working in that capacity since the year 2003. When the appellant/wife is a
qualified Chartered Accountant and practicing since the year 2003, after
putting in 13 years in profession she cannot be expected to earn only
₹7,000/- per month which is below the minimum wages payable to an
unskilled worker.
11. In context of award of interim maintenance under Section 24 of the
Hindu Marriage Act to a well qualified spouse having the earning capacity
but desirous of remaining idle has been deprecated in the decision reported
as 2000 (3) MPLJ 100 Smt.Mamta Jaiswal Vs. Rajesh Jaiswal observing as
under:-
“6. In view of this, the question arises as to in
what way Section 24 of the Act has to be
interpreted. Whether a spouse who has capacity of
earning but chooses to remain idle, should be
permitted to saddle other spouse with his or her
expenditure? Whether such spouse should be
permitted to get pendente life alimony at higher
rate from other spouse in such condition?
According to me, Section 24 has been enacted for
the purpose of providing a monetary assistance to
such spouse who is incapable of supporting
himself or herself in spite of sincere efforts made
by him or herself. A spouse who is well qualified to
get the service immediately with less efforts is not
expected to remain idle to squeeze out, to milk out
the other spouse by relieving him of his or her own
purse by a cut in the nature of pendente life
alimony. The law does not expect the increasing
number of such idle persons who by remaining in
the arena of legal battles, try to squeeze out the
adversory by implementing the provisions of law
suitable to their purpose. In the present case
Mamta Jaiswal is a well qualified woman
possessing qualification like M.Sc. M.C. M.Ed. Till
1994 she was serving in Gulamnabi Azad
Education College. It impliedly means that she
was possessing sufficient experience. How such a
lady can remain without service? It really puts a
big question which is to be answered by Mamta
Jaiswal with sufficient congent and believable
evidence by proving that in spite of sufficient
efforts made by her, she was not able to get service
and, therefore, she is unable to support herself. A
lady who is fighting matrimonial petition filed for
divorce, can not be permitted to sit idle and to put
her burden on the husband for demanding
pendente lite alimony from him during pendency of
such matrimonial petition. Section 24 is not meant
for creating an army of such idle persons who
would be sitting idle waiting for a 'dole' to be
awarded by her husband who has got a grievance
against her and who has gone to the Court for
seeking a relief against her. The case may be viceversa
also. If a husband well qualified, sufficient
enough to earn, sits idle and puts his burden on
the wife and waits for a 'dole' to be awarded by
remaining entangled in litigation. That is also not
permissible. The law does not help indolents as
well idles so also does not want an army of self
made lazy idles. Everyone has to earn for the
purpose of maintenance of himself or herself,
atleast, has to make sincere efforts in that
direction. If this criteria is not applied, if this
attitude is not adopted, there would be a tendency
growing amongst such litigants to prolong such
litigation and to milk out the adversory who
happens to be a spouse, once dear but far away
after an emerging of litigation. If such army is
permitted to remain in existence, there would be
no sincere efforts of amicable settlements because
the lazy spouse would be very happy to fight and
frustrate the efforts of amicable settlement because
he would be reaping the money in the nature of
pendente lite alimony, and would prefer to be
happy in remaining idle and not bothering himself
or herself for any activity to support and maintain
himself or herself. That can not he treated to he
aim, goal of Section 24. It is indirectly against
healthyness of the society. It has enacted for needy
persons who in spite of sincere efforts and
sufficient efforts arc unable to support and
maintain themselves and arc required to fight out
the litigation jeopardising their hard earned
income by toiling working hours.”
IN THE HIGH COURT OF DELHI AT NEW DELHI
Dated: September 05, 2016
MAT.APP.(F.C.) 143/2014
RUPALI GUPTA
v
RAJAT GUPTA
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
Citation: 2016 SCCONLINE DEL 5009
1. The appellant/wife is aggrieved by the order dated September 06,
2014 whereby learned Judge Family Court awarded a sum of ₹22,900/- per
month towards maintenance to the two children of the parties but declined to
award interim maintenance to her as she is a qualified Chartered Accountant
having sufficient means to maintain herself.
