  This assessment is dated
05.09.08 when I forced to leave the business.

5.  I  say  that asset of  the  respondent’s  firm as on 05.09.08 were as
under:-

S.  Particulars  Approx. CM(M)NO.169/2009                Page 11 of 14


No.    value
 (in Rs.)  
  
1.    300 room on rent fully equipped and
furnished with double bed

18000x300.00
54 lacs
2.    Tata Bus 1.50 Seaters

17 lacs
3.    One Tata Winger (9+1 seater)

8 lacs
4.    Three Maruti Vans

6 Lacs
5.    One Maruti Zen

3 Lacs
6.    One Accent Viva Car

4 lacs
7.    One Mess Kitchen Modular with all
apparatus, utensil, equipments etc.
sufficient for 600 inmates along with all
other required facilities

8 lacs
8.    One Modern Zim with all equipments 

2 lacs
9.    On General Store with stock

2 lacs
10.   One Cyber Cafe with four computers
and other necessary equipments

1 ½ lacs
11.   House-hold articles including Laptop,
Fridge, Air Conditions (3), Two LCD TVs
etc.  Three bed rooms fully equipped
with one drawing room and kitchen with
jewellery articles common family
ornaments, ancestral etc.
20 lacs

6.  I say that on 05.05.08, the liability over the firm namely M/s Paradise
was namely Rs.15,00,000/- approx.”

18.  The petitioner herein also filed her affidavit before the trial court. 
Affidavit of petitioner reads as under:
“I, Rani Sethi w/o Mr. Sunil Sethi r/o Rajdhani Nikunj, Plot no.94, I.P.
Extension, Patparganj, Delhi do hereby solemnly affirm on and declare as
under:

A.  ………

B.  That following are the details of the monthly expenditure incurred by
me in my business of running Paradise Hostel.

i.  That I have hired on rent 50 and 31 flats respectively in two
societies namely informatics and Khushboo whose details
are as follows:

  Rent of Flats  Maintenance   Electricity Bills
Informatics   Rs.2,59,000/-  Rs.34,800/-  +Electivity Bills
Khusboo  Rs.2,48,000/-  Rs.31,000/-  +Electivity Bills CM(M)NO.169/2009                Page 12 of 14


Total Rent  Rs.5,07,000/-  Rs.65,800/-  +Electivity
Bills


C.  That the expenditure incurred and the monthly installments due for
the following are as under:

Hotel Bus  EMI-22,216/-  PER per month + 9 Lakh
invested in Bus down payment.
Winger’s  EMI-10,450/-  per month + 2,60,000/-
down payment
Viva’s  EMI-10209/- per month
Zen’s  EMI-10,540/- per month
Van’s  EMI-17,365/- per month
Total  EMI-71,365/- per month


D.  Staff Salary –   Home Keeping   25,000/- per month

Kitchen    48,000/- per month

Drivers and electrician 

  Total Salary of Staff            1,23,000/- per month
  
Hostel’s Ration + Grocery Exp.+ Snacks  item etc. 2,50,000/- per month
for 386 strength of students
Maintenance Exp.        30,000/- per month
Diesel for Bus         25,000/- per month
Diesel for Generator- Informatics     38,800/- per month
            Khushboo    19,400/- per month
House rent          12,500/- per month
House Maintenance             15,000/- per month+Electricity bill
Transport charge of hostel      27,000/- per month
Three buses on hire     

E.  That it is also submitted that session starts in August of every month.”


19.  Taking into consideration the documents, which have been filed on
record of this court and the affidavit of the petitioner,  the balance
sheet, the Profit and Loss Account of the guest house and the
income and expenditure of the guest house,  it is clear that the CM(M)NO.169/2009                Page 13 of 14


petitioner has a substantial income from the business, which was at
one time started jointly by both the petitioner and the respondent.
The purpose of section 24 of Hindu Marriage Act is to provide
support to a spouse who has no independent source of income and
is incapable of maintaining himself/herself. It is trite law that the
term  „support‟  is not to be construed in a narrow manner so as to
mean bare subsistence. It means that the other spouse, who has no
independent source of income,  is provided with such maintenance
so as to live in  a similar status as was enjoyed by  them  in  their
matrimonial home.   It is the purpose of section 24 that the wife or
the husband who has no sufficient source of income for her or his
support or for the expenses of the proceedings must be provided
with such reasonable sum that strikes equity between the spouses.  
20.  Taking into consideration  the facts of this case and  the settled
position of law,  I am of the view that learned trial court has
correctly considered the relevant factors and has also rightly relied
upon the judgments of this court as also the Apex Court. I find no
infirmity in the order dated 24.2.2009, which requires interference
by this court in the proceedings under Article 227 of the
Constitution of India. Accordingly, present petition is without any
merit and the same is dismissed.
21.  Interim order dated 4.3.2009 stands vacated. All arrears shall be
cleared by the petitioner within a period of three months from
today, which shall be paid by the petitioner to the respondent in CM(M)NO.169/2009                Page 14 of 14


equal installments and the first installment shall be paid by the
petitioner within 15 days from today.
CM NO.3129/2009 (STAY).
22.  Application stands dismissed in view of the orders passed in the
petition. 

G.S. SISTANI, J.
March 31, 2011
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http://lobis.nic.in/dhc/GSS/judgement/05-05-2011/GSS31032011CMM1692009.pdf