AMIT MALHOTRA V/s SUDHA [ACT] No. 491/10 15.01.2013 O R D E R:
1. Vide this order, I shall dispose off an application of the respondent/wife whereby she has sought interim maintenance U/[SECTION] of [ACT] for herself as well as the minor daughter of the parties @ Rs. 20,000/ per month, and besides she has also prayed for litigation expenses to the tune of Rs. 55,000/ lumpsum.
2. Parties were married on 27.02.2001 according to Hindu Rites and Ceremonies and one daughter was born out of the wedlock who is stated to be in the custody of the respondent/applicant. The main case wherein the present application has been filed by the wife, was filed by the husband to seek divorce on the ground of cruelty as U/[SECTION] of [ACT].
3. It has been alleged by the respondent/applicant that the petitioner/nonapplicant and his family members are greedy persons and they used to harass, humiliate and badtreated the respondent/applicant for dowry demands and she has further leveled several allegations on merits between the parties, which should be a matter to be proved at the trial.
4. As regards the aspect of interim maintenance, it is alleged that ever since on 29.09.2006, the nonapplicant/petitioner has never tried to find out the welfare/well being of the applicant/wife/respondent and their minor daughter baby [ENTITY] and failed to make any arrangement for their maintenance and even accommodation. The applicant/wife states that she has no movable or immovable property of her own, nor any source of income to support herself and her minor daughter, and to bear the expenses of the proceedings, due to which she is going through a very difficult time, being on the mercy of her parents for each and everything, while she claims that nonapplicant/petitioner is a government servant posted as a "Senior TNC" with Indian Railways and receiving a salary of more than Rs. 35,000/, besides perks and facilities. Further alleged that petitioner/nonapplicant has also invested a lot of amount in various FDRs, shares, debentures etc. where from he is getting interest @ Rs. 10 to 15,000/ per month.
5. It is claimed by the applicant/wife that the petitioner/non applicant/husband is leading a luxurious "Princely" life style and enjoying all kinds of amenities. The minor daughter of the parties is school going and petitioner/nonapplicant has intentionally neglected to maintain her even and to pay her educational expenses. According to the applicant/wife there is no other financial liability on the petitioner/nonapplicant except to support and maintain the applicant and their minor daughter and she being the legally wedded wife, the petitioner/nonapplicant is bound to maintain and support them. Hence the amount of interim maintenance as prayed.
6. The said application is accompanied by a supporting affidavit and also the applicant/wife has filed a detailed affidavit in compliance of the directions of the Court under the guidelines of Hon'ble High Court issued in a case [PRECEDENT] in [CASE NUMBER], wherein on the detailed affidavit as well, she has denied having any kind of source of income for herself and for the minor child. The school expenses of the child are stated to be Rs. 60,000/ per month and reliance is placed on the school slip, besides the applicant/respondent admits to having a LIC Policy and medical claim, the premium of which is, however, being paid by her parents as claimed by the applicant/respondent. The child is stated to be studying at St. Martyn School.
7. Though the respondent filed the present petition seeking divorce, ever since the present application came to be filed, and the same had been adjourned for reply and for filing a detailed affidavit as per the order dated 12.12.2011, the petitioner though he appeared once in person, he failed to file any reply to the application and even the detailed affidavit directed by the Court. However, one more opportunity was extended for the purpose subject to terms, but thereafter, petitioner stopped appearing and more importantly, he avoided to file any reply or affidavit to the said application even till 04.06.2012.
8. Accordingly, the petitioner/nonapplicant was proceeded exparte on this application and arguments were heard on the application on behalf of the applicant/respondent, exparte.
