HMA – (i)moveable property cant be termed as Income

CR 547/2001

Date of hearing :  13th January,2003
Date of Decision : 31st January 2003

SHAKTI PERSHAD……..Petitioner
Through : Mr. Y.P. Narula, Sr Advocate wit Neeraj Malhotra

Respondent: Ratna Pershad
Through : Ms. Seita Vaidialingam


Hon’ble Mr. Justice Mahmood Ali Khan, J.

1. In this civil revision petition filed under Section 115 of the CPC
the petitioner Shakti Pershad, who is husband, has assailed the order
of an Additional District Judge dated 25.2.2001 whereby he has
dismissed the application filed by the petitioner under Section 24 of
the Act but has allowed a similar application under Section 24 filed
by the respondent wife Ms. Ratna Pershad fixing her pendentelite
maintenance at Rs. 12,000/- per month besides awarding Rs. 10,000 as
expenses of the proceedings in a divorce proceedings instituted by the
respondent wife.

2. Briefly stated the facts are that Ms. Ratna, respondent, has filed
a petition for a decree of divorce against the petitioner Shakti
Pershad on the ground of cruelty under Clause (ia) of Section 13(1) of
the Hindu Marriage Act (the Act). She also filed an application for
grant of her pendentilite maintenance and an amount for meeting
expenses of the proceeding. In the application she alleged that she
does not own any movable or immovable property and has no independent
income to support her. She is financially dependent upon her parents.
Her jewellery was disposed of from time to time for meeting necessary
expenses at the behest of the petitioner husband. The petitioner
husband belonged to one of the Delhi’s richest families and was living
an affluent lifestyle. He was member of several clubs but he had no
money for the respondent wife, who was a mere housewife. She had to
sell her jewellery to meet expenses on her bread and butter and
expenses of her son. Both she and the petitioner were divorcees. She
had a daughter from her first marriage who was living with her while
the petitioner had two daughters from his first marriage but both of
them were living with their mother. After the marriage with the
petitioner she had given birth to a son in 1984 who was living with
her and she had to bear expenses of his education also. The son is at
present studying in 10th class in Vasant Valley School and both she
and the son are dependent upon his father. The petitioner was born in
a wealthy family. He had a house in a posh Friends Colony East and he
was a member of Gymkhana Club, Noida golf club and some other clubs.
He owns ancestral property in Chandni Chowk, Delhi. Some of these
properties have been sold by him and he had received huge amount as
sale consideration which is in his personal knowledge and he should be
directed to disclose it. He owns a two storeyed palatial house built
over an area of 1800 square feet bearing No. 45, Friends Colony East.
His mother sold an annexe building built on 800 square yards of land
for a consideration of over a crore. A part of the land in Friends
Colony was also sold to Unitech Builders for building flats and the
petitioner has received his share from the huge consideration. She
alleged that she was spending about Rs. 2,80,000 on the maintenance
and schooling of her son which is roughly about Rs. 27,000 per month.
This sum is being borrowed by her from her father. She has to repay
about Rs. 1.5 lakhs for the maintenance of her son since he was
abandoned by the respondent on 23.3.1999. She is not maintaining good
health. Her medical expenses, food and boarding will amount to at
least Rs,25,000 monthly on a modest estimate. She tires easily and has
to employ at least 2 female servants to nurse and look after her. The
petitioner had forced her into litigation and she needed minimum Rs.
50,000 in the first instance to meet in and out of pocket expenses and
charges. The court should direct the petitioner to pay Rs. 25,000 per
month for meeting the rent of the house for her in Delhi as a
temporary measure since her father would then be able to return back
to Hyderabad and carry on his consultancy business there as before.
She claimed that she had been paid Rs. 60,000 for her and her son’s
maintenance and besides the petitioner should also be directed to pay
Rs. 25,000 per month as rent of the premises to be taken by her for
her and her son’s residence. She also claimed Rs. 50,000 as expenses
of the proceedings. Further more she wanted Rs. 1.5 lakhs to be given
by the petitioner to enable her to return to her father who had
incurred the expenses on her and her son since they started living
separately from the petitioner.

