IN THE COURT OF SH. [ENTITY] : SPECIAL JUDGE (NDPS) / ADDL. SESSIONS JUDGE, (NORTH-EAST): KARKARDOOMA COURTS, DELHI [CASE NUMBER] /14 Case ID No. 02402R0078262014 Sh. ZIA-UL-HAQ S/o Late Sh. Ahsan Ali R/o. Vill. Chandpur, P.S. Pathri, PO Dhanpura, Haridwar, Uttranchal. Petitioner VERSUS (1) Smt. [ENTITY] W/o Sh. [ENTITY] D/o late Sh. Mehandi Hasan (2) Master Kaif (Minor) S/o Sh. [ENTITY] Through his mother / natural guardian Smt. [ENTITY] Both Resident of:- H. No. 851, Gali No. 30/3, Indra Chowk, Jafrabad, Delhi-110053. Respondents Date of institution : 13.03.2014 Date of reserving order : 10.10.2014 Date of order : 02.12.2014 ORDER
1. The petitioner has challenged the order dated 16.12.2013 in [CASE NUMBER] titled as '[ENTITY] & ors. v. Zia-Ul- Haq' under [SECTION] of the [ACT] (hereinafter referred as 'the [ACT]') directing the petitioner to pay Rs. 2,000/- per month to the respondent No. 1 and Rs.3,000/- per month to the respondent no. 2 (gross amount Rs. 5,000/- per month) as interim maintenance from the date of filing of the petition i.e. 02.03.2012.
2. I have heard Sh. [ENTITY], Advocate for the petitioner and Sh. [ENTITY], Advocate for the respondents no. 1 and 2 and examined the trial Court record.
3. Un-disputedly, the petitioner was married to the respondent no. 1 on 14.09.2005 according to their religious ceremonies. It is not in dispute that the respondent no. 2 was born from their marriage. The respondent no. 1 is residing separately since July, 2007. It is also not in dispute that the respondent no. 2 is in the care and custody of the respondent no. 1.
4. Ld. counsel for the petitioner submitted that the respondent no. 1 deserted the petitioner without any cause or reason. Ld. counsel for the respondent no. 1 submitted that the petitioner subjected the respondent no. 1 to physical and mental cruelty and she was turned out from her matrimonial house in July, 2007. He submitted that the stridhan of the respondent no. 1 has been wrongfully withheld by the petitioner.
5. There are allegations and counter allegations with which we are not presently concerned. It will be relevant to take note of the following observations of Hon'ble Delhi High Court in '[PRECEDENT]:
"2 The issue of conduct or misconduct of either spouse is irrelevant for the reason, in every proceedings for divorce, dissolution or judicial separation, there is bound to be some allegations or the other pertaining to matrimonial misconduct. Thus, if conduct or misconduct were to be considered, no spouse would get any interim maintenance under [SECTION]."
6. The case of the respondent no. 1 was that she is not employed anywhere. She is dependent upon her mother and brother. The respondent no. 2 is a specially abled child and he needs continuous medical attention. The petitioner is not providing her maintenance. The petitioner is an able bodied person and he is a thekedar. The petitioner is earning Rs. 25,000/- per month from his thekedari. The petitioner is also earning additional Rs.25,000/- per month from his mango groove. The petitioner is not discharging his statutory duty and therefore, a sum of Rs.30,000/- per month were claimed as maintenance.
7. The case of the petitioner was that he is not a man of means and resources. He is a petty farmer. He is barely earning Rs.5,000-6,000/- per month. He has no immovable property in his name except a share in the ancestral home and the agricultural land measuring 15 bighas. He is one of the 9 co- sharers in the said agricultural land. He is dependent on the agricultural income. The respondent no. 1 is a trained tailor. She has not disclosed her qualification and employment. She is working in a private company dealing in ready-made garments and earning not less than Rs.10,000/- per month. She is residing separately in a rented accommodation and bearing all the expenses. The petitioner has the responsibility to maintain his widowed mother, younger brother and sister as well as his second wife and a minor child.
