Puneet Kaur vs Inderjit Singh Sawhney on 12 September, 2011
Author: J.R. Midha
* 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,
INDERJIT SINGH SAWHNEY ..... Respondent Through : Respondent in person.
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?
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 1 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
CM(M) No.79/2011 Page 2 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 3 of 12
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."
CM(M) No.79/2011 Page 4 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 5 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. ......