2. It is admitted case of the parties that they got married on July 16,
2005 at Delhi in accordance with Hindu Rites and Ceremonies. They are
having two children. Elder one is a son born on March 04, 2006 and younger
one is a daughter born on March 12, 2008. They were living together till
August 23, 2013. The appellant/wife is a qualified Chartered Accountant
whereas the respondent/husband is an Electrical Engineer but running his
own business. There are rival claims about the financial status and
respective earnings of the parties.
3. The respondent/husband filed a petition for dissolution of marriage
under Section 13(1)(ia) of the Hindu Marriage Act.
4. In the divorce petition, the wife filed an application under Section 24
of the Hindu Marriage Act seeking interim maintenance for a sum of
₹3,00,000/- per month for herself and the two children and ₹1,10,000/-
towards litigation expenses.
5. The impugned order has been challenged by the appellant/wife mainly
on the ground that her income prior to separation has been wrongly taken
into account and the view taken about her monthly income to be not less
than ₹40,000/- in contrast to her claim of earning ₹7,000/- per month is
erroneous and liable to be set aside. Another ground of challenge is that
income of her husband which is not less than ₹8,00,000/- per month has
wrongly been assessed as ₹1,10,000/- per month.
6. When the appeal was reserved for judgement, a written note has been
filed by the appellant/wife auditing the income of the respondent/husband
and enclosing the receipt of the payment of tuition fees and transport
charges in respect of the two children. She has also mentioned her
reasonable wants from her husband which includes house rent, household
expenses, miscellaneous expenses as well tuition fees and transport charges
but without disclosing her own assets and income truthfully.
7. Section 24 of the Hindu Marriage Act makes a provision for award of
interim maintenance to a spouse who has no independent income sufficient
to support her and fight the legal battle. In the decision reported as AIR 2003
Mad 212 Manokaran @ Ramamoorthy Vs. M.Devaki High Court of Madras
while construing the provision of Section 24 of the Hindu Marriage Act and
relying on its earlier decision reported as (2002) 2 M.L.J. 760 Kumaresan
Vs.Aswathi held that for grant of maintenance pendent lite, the party should
not have sufficient independent income for her/his support.
8. While denying maintenance to the appellant/wife, learned Judge
Family Court refused to believe her claim that she was getting only ₹7,000/-
per month despite the fact that she had been practicing as Chartered
Accountant since the year 2003 earlier with M/s S.N.Verma & Company,
after her marriage with her father-in-law who himself is a Chartered
Accountant and then again with M/s S.N.Verma & Company. Her claim that
she has no sufficient means to support herself and children had been dealt
with by the learned Judge Family Court noting that the parties had been
indulging in jugglery of accounts making the things complex.
9. The relevant discussion in para No.33 of the impugned order records
the reason for not accepting the claim of the appellant/wife to seek
maintenance from her husband and extracted hereunder:-
“33. The Applicant herself and her father in law as
well as her former employer and now present
employer M/s S.N.Verma and Co. all are
Chartered Accountants. They are all competent
professionals in maintaining accounts, filing
income-tax returns of individuals as well as
corporates. The income-tax returns filed by the
Applicant herself reveal that she had advanced a
loan of ₹11,99,026/- to Smt.Raj Gupta (her
mother-in-law). The Petitioner/husband had, also,
advanced loan of ₹12 lacs to ₹13 lacs to his
parents. The Petitioner/husband had taken a loan
of ₹6/7 lacs from his mama (maternal uncle). The
Petitioner/husband claims to have taken a loan of
₹25 lacs jointly with his mother. It may not be
entirely out of context herein to note thst Shri
Nishant Jain, brother of the Applicant/wife is also
facing divorce and maintenance petition filed
against him by his wife Ms.Shefali Jain. In the said
petition Shri Nishant Jain (brother of the
Applicant) has claimed through his affidavit of
income, assets and liabilities that he is not
working since the year 2008 and had got married
on 11.12.2010 (while being unemployed). He
purchased a car make Toyota Altis in the year
2010. He purchased LED TV make Sony and
music system make Sony in the year 2010. His
father gifted him a laptop make Dell in the year
2011. He has taken insurance policies and paying
annual premium of ₹24750/-. His father advanced
him a loan of ₹6,42,000/- on 16.09.2013. What is
interesting to note that he is unemployed, does not
work at all and claims to be maintained by his
parents like his sister (Applicant herein). It is
beyond comprehension as to why his father gifted
him a laptop in the year 2011 when he is not
working and obviously is a burden on his family.