8. Ld. trial Court after considering the pleadings of the parties and arguments of Ld. counsel of the parties to the lis, passed the following order:
"Since the petitioner No. 1 is the wife and petitioner No. 2 is the son of the respondent, the responsibility to maintain both of them is upon the respondent. Respondent has admitted that he receives agricultural income. He is admittedly also a co-sharer in the ancestral property as well as in the agricultural land measuring 15 bighas. Having regard to the nature of work in which the respondent is admittedly engaged, his monthly income can be presumed to be at least Rs. 10,000/- to Rs. 12,000/-. Petitioner No. 2 is admittedly a special child requiring special care and attention, treatment, medication etc. Having regard to the same and entirely of the facts of the present case as well as the status of parties, respondent is directed to pay Rs. 2,000/- per month as interim maintenance to petitioner No. 1 and Rs. 3,000/- per month as interim maintenance to the petitioner No. 2 (total Rs. 5,000/- per month to be paid by the respondent to the petitioners) from the date of filing of the present petition. Payment shall be made by the tenth of every month by money order or be deposited in the bank account of petitioner No. 1. Arrears should be cleared within six months. Nothing in this order shall tantamount to expression of opinion on the merits of the case which shall be decided during trial."
9. Ld. counsel for the petitioner has taken exception to the impugned order on the ground that the order was based on assumption and presumption.
10. The appellant has not placed on record any material from which his true income can be assessed. The appellant has even not stated as to what kind of crop or trees he is producing in his agricultural field. He has even not stated as to what is his annual income from his agricultural field and basis for arriving at the said annual income.
11. In his reply, the petitioner has admitted that he was earlier supplementing his income by ferrying would from the site to the factories. He stated that the said work is discontinued as felling of the trees has been restricted. The petitioner has even not stated what was his income from the said business and since when the said activity is discontinued.
12. In '[PRECEDENT]' (supra); Hon'ble Delhi High Court observed 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 the exception in this country.
19. As noted herein above, unfortunately, nobody pays proper taxes to the Government. Self employed persons seldom disclose their true income."
13. Ld. trial Court had no material before it except the pleadings of the parties and the medical record filed by the respondent No. 1 regarding treatment of the respondent No. 2. There is nothing on record that the respondent No. 1 is employed or has an independent income. The appellant has concealed his true income from the Court. In such facts and circumstances, the Court has to do some guesswork in order to assess monthly income of the appellant.
14. In '[PRECEDENT]; Hon'ble High Court of Delhi observed as under:
"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 [ENTITY] (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 and element of conjecture and guess work does enter for arriving at the income of the husband. It cannot be done by any mathematical precision."
15. The widowed mother and younger brother is not the responsibility of the petitioner. They are co-sharers in the ancestral home and agricultural field. They are entitled to receive their respective sharers therein.
16. The petitioner cannot avoid his liability towards the respondent No. 1 and 2 on the ground of his responsibility to maintain his second wife and minor child. The petitioner cannot take advantage of his wrongs. If the petitioner was unable to maintain himself and the respondents within his means and resources then he should not have contracted second marriage.
17. The petitioner has not challenged that the respondent No. 2 is a specially abled child. He needs regular medical attention. The respondent No. 1 is incurring all the expenses of his treatment.
18. The petitioner is legally bound to maintain the respondent No. 1 and 2. The respondent No. 1 and 2 are entitled to a decent living. The respondent No. 1 and 2 are entitled to ordinary comforts of life.
19. The amount awarded by Ld. trial Court cannot be termed excessive or harsh in any manner.
20. In '[PRECEDENT]' (supra); Hon'ble High Court of Delhi observed as under:
"6 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.
21. In the opinion of this Court, there is no infirmity in the impugned order and it is hereby affirmed.
22. The amount paid by the petitioner to the respondent No. 1 and 2 before this Court be adjusted in computation of payment of arrears of maintenance.
23. The criminal revision is dismissed.
24. No order as to cost.
25. Both the parties shall appear before Ld. trial Court on 15.12.2014 at 10.00 a.m.
26. A copy of this order be sent to Ld. trial Court alongwith trial Court record for information.
27. The revision file be consigned to Record Room.
Announced in the open Court [ENTITY] nd on this 2 day of December, 2014. Special Judge NDPS (N/E) ASJ/KKD Courts/Delhi.