3. In the application which the petitioner Shakti Pershad filed it was
alleged that after the marriage he had been giving all his attention
to the respondent and was spending huge sums of money on her
maintenance and treatment. He had provided best medical assistance to
her. The respondent wife is a woman of substantial means and has a
regular source of income. She is driving a Honda City car, has credit
cards, she is maintaining a cellphone and she is living a luxurious
and expensive life for which she is not dependent on anybody. The son
of the parties is staying with the petitioner and the respondent wife
should be directed to pay the expenses to him which she was claiming
in her application for the upkeep and the education of the son to him.
The petitioner was an old man of 55 years and he is unable now to
start a new business to sustain himself and his son. He has only one
property which he inherited from his father. It is built on 330 square
yards of land in New Friends Colony, East. The said property is
mortgaged against a loan which was taken by him from Bank of Punjab.
The bank has obtained an order of injunction against the alienation of
the said house against him in the recovery proceeding before the Debt
Recovery Tribunal. He himself and his son are both financially
dependent upon his mother who had inherited some wealth from his
father. He himself does not have any income since 1998. The industrial
unit set up was closed down because of financial loses. Its machinery
was hypothecated in favour of the bank. No money has been paid to the
bank against the outstanding loan. Over the years his wealth has
depleted, consequently, he is totally dependent on his mother. He does
not own any car or vehicle. He does not pay any tax He did not file
income tax return. He had been borrowing money from his friends and
relatives. He became member of Gymkhana club 30 years back and now he
owned a sum of Rs. 6000 to the club which he is not able to pay.
Similarly, he was indebted to Noida Golf club and has stopped going to
clubs. His residence telephone has also been closed due to non payment
of the telephone bill and the outgoing calls have been stopped. He is
not in a position to pay the legal expenses. His mother has taken upon
herself to bear the educational expenses of his son. His monthly
expenditure for running the household which included himself and his
son was Rs. 12,000. The monthly tuition fees of the son was Rs. 3000.
His son also needed Rs. 2500 per month which includes his private
tuition, pocket money, medical expenses, school uniform, stationary
books, entertainment and other like expenses. Because of his financial
incapability he is forced to borrow this money from his mother and
friends. He has to return the money. It is also difficult for him to
pursue the legal proceedings. Since the respondent wife is better of,
therefore, he has prayed that she should be directed to pay Rs. 12,000
per month as pendentilite maintenance for running the household and
Rs. 5500/- per month as interim maintenance for meeting the expenses
of his son etc.

4. The trial court after hearing the parties by the impugned order
held that the petitioner husband has failed to bring on record any
evidence suggesting that the respondent wife has income and that she
owned a car, a cellphone or had a credit card. On the other hand upon
consideration of the allegations made in the petition, the written
statement and the application and also the material placed on record
he held that the petitioner husband had income. He was spending lacs
of rupees on providing medical assistance and surgery of the
respondent, he was providing Rs. 50,000 as household expenses to the
respondent, he was providing all the luxuries to her, he himself was a
rich man. He owned property, he came from a very rich and affluent
family of Delhi. He had been selling the properties and was meeting
all the expenses from which it could be inferred that he had
sufficient income. In the totality of the facts and circumstances he
rejected the application of the petitioner and allowed that of the
respondent wife and fixing the pendentilite maintenance of the
respondent wife at Rs. 12,000 and also directed the petitioner to pay
Rs. 10,000 to her for meeting the expenses of the proceeding.

