Sunday, March 11, 2012

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 CafĂ© 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
'msr‟
http://lobis.nic.in/dhc/GSS/judgement/05-05-2011/GSS31032011CMM1692009.pdf
 

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