Sunday, March 11, 2012

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

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