5. The petitioner is aggrieved and has filed the present petition.

6. I have heard the counsel for the parties and have gone through the record.

7. Counsel for the petitioner has strenuously canvassed that in the
divorce petition the respondent herself had averred that the
petitioner was not earning since 1994 and that he was disposing of the
property for running the household. It is submitted that the
respondent has further admitted in the divorce petition that the
petitioner had set up a factory in 1993 borrowing money from the bank
of Punjab which was closed down and the bank had filed proceedings for
recovery of money before the Debt Recovery Tribunal. She had admitted
that she was the guarantor to that loan. She also argued that the
petitioner, though member of Gymkhana club became its member 30 years
back and now he owed Rs. 6000 to it which he is not able to pay. He
has stopped going to Noida golf club because he could not bear the
expenses. He does not own a car, cellphone or credit card. He also
stated that he does have a dog in his house. But he is now totally
dependent upon his mother who had inherited some wealth from his
father who died in 1989. Counsel for the petitioner also argued that
interim maintenance could be paid to the husband and wife under
Section 24 of the Act having regard to the income of both the spouses.
It is urged in the instant case that it is the respondent’s own case
that the petitioner has no earning at all and that he is disposing of
his property to meet the expenses and if it is so the petitioner
husband could not be said to have “income” out of which he may be
required to pay the pendentilite maintenance to the respondent.
Moreover it is argued by her that the maintenance is payable to the
wife under Section 24 of the Act only when she does not have
independent income to support her. It is contended that the respondent
is leading a luxurious life. She owns a Honda City car, a cellphone,
credit cards and she is spending lavishly and therefore, her
contention that she does not have income is false.

8. Controverting the above arguments of counsel for the petitioner
counsel for the respondent stated that the respondent had no
independent income. She is entirely dependent upon her father who is
living in a rented flat. It is submitted that the petitioner has not
placed on record any evidence or other material to show that his
household expenses and the expenses of the child are being born of
petitioner’s mother. According to him the respondent is maintaining a
palatial house, running the household, maintaining a dog, emjoying
membership of clubs etc and he could not have done it with no income
accruing to him from any source. It was contended that the petitioner
who belonged to one of the richest business family of Delhi owned
properties which he was selling. He got money from the sale of land.
He also got money when his mother sold annexe house for over a crore
of rupees. It is, therefore, canvassed that the petitioner had income
and its source was in his special knowledge which he had not
disclosed, so the trial court was justified in passing the order of
maintenance in favour of the respondent.

9. Section 24 of the Hindu Marriage Act provides establishment of two
essential conditions to enable the court to pass an order of
pendentilite maintenance and award the expenses of the proceeding in
favour of the husband or wife. These are that the husband or wife does
not have independent income to support him/her and that the interim
maintenance and the expenses of the proceedings are to be fixed having
regard to the income of both the spouses. In the divorce petition the
respondent wife has indeed alleged that the petitioner husband is not
running any business. His factory has closed down. The bank from which
loan was taken for the factory had started proceeding for its recovery
before the Debt Recovery Tribunal. The money has not been paid. It is
further alleged by her that the petitioner had stopped giving her
money for meeting the household expenses since 1994. The petitioner,
however, in his reply has submitted that he did not have income since
1998. Certain more facts are worth noticing. The petitioner husband
belonged to a very rich family of Delhi. He owns ancestral property in
Old Delhi and also owned a big house in Friends Colony East. Anyhow
owning property itself will not make the petitioner saddle him with
the liability to pay the maintenance under Section 24. The petitioner
would be liable to pay if he has income. The word “income” used in
this Section 24 of the Act is of widest amplitude. The income may be
in cash or kind but it has to be an accrual from the movable or
immovable assets. It will definitely not include the immovable or
movable property itself. For instance the wages, salary, interest or
dividend, agricultural produce of a land, the fruits from fruit
bearing tree or orchard, the rent from the house etc will be income.
Section 24 uses the word “income” juxtaposed the words ‘income and
property’ used in Section 25 of the Act. The income and the property
or capital assets, as such, are not one and the same thing. A spouse
may own huge immovable properties of immense value but if there is no
yield or accrual of interest or rent they would not be reckoned for
calculating the amount of maintenance. But if the spouse has money in
its hand may be by the sale proceeds of any immovable or movable
property which he or she is using for meeting the personal expenses or
the expenses of the household then that could certainly be taken into
account. Shares or bonds may not be included in the term income but
what was yielded in the shape of dividend or interest would become
income. This view finds support from the judgment of the Calcutta High
Court in Gita Chatterjee Vs. Probhat Kumar Chatterjee, and Kerala High
Court in Hema Vs. S. Lakshmana Bhat,

