Shweta Talwar vs Ritesh Kumar Talwar on 21 September, 2017

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FAO-4895-2016 (OM)
FAO-5366-2016 (OM)

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

Date of Decision: 21st September, 2017

CM Nos. 16703-16704-CII of 2016,
CM Nos. 4539-4540-16044-16045-
17970-CII of 2017 IN/AND
FAO-4895-2016

Shweta Talwar
…Appellant
Versus
Ritesh Kumar Talwar
…Respondent
(2)

CM-18453-CII-2016
IN/AND FAO-5366-2016
Ritesh Kumar Talwar
…Appellant
Versus
Shweta Talwar
…Respondent

CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI
HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH

Present: Mr. Trideep Pais and
Mr. Munish Garg, Advocates
for the appellant in FAO-4895-2016 and
for the respondent in FAO-5366-2016.

Mr. Prashant Mendiratta, Mr. Vikas Thakur and
Mr. Vivek Singla, Advocates
for the respondent in FAO-4895-2016 and
for the appellant in FAO-5366-2016.

*****
AUGUSTINE GEORGE MASIH, J.

CM-16703-CII-2016
IN FAO-4895-2016

Prayer in this application is for condonation of delay of 44 days

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FAO-5366-2016 (OM)

in filing the main appeal.

Notice of the application was issued on 24.08.2016 but no reply

to the same has been filed on behalf of the non-applicant/respondent.

For the reasons mentioned in the application, the same is

allowed. Delay of 44 days in filing the appeal stands condoned.

CM-16704-CII-2016
IN FAO-4895-2016

Notice in this application was issued on 24.08.2016 but no

reply to the same has been filed.

For the reasons mentioned in the application, exemption is

granted from filing certified/typed copies of Annexures P-1 to P-46 and the

same are taken on record, subject to all just exceptions.

Application stands disposed of.

CM-4539-4540 CII-2017
IN FAO-4895-2016

Prayer in these applications is for exemption from filing

certified/typed copies of Annexures P-47 to P-51 and to place on record the

said annexures as additional evidence.

Notice in these applications was issued to the respondent on

06.03.2017 but no reply to these applications has been filed, rather, counsel

for the non-applicant/respondent has not objected to the reference of the

said documents made by the counsel for the applicant/appellant at the time

of arguments. Therefore, we are satisfied that the said documents may be

taken on record as additional evidence.

The applications stand allowed.

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FAO-5366-2016 (OM)

CM-17970-CII-2017
IN FAO-4895-2016

Prayer in this application is for adducing additional evidence

and to place on record Annexures A-55 to A-57.

Notice to the application to the counsel opposite. Counsel for

the non-applicant/respondent accepts notice.

After considering the averments made in the applications, we

are satisfied that the said documents may be taken on record as additional

evidence.

The application stands allowed.

CM-16044-CII-2017
IN FAO-4895-2016

Exemption is granted from filing certified/typed copies of

Annexures A-52 to A-54 and the same are taken on record, subject to all

just exceptions.

Application stands disposed of.

CM-16045-CII-2017
IN FAO-4895-2016

Prayer in this application is for taking into consideration

Annexures A-52 to A-54 as additional evidence.

Notice in this application was issued to the respondent on

01.08.2017 but no reply to this application has been filed, rather, counsel for

the non-applicant/respondent has not objected to the reference of the said

documents made by the counsel for the applicant/appellant at the time of

arguments.

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Therefore, we are satisfied that the said documents may be

taken on record as additional evidence.

The application stands allowed.

