Kaur Sehgal Vs. The District Judge Dehradun & Ors  INSC 687 (27 August 1997)
V. MANOHAR, D. P. WADHWA
Mrs. Justice Sujata V. Manohar Hon'ble Mr. Justice D.P. Wadhwa Ms. Shalu
Sharma, Rajesh K. Sharma, Rakesh K. Sharma, Advs., for the appellant.
Arvind Varma, Advs. for K.L. Mehta & Co., Advs. for the Respondents.
following Judgment of the Court was delivered :
is wife's appeal against the judgment dated October 14, 1996 of the High Court of Judicature at Allahabad. She is aggrieved by the impugned
judgment under which she was awarded maintenance pendente lite under Section 24
of the Hindu Marriage Act, 1955 (for short `the Act') at the rate of Rs. 1500/-
per month. On an application filed by the wife in the trial court in proceeding
for divorce initiated by her husband, respondent No.3 herein, she was awarded Rs.
2,500/- (Rupees two thousand and five hundred only) as expenses of litigation
and maintenance pendente lite at the rate of Rs. 1000/- per month. Her revision
before the District Judge Dehradun against this order was dismissed. She
further filed writ petition under Article 227 of the Constitution of India in
the High Court.
impugned judgment the High Court enhanced the maintenance to Rs. 1500/- per
1 and 2 in this appeal are respectively the District Judge, Dehradun and the
Additional Civil Judge (IInd), Dehradun who are described as proforma
not proper or even justified on the part of the appellant to implead the courts
as respondents and respondents 1 and 2 are, therefore, struck off from the
record of this appeal.
were married on October
2, 1963. The husband
at that time was an army officer. He retired and Lt. Colonel on August 10, 1986. On September 28, 1989 he filed the petition for divorce against his wife under
Section 13 of the Act on the alleged grounds of cruelty and desertion. He
stated that within two years of the marriage the wife started creating problem
for him and she persisted in her behaviour right till the year 1989. In this
span of 26 years in their married life, they have become the parents of four
children, two sons and two daughters. Eldest daughter who is 34 years old and
unmarried is living with her mother who maintains her. Second child is so who
is working with Mukul Overseas Pvt. Ltd. on a monthly salary of Rs. 7500/- per
month and is living in a house in Safdarjung Enclave in New Delhi. Third child
is a daughter aged 26 years. She is also unmarried and unemployed and is living
with the father. Fourth child is a son of 20 years of age, he is unemployed and
had studied upto 11th class. Husband says that being head of the family he is
to maintain two sons and a daughter as they are dependent on him. His claim is
that he is presently having a meagre salary of Rs. 5000/- per month and is
employed as consultant/adviser with M/s. Mukul International Private Limited.
Both Mukul Overseas (P) Ltd. and Mukul International (P) Ltd. belong to same
retirement from the army, respondent-husband joined the Oil and Natural Gas
Commission (ONGC) as a Director and was posted at Dehradun. He retired from
that post on August 21,
1995. Thereafter from January 1, 1996 husband is working with M/s. Mukul
International Pvt. Ltd.
aforesaid. After deduction of income-tax at source, husband says he is getting
an amount of Rs. 4700/- per month. Husband admits that he has a house in NOIDA
which was on rent with the army and lease was terminated by letter dated January 29, 1996 from the Ministry of Defence. He
says repairs are being carried on in the house and presently he is living with
her eldest son in his house. He further says he is not getting any pension as
on his permanent absorption in ONGC, he had opted to receive lumpsum amount in
lieu of pension and prorata gratuity amount in lieu of pension and prorata
gratuity amounting to Rs. 2,60,456/-. In addition the husband also received an
amount of Rs. 55,775/- on account of D.C.R. Gty. Husband has also filed his
computation of taxable income for the assessment years 1992- 93, 1995-96 and
1996-97. He has though not filed any assessment order. Since he retired from
ONGC in August, 1995 it would be appropriate to see his computation of taxable
income for the year ending March 31, 1995.
His gross salary income in Rs. 1,88,281/- and after deduction of House Rent
Allowance it comes to Rs. 1,78,614. Income from house property he say is Rs.
22716/-, interest income is Rs. 3179/-. Total of these three items would be Rs.
there are claims of standard deduction, repairs in the house and tax rebate on
saving amounting to Rs. 68,922/- which include payment on account of LIC, PF,
PPF, MEP, NSC and general insurance. The amount of tax payable comes to Rs.
35716/- on a taxable income of Rs. 1,81,790/-. For the assessment year 1996-97
(year ending on March 31, 1996) the salary income shown is 1,18,151/-, income
from house property is Rs. 18, 930/- and after standard deduction, and other deduction
and the rebate the income tax payable is Rs. 18, 464/- on the net income of Rs.
says that the husband has not given true account of his assets and income and
has rather suppressed the same.