10. In the backdrop of the above proposition of law now I may proceed
to consider as to whether the petitioner and the respondent had
income. The trial court had repelled the contention of the petitioner
husband that the respondent wife is a earning hand or has some source
of her income on which she is allegedly sustaining her luxurious life,
her car, credit card or cellphone etc. In fact apart from making a
hollow allegation that the respondent wife owned a Honda City car, a
cellphone or a credit card he has not been able to bring forth any
tangible proof to substantiate his allegation barring that in the year
1998 she had worked in the concern of her father and had earned income
for which she had submitted an income tax return. There is no
allegation or proof that before that or after that year she had
submitted the return. There is no proof that she was maintaining a car
or had a cellphone or the credit card which she is using. It is also
not denied that her father is living in a rented flat and the
respondent is presently staying with him there. It is also not denied
that her father was running some consultancy work in Hyderabad before
shifting to Delhi and that he was running some business here as well.
The oral allegation of the petitioner that the respondent is having
source of income to enable her to sustain and support herself,
therefore, had no proof. The contention of the petitioner husband was
rightly rejected by the trial court.

11. Adverting to the income of the petitioner husband, as stated
above, the respondent wife had made allegation in the divorce petition
that after the failure of the business in 1994 the petitioner husband
was not earning but was sustaining himself by selling the immovable
properties. The petitioner husband has himself stated that he belonged
to a very rich and affluent family. He had not denied that his family
owned large immovable property and houses. It is also not disputed
that his father had given him a built up house which he says is
standing on a large piece of land in New Friends Colony East. Disposal
of the properties by him for meeting the expenses has not been denied.
It is also not denied that he was member of Gymkhana club though
alleged that he had become its member 30 years back and still owed a
sum of Rs. 6000 to the club. He did not deny that he was also member
of Noida Golf club. According to him his son has now started residing
with him and he was spending Rs. 3000 on his school fees and another
sum of Rs. 5500/- on his other expenses. He also says that he was
maintaining the household expenses of Rs. 12000 per month by borrowing
money from his mother and other friends. He has a telephone. According
to the petitioner since 1998 he did not have income and that he was
only dependent upon his mother but he did not disclose as to whether
he had received his share from the sale of any of the ancestral
properties or the sale of the land to Unitech Builders or the sale of
the annexe building in New Friends Colony by his mother. He has also
not disclosed the names of his friends and relatives from whom he had
borrowed the money. Nor did he disclose the amount which his mother is
spending upon him. It may also be remembered that the petitioner and
his son are living in a separate house and they are not living with
the mother. How the petitioner is meeting the household expenses and
other expenses and maintenance of his son was also in his special
knowledge and he should have disclosed it. When the petitioner has not
truthfully come out with all this information the trial court was
perfectly justified in making some guess and estimate about the money
which he has and that he has some latent source of income which during
these hard days are sustaining him, the lifestyle to which he was
accustomed or a little less than that. But his living standard is not
reflective of any financial strain on him.

12. In terms of Section 24 of the Act the maintenance of the applicant
spouse whether he is a husband or a wife is to be fixed on a sum which
seems to be reasonable. There is no infirmity in the finding of the
learned trial court that the respondent wife does not have independent
source of income for her support. Conversely his finding that the
petitioner husband had some source of income which he has not
disclosed can also not be discarded since it is based on sound
principles of law in the facts and circumstances of the case.

13. According to the case of the petitioner he was accustomed to pass
a life of luxury. He was paying Rs. 50,000 to the respondent wife for
meeting the household expenses, she was also using credit card
provided by him and was spending upto Rs. 30,000 per moth. He was
spending thousands rather lakhs of rupees on her medical treatment and
surgery. The petitioner says that he now does not live the style of
his former life but the respondent wife is also entitled to live to
the standard of life which the petitioner is now leading.

14. Having regard to the above discussion and the facts and
circumstances of the case I do not find any jurisdictional error or
any material irregularity in the exercise of the jurisdiction by the
trial court when it fixed the interim maintenance of the respondent
wife at Rs. 12,000 per month and her expenses at Rs. 10,000. The
amount of pendentilite interest fixed by the trial court is
reasonable. In the totality of the facts and circumstances of the case
I do not find any merit in the petition. It is dismissed leaving the
parties to bear their own cost.

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