the Court would have no alternative but to apply its guess-work. In the
decision reported as 140 (2007) DLT 16 Sh.Bharat Hegde Vs. Smt.Saroj
Hegde it was held that under noted eleven factors have to be taken into
account: -
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 u/s 125 Cr.PC is adjustable against the
amount awarded u/ 24 of the Act.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: August 08, 2016
MAT.APP.(F.C.) 35/2015
SUJIT KUMAR
versus
VANDANA
CORAM:
MR. JUSTICE PRADEEP NANDRAJOG
MS. JUSTICE PRATIBHA RANI
1. For the reasons stated in the application, five days delay in filing of
the appeal is condoned.
2. The application is disposed of.
1. The appellant has been directed to pay maintenance to the respondent
in the sum of ₹65,000/- per month. Its justification is: (i) ₹20,000/- per
month for the respondent; and (ii) ₹ 15,000/- each for the three children born
to the appellant and the respondent.
2. We have heard learned counsel for the parties and have perused the
record.
3. The grievance of the appellant is that learned Trial Judge did not take
into account the monthly EMIs paid by the appellant to the various banks
and financial institutions to whom motor vehicles have been pledged while
availing the finance.
4. Indeed, the impugned order does not factor in said fact i.e. of the
appellant paying monthly EMIs for the vehicle taken on finance by the
appellant. But hastened to add that in para 15 of the impugned order the
learned trial Judge has noted the said stand taken by the appellant.
5. The signature tune of the impugned order is that the appellant would
be expected to earn at least ₹10,000/- per month from the twenty-one
vehicles owned by the appellant.
6. The appellant is in the business of Tours & Travels. He does not
dispute owning twenty-one vehicles. He claims that he has to repay EMIs
each month.
7. We have perused the bank statement of accounts. Debit and credit
entries are frequent. When all was fine the appellant was having eight LIC
policies. He admits advancing loan in sum of ₹3,00,000/- and ₹1,00,000/- to
friends as friendly loans without any interest being charged.
8. Monthly deposits in the banks range between ₹17,00,000/- to
₹76,00,000/- with huge cash withdrawals. The appellant justifies the cash
withdrawal towards expenditure incurred on petrol, salary paid to the
drivers, parking, toll-tax etc.
9. The appellant has not given cogent proof of exact amount which he
pays to the bank and financial institutions towards EMIs. As per his oral
statement total EMIs per month in sum of ₹2,60,000/-.
10. Considering the totality of the circumstances, we do not find any
infirmity in the view taken by the learned Trial Judge that the appellant has a
flourishing Tours & Travel business. He has twenty-one vehicles.
Presumptive income of ₹10,000/- per month per vehicle is justified keeping
in view the monthly withdrawals which appellant makes and justifies as
expenses incurred for petrol, salary to drivers, taxes and tolls. For example,
in the month in which the appellant has withdrawn ₹77,00,000/- from the
bank and claims having used said money to defray the expenses surely for
twenty-one vehicles driven profit would be at least ₹5,00,000/- that month.
To put it simply, huge cash withdrawals are being made to depress net
income.
11. The object behind Section 24 of the Hindu Marriage Act, 1955 is to
provide for maintenance, pendente-lite, to a spouse in matrimonial
proceedings so that during the pendency of the proceedings the spouse can
maintain herself/himself and also have sufficient funds to carry on the
litigation so that the spouse does not unduly suffer in the conduct of the
case for want of funds.
12. A spouse unable to maintain himself/herself is entitled to maintenance
on the principle of equi-status and respect that the spouse would have
enjoyed if he/she continued to live with other spouse.
13. The provisions of Section 24 are beneficent in nature and the power
is exercised by the Court not only out of compassion but also by way of
judicial duty so that the indigent spouse may not suffer at the instance of the
affluent spouse. The legislature, in its discretion, has not fixed any
guideline regarding ceiling limit of maintenance, pendente-lite, as in the
case of Divorce Act or Parsi Marriage Act. The word ‘support’ in Section 24
is not to be narrowly interpreted. It does not mean bare existence. It means
that the claimant spouse should have the same comfort as the other. Of
course, the Section is not intended to bring about arithmetical equality
between the two.
14. The Court while considering the merits of an application for grant of
an interim maintenance under Section 24 has to necessarily arrive at primafacie
determination about the earning capacity of the rival claimants. The
determination cannot be made with exactitude; it is essentially interim in
nature. The Court is called upon to make a summary consideration of
amount which the applicant is to be awarded by way of maintenance
pendente-lite and litigation expenses in accordance with the financial
resources of the parties. Capacity of the other party to earn cannot be taken
into consideration – it is only the actual earning of the opposite party on the
basis of which relief can be granted. Permanent income and not casual
income is relevant. For example if a husband brings on record that the nonapplicant
wife earns some amount by taking coaching classes for children,
this cannot be termed as her permanent income or that the wife has
independent permanent source of income. The proceedings being summary,
the matter has to be decided on the basis of pleadings supported by affidavits
and the documents that may be filed by the parties in support of their case.
15. Where there was sufficient means in the family of the husband on the
strength of which the husband got married he has to share the burden to
support his wife during the course of annulment of such marriage.
16. Where the parties do not come forward with exact income they have,
the Court would have no alternative but to apply its guess-work. In the
decision reported as 140 (2007) DLT 16 Sh.Bharat Hegde Vs. Smt.Saroj
Hegde it was held that under noted eleven factors have to be taken into
account: -
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 u/s 125 Cr.PC is adjustable against the
amount awarded u/ 24 of the Act.
17. The appeal is dismissed but without any order as to costs.
Dismissed as infructuous.
PRADEEP NANDRAJOG
(JUDGE)
PRATIBHA RANI
(JUDGE)
AUGUST 08, 2016
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