In such circumstances, it would have been
extremely difficult for the father of the
Applicant/wife to support her. It appears that the
parties as well as their family members have been
indulging in jugglery of accounts, making the
things complex. May be an enquiry by the incometax
department or some other agency in all the
transactions conducted by the parties and their
family members, since their marriage i.e. 2005
could reveal the truth. However, the same would
result in delay of the disposal of the petition and
cause hardship to the children of the parties. I,
therefore, do not consider it expedient to get such
an enquiry conducted at this stage.”
10. Admittedly the appellant/wife is a qualified Chartered Accountant and
working in that capacity since the year 2003. When the appellant/wife is a
qualified Chartered Accountant and practicing since the year 2003, after
putting in 13 years in profession she cannot be expected to earn only
₹7,000/- per month which is below the minimum wages payable to an
unskilled worker.
11. In context of award of interim maintenance under Section 24 of the
Hindu Marriage Act to a well qualified spouse having the earning capacity
but desirous of remaining idle has been deprecated in the decision reported
as 2000 (3) MPLJ 100 Smt.Mamta Jaiswal Vs. Rajesh Jaiswal observing as
under:-
“6. In view of this, the question arises as to in
what way Section 24 of the Act has to be
interpreted. Whether a spouse who has capacity of
earning but chooses to remain idle, should be
permitted to saddle other spouse with his or her
expenditure? Whether such spouse should be
permitted to get pendente life alimony at higher
rate from other spouse in such condition?
According to me, Section 24 has been enacted for
the purpose of providing a monetary assistance to
such spouse who is incapable of supporting
himself or herself in spite of sincere efforts made
by him or herself. A spouse who is well qualified to
get the service immediately with less efforts is not
expected to remain idle to squeeze out, to milk out
the other spouse by relieving him of his or her own
purse by a cut in the nature of pendente life
alimony. The law does not expect the increasing
number of such idle persons who by remaining in
the arena of legal battles, try to squeeze out the
adversory by implementing the provisions of law
suitable to their purpose. In the present case
Mamta Jaiswal is a well qualified woman
possessing qualification like M.Sc. M.C. M.Ed. Till
1994 she was serving in Gulamnabi Azad
Education College. It impliedly means that she
was possessing sufficient experience. How such a
lady can remain without service? It really puts a
big question which is to be answered by Mamta
Jaiswal with sufficient congent and believable
evidence by proving that in spite of sufficient
efforts made by her, she was not able to get service
and, therefore, she is unable to support herself. A
lady who is fighting matrimonial petition filed for
divorce, can not be permitted to sit idle and to put
her burden on the husband for demanding
pendente lite alimony from him during pendency of
such matrimonial petition. Section 24 is not meant
for creating an army of such idle persons who
would be sitting idle waiting for a 'dole' to be
awarded by her husband who has got a grievance
against her and who has gone to the Court for
seeking a relief against her. The case may be viceversa
also. If a husband well qualified, sufficient
enough to earn, sits idle and puts his burden on
the wife and waits for a 'dole' to be awarded by
remaining entangled in litigation. That is also not
permissible. The law does not help indolents as
well idles so also does not want an army of self
made lazy idles. Everyone has to earn for the
purpose of maintenance of himself or herself,
atleast, has to make sincere efforts in that
direction. If this criteria is not applied, if this
attitude is not adopted, there would be a tendency
growing amongst such litigants to prolong such
litigation and to milk out the adversory who
happens to be a spouse, once dear but far away
after an emerging of litigation. If such army is
permitted to remain in existence, there would be
no sincere efforts of amicable settlements because
the lazy spouse would be very happy to fight and
frustrate the efforts of amicable settlement because
he would be reaping the money in the nature of
pendente lite alimony, and would prefer to be
happy in remaining idle and not bothering himself
or herself for any activity to support and maintain
himself or herself. That can not he treated to he
aim, goal of Section 24. It is indirectly against
healthyness of the society. It has enacted for needy
persons who in spite of sincere efforts and
sufficient efforts arc unable to support and
maintain themselves and arc required to fight out
the litigation jeopardising their hard earned
income by toiling working hours.”