FAO-4895-2016
FAO-5366-2016

In a divorce petition filed under Section 13 of the Hindu

Marriage Act (hereinafter referred to as ‘HMA’) by Ritesh Kumar Talwar

(hereinafter referred to as ‘husband’), an application under Section 24 read

with Section 26 of the HMA was filed by Shweta Talwar (herein referred to

as ‘wife’) claiming therein maintenance pendente lite for herself and their 3

years 6 month’s minor daughter Mannat Talwar at the rate of `1,73,085/-

per month as interim maintenance legal expenses and reimbursement of

`1,27,000/- for the expenses incurred as salary for domestic help and dental

expenses, which was partly allowed vide order dated 21.05.2016 passed by

the District Judge, Family Court, Gurgaon, granting her maintenance

pendente lite at the rate of `75,000/- per month, which includes `37,000/-

per month being received by the wife pursuant to the order passed by the

Court in a petition filed under the Protection of Women from Domestic

Violence Act, 2005, out of which, `27,000/- has to be paid towards rent and

`10,000/- towards the education expenses of the minor daughter.

2. Aggrieved by the said order, both wife and husband have

preferred separate appeals i.e. FAO No. 4895 of 2016 and FAO No.5366 of

2016 respectively. Since the order impugned in both these appeals is

common, therefore, they are being clubbed together for decision and are

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being disposed of by a common order.

3. The brief facts essential for decision of these appeals are that

the parties got married on 16.01.2011. Out of the matrimonial alliance, a

female child namely Mannat Talwar was born on 28.10.2012 at Harlow,

England. The child at present is in custody, care and control of the wife.

As a matter of fact, this is husband’s second marriage as the first marriage

ended in divorce by mutual consent. The parents of the husband gave a

matrimonial profile and a meeting was arranged and attended by the parents

and the relatives. The husband disclosed his nature of business being carried

out by him in United Kingdom and that he was running a company by the

name of High Speed Shipping Ltd., which was floated in the month of

November, 2009 doing business of cargo and freight forwarding. He

informed that he was not required to be personally present in United

Kingdom to run the day to day affairs and had flexible working hours. It

was disclosed as per the wife that he had an income of approximately `1

crore per annum. On the agreement of the families, the marriage took place

after the Roka ceremony. They had been, off and on, going out of the

country but ultimately moved to England where the female child was born.

4. Even as late as April, 2014, the husband was a holder of 49% of

shares in another company namely Neoworld Ltd. and was entitled to

shareholder’s funds. Initially, they were residing in a one bedroom

apartment, which was on rent. Thereafter, they moved to two bedroom

apartment with a big dining hall and a large garden with a fixed parking

space, which was on a rent of approximately £900/- (at present around

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`91,600/-) per month. Thereafter, they shifted to another apartment at an

approximate rent of £950 per month. Staying there till September, 2013,

they moved to Singapore as the husband wanted to pursue a new business

opportunity. Ultimately, they moved back to India in 2014.

5. The husband, as per the wife, was having assets of more than

`1.65 crores (of the Wellington flat) and around `1 crore (flat in Sector 89,

Gurgaon) to name a few and owned luxurious cars. She was only earning a

gross salary of around `37,000/- per month, which earning also she has lost

as she has been terminated by the employer and as of now, she is without

any mean. Unfortunately, in February, 2015, the husband abandoned the

wife as also their minor daughter taking away even the vehicles leaving her

alone to struggle and fight for herself with the minor daughter. The

husband had abandoned her and has not provided any accommodation or a

car nor is he paying any expenses. Even the stridhan articles have not been

returned, which are approximately valued at `20,00,000/-.

6. The parties have been living and maintaining a high middle

class status as is apparent from the pleadings, which factum has not been

disputed. It has been asserted by the wife that Sector -89, Gurgaon, flat has

been transferred by the husband in the name of his mother in April, 2015,

which has further been sold for an amount of `90,00,000/- without giving

any share to the husband. Further, 45% share in the three bedroom house in

Wellington Estate, DLF Phase-5, Gurgaon, which was valued at `1.65

crores has been transferred by the husband in the name of his sister on

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17.11.2014. These transfers have been given effect to with an intention to

depict that he has no property and to deny the wife and the child their due as

well as maintenance. Details of the bank accounts have been given but it

has been asserted by the husband that they stand closed. Wife has also

asserted that the husband has manipulated the bank accounts and window

dressed them with an intention to deprive her the due especially by

removing her name from all documents of the companies projected himself

being the owner and the sole shareholder of the various companies. With an

intention to conceal his income, he has projected himself as an employee of

the company. As a matter of fact, the husband is earning a huge amount and

that too, in pounds after he had moved back to England in the year 2016, as

per the statement of the husband himself, and is in a position to pay the

amount of maintenance pendente lite and other expenses as claimed.