the wife has not been able to give any specific evidence to support her
contention but circumstance show that the husband has not given true state of
affairs of his income. He has pleaded that both his wife and his eldest
daughter are earning Rs. 10,000/- per month but there is no basis for such an
allegation. The fact remains that the wife has no source of income and she is
also maintaining her eldest unmarried daughter. Under the Hindu Adoptions &
Maintenance Act, 1956 it is the obligation of a person to maintain her
unmarried daughter if she is unable to maintain herself. In this case since the
wife has no income of her own, it is the obligation of the husband to maintain
her and her two unmarried daughters one of whom is living with wife and one
with him. Section 24 of the Act no doubt talks of maintenance of wife during
the pendency of the proceedings but this section, in our view, cannot be read
in isolation and cannot be given restricted meaning to hold that it is
maintenance of the wife alone and no one else.
wife is maintaining the eldest unmarried daughter, her right to claim
maintenance would include her own maintenance and that of her daughter. This
fact has to be kept in view while fixing the maintenance pendente lite for the
wife. We are aware of the provisions of Section 26 of the Act providing for
custody of minor children, their maintenance and education but that section
operates in its own field.
has filed this counter affidavit in the appeal before us and on our direction
both the parties have filed additional affidavits. On one date when this appeal
came up for hearing we were told that the husband had left that morning itself
for Canada for further treatment after his bypass surgery in India and that his
expenses visiting the Canada and as well as the expenses for the treatment
there were being met by his friend. In his affidavit husband has stated that
his friend Sontosh Singh for his treatment in Canada paid his fare. He is, however, silent about the expense if
any met by Sontosh Singh for his treatment in Canada. A copy of the statutory declaration of Sontosh Singh which
is dated March 21, 1997 has also been filed. In this Sontosh
Singh does say that he has undertaken to bear the cost of passage and
maintenance of respondent during his stay in Canada and North
America. It is a
matter of common knowledge that medical treatment in Canada is high and an ordinary person
cannot afford the expenses which are met by taking medical insurance. As to
what expenses husband incurred for his bypass surgery in India has not been disclosed. On our
query as to how much foreign exchange husband obtained while going to Canada, it was stated that Dollar U.S.
1,350 were obtained at a cost of about Rs.
From where all these monies came from we are left in dark. Husband had not
filed any certificate of his salary from his present employer though the wife
has contended that both the firms Mukul Overseas Pvt. Ltd and Mukul
International Pvt. Ltd. are owned by the husband himself which fact husband had
denied. Though we are not concerned with the income of his son which is stated
to be Rs. 7,500/- per month, it would have been better if the husband had given
complete details as to the perquisites enjoyed by his son, the rent he is
paying for his rented accommodation at Safdarjung Enclave and the like. Claim
of the husband that though his house in NOIDA fell vacant in January, 1996, it
has neither been further let nor the husband himself living there because of
certain repairs and on that account he is residing with his son does not appeal
to us. It does appear to us from the affidavit of the husband that it conceals
more than what it tells of his income and other assets.
has been made to conceal his true income and that leads us to draw an adverse
inference against the husband about his income that it is much more than what
is being disclosed to us. The claim of the husband that from an income of Rs.
4,750/- per month which is getting from Mukul International Pvt. Ltd. he has to
maintain himself, his two sons and daughter is absorb particularly when the
eldest son is earning more than the husband and it is the husband who is living
with him. Husband has also not disclosed retrial benefits if any from the ONGC
and the amount of provident fund he obtained from there. Husband has interest
income from Unit Trust of India and also from the fixed deposit receipt but
again he has not disclosed the number of units he is holding and the amount of
the fixed deposits in his name, from all these we have to hold that the annual
income of the respondent-husband is even on modest estimate to be Rs. 2,40,000/-
annually which would come to Rs. 20,000/- per month. 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.
has no fixed abode of residence She say she is living in Gurudwara with her
eldest daughter for safety. On the other hand husband has sufficient income and
a house to him. Wife has not claimed and litigation expenses in this appeal.
She is aggrieved only because of the paltry amount of maintenance fixed by the
court. No set formula can be laid for fixing the amount of maintenance. It has,
in 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 those;
he is obliged under the law and statutory but involuntary payments or
deductions. 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.
question then arises as to from which date the wife would be entitled to claim
the enhanced amount of maintenance pendente lite. If wife has no source of
income it is the obligation of the husband to maintain her and also children of
the marriage on the basis of the provision contained in the Hindu Adoption and
Maintenance Act, 1956.
right to claim maintenance fructifies on the date of the filing of the petition
for divorce under the Act. Having thus fixed the date as the filing of the
petition for divorce it is not always that the court has to grant the
maintenance from that date. The court has discretion in the matter as to from
which date maintenance under Section 24 of the Act should be granted. The
discretion of the court would depend upon multiple circumstance which are to be
kept in view. These could be the time taken to serve the respondent in the
petition the date of filing of the application under Section 241 of the Act;
conduct of the parties in the proceedings; averments made in the application
and the reply there to; the tendency of the wife to inflate the income out of
all proportion and that of the husband to suppress the same; and the like.
There has to be honesty of purpose for both the parties which unfortunately we
find lacking in this case. We are therefore of the opinion that ends of justice
would be met if we direct that maintenance pendente lite as fixed by this
judgment to be payable from the date of impugned order of the High Court which
is October 16, 1996.
order accordingly. The impugned judgment of the High Court shall stand modified
to that extent. All arrears of maintenance shall be paid within a period of two
months from today and then regularly every month.
appeal is allowed with costs. Counsel fee Rs. 2,500/-.