12. Both the children of the parties have been awarded interim
maintenance for a sum of ₹22,900/- on the projection by the appellant/wife
that she has been incurring a sum of ₹32,000/- per month for their
maintenance including their tuition and other expenses.
13. The Supreme Court in the case reported as (2000) 4 SCC 266 Padmja
Sharma Vs. Ratan Lal Sharma has dealt with the issue of maintenance and
obligation of the mother having the earning capacity to maintain the
children. The relevant discussion appears in para No.10 which is extracted
hereunder:-
“10. Maintenance has not been defined in the Act
or between the parents whose duty it is to maintain
the children. Hindu Marriage Act, 1955, Hindu
Minority and Guardanship Act, 1956, Hindu
Adoptions and Maintenance Act, 1956 and Hindu
Succession Act, 1956 constitute a law in a coded
form for the Hindus. Unless there is anything
repugnant to the context definition of a particular
word could be lifted from any of the four Acts
constituting the law to interpret a certain
provision. All these Acts are to be read in
conjunction with one another and interpreted
accordingly. We can, therefore go to Hindu
Adoptions and Maintenance Act, 1956 (for short
the 'Maintenance Act') to understand the meaning
of the 'maintenance'. In Clause (b) of Section 3 of
this Act "maintenance includes (i) in all cases,
provisions for food, clothing residence, education
and medical attendance and treatment; (ii) in the
case of an unmarried daughter also the reasonable
expenses of and incident to her marriage." and
under Clause (c) "minor means a person who has
not completed his or her age of eighteen years,"
Under Section 18 of Maintenance Act a Hindu wife
shall be entitled to be maintained by her husband
during her life time. This is of course subject to
certain conditions with which we are not
concerned. Section 20 provides for maintenance of
children and aged parents. Under this Section a
Hindu is bound, during his or her life time, to
maintain his or her children. A minor child so long
as he is minor can claim maintenance from his or
her father or mother. Section 20 is, therefore, to be
contrasted with Section 18. Under this Section it is
as much the obligation of the father to maintain a
minor child as that of the mother. It is not the law
that how affluent mother may be it is the
obligation only of the father to maintain the
minor.”
14. So far as refusal to award interim maintenance to the appellant/wife is
concerned, we concurred with the finding of learned Judge Family Court.
The appellant/wife who is a qualified Chartered Accountant and in
profession since the year 2003 need not be granted interim maintenance
under Section 24 of the Hindu Marriage Act.
15. The respondent/husband while appearing before the Court
acknowledges his responsibility to support his children and did not question
the maintenance awarded to them. He assures the Court that he will ensure
good education for his children and bear the additional burden in terms of
increase in school fees, transport allowance etc. as and when necessity arises
and brought to his notice. He has only objected to award of maintenance to
his wife who is a Chartered Accountant and to this extent we have also not
granted any relief to her.
16. Since the learned Judge Family Court has taken a balanced view in
the matter we do not find any ground to interfere with the same.
17. Appeal is dismissed.
18. No costs.
PRATIBHA RANI
(JUDGE)
PRADEEP NANDRAJOG
(JUDGE)
SEPTEMBER 05, 2016
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