7. It has been prayed in the light of the above that the impugned

order passed by the Court below cannot sustain and deserves to be modified

by enhancing the amount of maintenance and litigation expenses, as the

Court has failed to appreciate true income of the husband while granting

`75,000/- per month as maintenance pendente lite and further adding

therein the amount granted under the proceedings initiated under the

Protection of Women from Domestic Violence Act, 2005, i.e. `37,000/- per

month.

8. On the other hand, so far as the matrimonial aspect and the

birth of a female child etc. are concerned, the same have not been disputed

by the husband. However, it has been asserted that although, initially, he

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was doing well in the business and was earning handsomely but the

business virtually failed and his company High Speed Shipping Ltd. had

gone in insolvency, which proceedings began on 06.09.2012 resulting in its

dissolution on 05.07.2013. There is no share holding or directorship in

Neoworld Ltd. as has been asserted by the wife. He indeed was offered

share of 49% on 08.04.2013, which he returned on the very next day i.e.

09.04.2013. That being so, on closing of the business in United Kingdom,

he had come back to India and was staying here till 2016. Since he had

always been working in United Kingdom with regard to carrying and

forwarding of freight business, he was unable to get a suitable job in India,

because of which, he had to again move back to United Kingdom in May,

2016 to start work as an independent freight carriage agent with an annual

income of £11,000/- per annum, which is about £900/- per month, which

come to `75,000/- per month. Annual tax returns submitted by the husband

in United Kingdom Tax Office, have also been filed in compliance with the

order passed by this Court indicating the said income. The husband,

therefore, asserts that the order which has been passed by the Court below

cannot sustain and deserves to be set aside as he is unable to pay the amount

of maintenance pendente lite as awarded.

9. Counsel for the parties have argued their cases and made

submissions as have been recorded above asserting and pointing out the

flaws in the impugned order with an intention to justify their respective

appeals. They have also referred to the pleadings and the various

documents, which have been placed on record.

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10. We have considered the submissions made by the counsel for

the parties and with their able assistance have gone through the records of

the case.

11. Hon’ble Supreme Court in Jasbir Kaur Sehgal Vs. District

Judge, Dehradun and others 1997 (7) Supreme Court Cases 7 has

observed that no set formula can be laid for fixing the amount of

maintenance and depends upon the facts and circumstances of each case.

Consideration can be given to the status of the parties, their respective

needs, capacity of the husband to pay, sources of income and the properties.

The amount of maintenance to be fixed for the wife should be such that she

can live her reasonable and comfortable life considering her status and the

lifestyle, which she is used to and had been enjoying with her husband. The

court has also proceed to hold that the maintenance should be such that she

does not feel handicapped in the prosecution of her case. However, the said

amount should not be excessive or extortionate. The Court has discretion in

the matter to form an opinion on the basis of facts and circumstances of the

case.

12. In yet another case, Hon’ble Supreme Court in Vinny Parmvir

Parmar Vs. Parmvir Parmar, 2011 AIR SC 2748 , while dealing with the

grant of maintenance has observed that the income of both the spouses and

the other property are relevant material in addition to the conduct of the

parties and other circumstances of the case including the living standard.

The status of the parties, their respective needs, the capacity of the husband

to pay, having regard to reasonable expenses for his own maintenance and

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others whom he is obliged to maintain under the law and statute would be

the relevant factors. The amount of maintenance fixed for the wife should

be such as she can live in reasonable comfort considering her status and

mode of life she was used to when she lived with her husband. This is

followed by a word of caution that the amount so fixed cannot be excessive

or effect the living condition of the other party.