9. The respondent/applicant even filed an additional affidavit wherein she filed documents like the school fee card, certificate of conveyance, copy of treatment bills of her daughter and also copy of a reply stated to be the reply to a query made under [ACT]. Since the petitioner/nonapplicant has failed to deny his own job, his post held as claimed by the respondent/applicant, the petitioner/nonapplicant is deemed to have admitted the same and same would be the position with regard to the salary, he is alleged to be receiving. Since the petitioner/nonapplicant has not bothered to contest the interim application, and in fact, he has preferred to stay away from the proceedings of his own case as filed by him, it can be easily inferred that the petitioner/nonapplicant has no defence to the claim of the respondent/applicant for maintenance.
10. Even otherwise, the respondent/applicant has filed the detailed affidavit alongwith the accompanying documents.
11. The first document being a copy of a certificate issued by "Divya Travels" stating the conveyance expenses To and Fro of the school as being Rs. 500/ per month, besides there are some medical papers, photocopies showing that the minor child was admitted to Maharaja Agrasen Hospital showing medical expenses to the tune of Rs. 13,706/, besides also the school fee card.
12. Taking into account the circumstances that the petitioner/non applicant has not even bothered to contest the application and not even to file even a reply, the claim of the respondent/wife/applicant regarding the income of the petitioner/nonapplicant/husband is deemed to be admitted as correct.
13. In [PRECEDENT], this court laid down the following principles for fixing the maintenance under [SECTION] of the [ACT]:
4. Right to maintenance is an incident of the status from 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] of [ACT] goes a step further in as much 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 the 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 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.
8. Unfortunately, in India, parties do not truthfully reveal their income. For self employed person 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 applicant under [SECTION] of [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. Nonapplicant's liabilities, if any.
7. Provisions for food, clothing, shelther, 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 are not disclosed.
10.The non applicant to defray the cost of litigation.
11.The amount awarded under [SECTION] [ACT] is adjustable against the amount awarded under [SECTION] of Act.
14. In [PRECEDENT], this court laid down the factors to be taken into consideration for ascertaining the income of the spouse. The relevant portion of 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 the represented in judicial proceedings. It 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 [ENTITY] 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 [PRECEDENT] has culled out 11 factors, which can be taken into consideration for deciding the application under [SECTION] of [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 [ENTITY] (Smt) (supra), has also recognized the fact that spouses n the proceedings for maintenance do not truthfully disclose their true income and therefor some guess work on the part of the Court is permissible. Further the Supreme Court has also observed that "considering the diverse claim 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 factor, which are to be considered in quessing the income of the spouses, but the order based on guess work cannot be arbitrary, whimsical or fanciful. While guessing the 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 of motor vehicles;
(v) Household facilities;
(vi) Facility of driver, cook and other help;
(vii) Credit Cards;
(viii) Bank Account details;
(ix) Club membership;
(x) Amount of Insurance Premium paid;
(xi) Property or properties purchased;
(xii) Rental income;
(xiii) Amount of rent paid;
(xiv) Amount spent on travel / holiday;
(xv) Locality of residence;
(xvi) Number of mobile phones;
(xvii) Qualification of spouse;
(xviii) School(s) where the child or children are studying when parties were residing together;
(xix) Amount spent on fees and other expenses incurred;
(xx) Amount spend on extracurricular activities of children when parties were residing together;
(xxi) Capacity to repay loan.
15. Going by the income of the petitioner/nonapplicant stated as Rs. 35,000/ per month and taking into account his post, undisputed, also the fact that he has no other liabilities except to maintain the respondent/applicant/wife and their minor daughter being the only legal and moral liabilities of the petitioner/nonapplicant/husband, in view of the well settled principles of law with respect to interim maintenance, applicant/respondent and her minor child, are together held entitled to an interim maintenance @ Rs. 12,000/ per month to be shared between them in the equal share of 50% each, besides to one time litigation charges to the extent of Rs. 11,000/ lumpsum. The order of interim maintenance would be effective from the date of the filing of this application.
Application disposed off.
ANNOUNCED IN THE OPEN COURT ([ENTITY]) TODAY i.e. ON 15TH JANUARY, 2013 ADJ:WEST: [ENTITY]