Civil Revision No. 4461 of 2009 -1- *** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 4461 of 2009 Date of decision: 22.2.2010 Sanjay Madan ....Petitioner Versus Raunika Madan ...Respondent CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. Arun Palli, Senior Advocate with Mr. Tushar Sharma, Advocate for the petitioner Mr. M.S.Sachdeva, Advocate for the respondent. S. D. ANAND, J. It is beyond the pale of controversy that the warring spouses who are parties to the present cause, did agree as under in the proceedings under Section 125 of the Cr.P.C. The petitioner-husband agreed to pay Rs.15,000/- per month to the respondent-wife with effect from 1.9.2006 for her maintenance. That amount was payable by cheque by or on the 10th day of every month. It was further agreed that the petitioner-husband shall pay all expenses for the educational upkeep of the only child of the parties who is putting up with the respondent-mother and was on the rolls of Mayor World School, Jalandhar (a day boarding institute). The petitioner-husband had also agreed that “all expenses qua of his education, maintenance and other needs shall be borne by the respondent”. He had further agreed to pay up that if there were any Civil Revision No. 4461 of 2009 -2- *** other expenses “reasonable and adequate for the welfare of Master Sikander Madan w.e.f. Ist November, 2006” The petitioner had further agreed to pay “a sum of Rs.5000/- per month as pocket expenses for Sikander Madan which will be given to guardian mother”. The petitioner husband had agreed to bear “all educational expenses of Sikander Madan.........till the time Sikander Madan is not independent, economically and financially sound”. It was also agreed that the “all other additional reasonable and adequate expenses per month/otherwise.” shall be borne by him. It was also agreed that if the only child of the parties was able to obtain admission into Pathway (Boarding School, Gurgaon), the petitioner husband “will bear all education expenses of boarding, lodging and education at Pathway School, Gurgaon ”. In continuity of that item, it was agreed that if the child got admission into Pathway School, then his mother will be given “an additional sum of Rs.10,000/- (Ten thousand) per quarter/every three month towards visiting expenses apart from Rs.15,000/- as stated above settled for maintenance per month” Besides it, the parties gave themselves visitations rights on holidays and vacation at the school. The compromise also had the following clause 'g' in the documented terms and conditions thereof “That both the parties shall have a right to continue with their legal proceedings in addition to or in continuation of this compromise.” It was thereafter that the respondent-wife filed a plea under Section 24 of the Hindu Marriage Act (hereinafter referred to as “the Act”) in the course of the trial of the petition under Section 13 Civil Revision No. 4461 of 2009 -3- *** of the Act which the petitioner-husband had filed for obtaining dissolution of marriage. In allowance of that application, the learned Trial Judge held that the respondent-wife was entitled to total maintenance at the rate of Rs.30,000/- per month and that she shall also be entitled to litigation expenses of Rs.15,000/-. It was, however held by the learned Trial Judge that the amount already awarded to the respondent-wife in the proceedings under Section 125 Cr.P.C. shall be set off against the amount awarded to the respondent-wife under Section 24 of the Act. The petitioner-husband is in revision against that order granted by the learned Trial Judge. In an act of resistance to challenge the very maintainability of the petition, the learned counsel for the petitioner argues that the respondent-wife, having consensually agreed to accept a sum of Rs.15,000/- per month as maintenance pendente-lite could not validly raise another plea for award of maintenance in the divorce proceedings by resort to an application under Section 24 of the Act. The plea was resisted by the learned counsel appearing on behalf of the respondent-wife who argued that the consented fixture of maintenance does not disable a wife from raising a plea for the award of higher maintenance in the proceedings under Section 24 of the Act. Reliance, in support of the argument was placed upon Shri Rajiv Chanana Vs. Smt. Gauri Chanana 2009 (3) Civil Court Civil Revision No. 4461 of 2009 -4- *** Cases 469 (P&H). The plea raised on behalf of the respondent is misconceived. It is apparent from the perusal of the judgment in Rajiv Chanana's case (supra) that the consented fixture in the course of the proceedings under Section 125 Cr.P.C. in that case was of interim character. However, in the present case, the 'interim character' of the consensual arrangement is conspicuously not available in the documented compromise. The fact that the parties had agreed to the inclusion of clause 'g' quoted in the course of this order would also be supportive of view obtained by me. Thus, I have no reservation in holding that there is nothing which impedes the way of the respondent-wife in filing a plea under Section 24 of the Act against the husband in order to be able to claim enhanced amount of maintenance pendente-lite. However, that does not solve the riddle for the respondent-wife. Though, there is plethora of material on the file to prove that the petitioner-husband has much more income as compared to the income averred by him, the wife also appears to be fairly well placed insofar as the financial status is concerned. If the petitioner-husband is a hotelier and is spending a sum of Rupees about 6 lacs on the educational upkeep etc. of the only child of the child of the parties, it cannot be wished away that the petitioner- husband had made specific averment in the course of the reply (to the application under Section 24 of the Act) that the property presently in the name of the respondent-wife fetches her adequate income. In that context, the relevant averments made by the petitioner in the course of the reply to the application under Section Civil Revision No. 4461 of 2009 -5- *** 24 of the Act are extracted hereunder:- “She is a partner in the building named AXIS and its ground floor has been rented out to Geetanjali Life Style Jewellers on a rent of Rs.5 lakhs and its first floor has been tended out to Barklay Bank at a rent of Rs.4 lakhs p.m. and the 3rd floor has been rented out to VFS Globals with rent of Rs.3 lakhs and 4th floor has been rented out to Reliance Mutual Fund on payment of Rs.1.5 lakhs as rent and part of the 4th floor has been rented out to Gears India on rent of Rs.1.5 lakhs and as such petitioner being 1/6th share holder of the AXIS is earning Rs.2 lakhs p.m.” There is nothing on record to indicate that the averment aforementioned, which have a direct and relevant bearing on the adjudication of the controversy qua quantification of the income accruing to the respondent-wife, were rebutted by her by filing a rejoinder. The least that could be done by the respondent-wife was to file a rejoinder and have her say in the context of the above quoted averments made by the petitioner-husband. Insofar as the averment made by the wife qua the agricultural income of the petitioner-husband is concerned, the latter denied owning any agricultural holding and no documentation was placed on record by the respondent-wife to falsify that denial. It is, thus, apparent that both the parties are in a financial sound condition and are understating their annual income. In view of the common observed tendency, despicable though on the part of the income tax assessee to understate their income, it become difficult for the Civil Revision No. 4461 of 2009 -6- *** Courts to exactly quantify their financial capability in the context of quantifying the amount of maintenance pendente-lite. However, in the present case adjudicatory endeavours does not get impeded in view of the plethora of material obtaining on the file to prove that both the parties are financially sound and the respondent-wife is, in terms of a consensual arrangement, getting quite a reasonable sum for maintenance for herself and the petitioner-husband is also providing for the educational upkeep and also other expenditure to be incurred upon the only child of the parties. In the light of foregoing discussion, the petition shall stand allowed. The impugned order dated 25.5.2009 shall stand invalidated. The wife and the only child of the parties shall, obviously, continue to be recipient of the financial benefits in terms of consensual arrangement documented in the course of proceedings under Section 125 Cr.P.C. Disposed of accordingly. February 22, 2010 (S. D. ANAND) Pka JUDGE