13. Hon’ble Division Bench of the Delhi High Court in Radhika

Narang others Vs. Karun Raj Narang another, ILR 2009 (III)

Delhi 542, after considering the various judgments passed by the Courts

concluded as follows in paras 26 and 27:-

“26. Thus, after considering the above position of law, it

is evident that the following principles emerge from the

above judgments:-

a. Maintenance depends upon the summation of all

the facts of the situation [as laid down in Dr.

Kulbhushan Kunwar vs. Raj Kumari AIR 1971 SC

234].

b. For granting maintenance, the scale and mode of

living, the age, habits, wants and class of the life of the

parties has to be regarded [as laid down in Dr.

Kulbhushan Kunwar vs. Raj Kumari (supra)].

c. Maintenance being such that the wife could live in

a reasonable comfort; considering her status and mode of

life which she was used to while living with her husband

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[as laid down in Jasbir Kaur Sehgal vs. District Judge,

Dehradun and Ors. 1997 (7) SCC 7 ]

d. During the pendency of the suit for maintenance,

which may take a considerable time to attain finality, the

wife cannot be forced to face starvation till she is

subsequently granted maintenance from the date of the

filing of the suit [as laid down in Neelam Malhotra vs.

Rajinder Malhotra and Ors. AIR 1994 Delhi 234 ].

e. Maintenance must necessarily encompass a

provision for residence. Maintenance is given so that the

lady can live in the manner, more or less, to which she

was accustomed. [as laid down in Komalam Amma Vs.

Kumara Pillai Raghavan Pillai and Ors. SLP (C) No.

3670/2005 decided on 14th November, 2008]

f. Maintenance, necessarily must encompass a

provision for residence. Maintenance is given so that the

lady can live in the manner, more or less, to which she

was accustomed. The concept of maintenance must,

therefore, include provision for food and clothing and

the like and take into account the basic need of a roof

over the head. [as laid down in Mangat Mal v. Punni

Devi (1995) 6 SCC 88]

g. Maintenance must vary according to the position

and status of a person. It does not only mean food and

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raiment. [as laid down in Maharani Kesarkunverba v.

I.T. Commissioner, AIR 1960 SC 1343].

27. The purpose of providing maintenance, in our

view, is thus meant to secure to a wife/spouse claiming

maintenance, as far as possible, the status and facilities

enjoyed by her prior to her separation from her husband

when her maintenance claim is finally determined. The

determination of maintenance not being governed by any

rigid or inflexible rule gives wide power and discretion

to the Court to do justice.”

14. What is apparent from the pleadings and the documents on

record is that the parties to the lis had been and used to and maintain a

lifestyle which ordinarily is of the upper middle class, if not a high class.

The parties had been residing in United Kingdom after the marriage and had

been living comfortable rather lavish life enjoying various visits and

holiday trips in different destinations apart from the other worldly material

luxuries. Even back in India in the matrimonial home, the wife has not only

been living a very comfortable life rather a lavish lifestyle which has been

provided and maintained by the husband. Obviously, they are used to such

a life with good accommodation in posh colonies with luxury vehicles to

travel and sitting and enjoying the high class society, as is apparent from the

fact that they were members of expensive high-end clubs, where they had

been going quite frequently rather regularly.

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15. It is true that the wife and the husband are both educated but

unfortunately, the wife has lost her job as is apparent from her termination

order, which has been placed on record. As of now, she is unemployed and

therefore, is at the mercy of her parents. As per the various judicial

pronouncements, the responsibility and the liability is of the husband. The

husband cannot shirk away from this responsibility of maintaining the wife

and the minor daughter when it appears that he has not correctly disclosed

his income and has, rather, tried to window dress the bank accounts in such

a manner as to indicate and depict that he has meager source of income. It

also appears that he has transferred his assets in the name of his mother and

sister with an intention to deny the wife and minor daughter their due as no

clear explanation is coming forth in this regard. In this matter, the husband,

it appears, with an intention to deny maintenance to the wife and daughter,

has virtually abstained from working with a mala fide intention just to deny

them of their right. This is apparent from the income tax returns, which

have been placed on record. With passage of time, the values, rich culture

and heritage, which this country and its people have always been proud of,

have eroded and are further eroding. Truth, as a virtue, lost its primacy and

is no more being followed especially where relations between the husband

and wife turned sour and especially in cases, where business is a vocation.

Normally, the correct income is not disclosed and it is shown as nil or

meager. The income tax returns, therefore, cannot be taken to be the gospel

truth and thus, cannot be treated to be the basis for coming to a conclusion

that the husband is not earning enough to pay the maintenance as has been

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assessed by the Court below, which would require and mandate reduction

thereof. A person, who has approached this Court not with clean hands,

cannot expect sympathy from the Court and rather draw an adverse

inference against him about his income.

16. In the light of the above, when the factors/principles as settled

by the Courts and stated in the earlier part of the order are applied to the

facts of the present case and are taken into consideration, it is apparent that

the wife and the minor daughter are entitled to a reasonable sum of

maintenance, which should commensurate with the needs and requirements

for living, if not high middle class lifestyle, at least an upper middle class

lifestyle.

17. The husband has enough means from different sources of

income including property both moveable and immovable to pay

maintenance to the wife and the minor daughter and all through his effort

has been to try and to deny their dues with an intention to harass them

because of the relations being no more cordial. This is apparent from the

fact that he had transferred one of his flats in the name of his mother and the

other flat (his share) in the name of his sister. Further, no explanation is

forthcoming with regard to the fate/utilization of the amount, which,

admittedly, had been received by him on the winding up of High Speed

Shipping Ltd. on 05.07.2013, which was the sole ownership of the husband.

Factually, the amount received by him after paying the debts in full in his

bank account is £344008/-, which comes to `2,95,67,487/- approximately,

out of which, the amount for distribution to the shareholders comes to

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£3,01,764.82/- i.e. `2,50,31,391.89/- and he being the sole

shareholder/owner, the whole amount was at his disposal.

18. Therefore, we are of the considered view that the maintenance

as has been granted by the trial Court vide impugned order dated

21.05.2016 is just and reasonable and therefore, does not call for any

interference by this Court especially keeping in view the fact that the

income of the husband would not be less than `2,50,000/- per month by all

conservative standards as the husband has not disclosed his bank details and

has merely produced his tax returns, which have been submitted in England

and the income disclosed therein is difficult to believe.

19. However, with regard to the claim of the wife for the grant of

litigation expenses, learned trial Court has not granted anything to her. We

are of the considered view that she is entitled to the litigation expenses also

and therefore, grant her a sum of `50,000/- on account of litigation

expenses.

20. It would not be out of way to mention here that in FAO

No.5366 of 2016 preferred by the husband, this Court while issuing notice

of motion on 21.11.2016, had directed the husband to pay a sum of

`50,000/- per month towards maintenance till the disposal of the appeal.

Since the appeal has been decided by dismissing the same, the arrears of

maintenance alongwith the litigation expenses be paid to the applicant-wife

(Shweta Talwar) within a period of three weeks from the date of this order.

21. FAO No.4895 of 2016 preferred by Shweta Talwar (wife) is

partly allowed whereas FAO No.5366 of 2016 preferred by Ritesh Kumar

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Talwar (husband) is dismissed with no order as to costs.

22. It is made clear that any observation made herein shall have no

bearing on the merits of the case as these are meant only for the purpose of

decision of the present appeals.

CM-18453-CII-2016
IN FAO-5366-2016

In the light of the dismissal of main appeal i.e. FAO-4895-

2016, the prayer made in the present application for staying the operation of

the impugned order has been rendered infructuous.

Disposed of as such.

(M.M.S. BEDI) ( AUGUSTINE GEORGE MASIH )
JUDGE JUDGE

21st September, 2017
Harish
Whether speaking/reasoned: Yes/No

Whether Reportable: Yes/No

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