Sambit Mallick vs Leena Mallick on 11 October, 2017

217 CM-23468-CII-2014 and
CMM-167-2015 in
FAO-5216-2010

SAMBIT MALLICK
V/S
LEENA MALLICK

Present: Mr. Ajaivir Singh, Advocate,
for the appellant.

Mr. Animesh Sharma, Advocate,
for the respondent.

*****

The appellant-husband has filed this appeal against the order

passed by the lower Court declining the decree of divorce to him against the

respondent-wife. The appeal was filed in the year 2010.

During pendency of the said appeal, application under Section

24 of the Hindu Marriage Act was filed by respondent-wife on 21.09.2015

for grant of maintenance pendente lite at the rate of Rs.50,000/- per month

claiming that the applicant/respondent-wife is maintaining minor child born

out of the wedlock who is studying in a reputed school i.e. Scottish High

International School, Gurgaon where the school fee is about Rs.21,000/- per

month. It has been averred by the applicant/respondent-wife that during

pendency of the divorce petition before the lower Court, she had filed an

application under Section 24 of the Hindu Marriage Act and had also

claimed maintenance under the Protection of Women from Domestic

Violence Act, 2005 wherein a sum of Rs.7,000/- was awarded to the

applicant/respondent-wife and Rs.3,000/- was awarded to the minor child.

The said amount was enhanced to total of Rs.15,000/- per month for

applicant/respondent-wife and Rs.5,000/- for minor daughter besides the

rent amount of the house occupied by the applicant/respondent-wife. It has

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been averred that arrears of maintenance from March, 2013 to September,

2015 i.e. 31 months amounting to Rs.6,20,000/- were not paid by appellant-

husband. It has also been averred that at present, the total arrears towards

the maintenance under the Protection of Women from Domestic Violence

Act, due are more than Rs.32 lacs. She claims that she was unemployed

from 2004 to 2015.

The computation of the amount towards maintenance amount

under the Protection of Women from Domestic Violence Act giving the

break up of the amount due at Rs.32,68,394/- has been placed on record

with a copy to the counsel for the non-applicant/appellant-husband.

Application has been opposed by the appellant-husband mainly

on the ground that the applicant/respondent-wife is herself working as

Manager (Taxation) and is presently earning a sum of Rs.90,000/- per

month from the Spice Jet with effect from April, 2016. Prior to that, she

was working from May 2015 to March 2016 as Chartered Accountant with

firm M/s Amod Aggarwal Associates on temporary basis.

The non-applicant/appellant-husband has admitted that he is a

Commerce graduate and a Chartered Accountant but he has not, in clear

terms, disclosed his income rather pursuant to the direction of the Court, has

placed on record his income tax returns for the assessment year 2015-16 and

2016-17 showing that his gross income from all the sources during

assessment year 2015-16 was Rs. 73,031/- and total taxable income being

Rs.73,030/-, the tax liability was nil. The return for the assessment year

2016-17 is, however, showing total income and taxable income as nil with

no tax liability. The non-applicant/appellant-husband has produced the

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FAO-5216-2010

aforesaid income tax returns with an objective to persuade this Court to

believe that though the non-applicant/appellant-husband is trained

professional Chartered Accountant staying in Delhi, yet his taxable income

is Nil.

After considering the educational qualification of

applicant/respondent-wife and non-applicant/appellant-husband, we feel

that both are at par so far as their education, earning capacity and

professionalism is concerned. The applicant/respondent-wife has come out

with a clear picture showing that she is earning a sum of Rs.90,000/- per

month by working for a company with effect from April, 2016. It is

absolutely unbelievable that the non-applicant/appellant-husband, having

same professional qualification, is not earning any amount. The income tax

returns are not the only source to determine the income of a citizen who is

not in Government employment.

The computation sheet of income for relevant period has not

been made available on record so as to enable this Court to arrive at a

conclusion about the nature of the job done by the non-applicant/appellant-

husband and we have to hesitation to arrive at a definite conclusion that the

non-applicant/appellant-husband has made best efforts and used his

professional skill to conceal his income by securing documents.

Considering the income tax returns as camouflage documents, we do not

place reliance on the income tax returns of the non-applicant/appellant-

husband.

The liability of the non-applicant/appellant-husband to pay

maintenance to the applicant/respondent-wife and child has repeatedly been

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considered in parallel proceedings under the Protection of Women from

Domestic Violence Act and proceedings under Section 24 of the Hindu

Marriage Act before the lower Court.

We have considered the fact that the applicant/respondent-wife

is also capable of earning and is also earning for herself and the minor child

but the said fact will not be sufficient enough to deprive the

applicant/respondent-wife to claim the interim maintenance especially when

she on the basis of her educational qualification has made endeavour to

work after the non-applicant/appellant-husband had entered into the

litigation for seeking divorce.

The judgment in Rupali Gupta Vs. Rajat Gupta, 2016 (4)

R.C.R. (Civil) 340, referred by the counsel for non-applicant/appellant-

husband has been considered by us wherein the Delhi High Court had not

granted interim maintenance under Section 24 of the Hindu Marriage Act.

Perusal of the said judgment indicates that in that case the husband had

voluntarily acknowledged his responsibility to support his children and had

readily agreed to pay the maintenance to the minor children assuring that he

would be responsible for proper education of his children and had expressed

his desire to bear the additional burden in terms of increase of school fee,

transport and other allowances. The facts of the said case are not applicable

to the circumstances in the present case where the husband has not only

made an attempt to avoid his liability but has also made an attempt to

mislead the Court by adopting an evasive approach even in disclosing his

income.

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The Apex Court in Padmja Sharma Vs. Ratan Lal Sharma,

2000 (2) R.C.R. (Civil) 590 has made an observation that it is not the law

that how affluent mother may be, it is the obligation of the father to

maintain the minor.

Be that as it may, we do not deem it appropriate to enter into

further probe into the source of income and the earnings of the non-

applicant/appellant-husband per month but taking into consideration that he

is skilled professional expert in accounting; staying in House No.D-1/64,

Janakpuri, Delhi and maintaining him well, is held liable to maintain his

wife as well as minor child.

Taking into consideration the above circumstances, the liability

of the non-applicant/appellant-husband to pay the maintenance pendente lite

is determined to the extent of Rs.25,000/- per month. While granting

maintenance pendente lite to the applicant/respondent-wife at the rate of

Rs.25,000/- per month, payable with effect from the date of application, it is

ordered that sum of Rs.20,000/- which is determined as maintenance under

the Protection of Women from Domestic Violence Act, will be adjustable

and he would be required to pay only Rs.5,000/- per month to the

respondent-wife. This amount has been determined taking into

consideration the fact that she is shouldering the responsibility of bringing

up the minor child which is joint liability of both husband and wife. No

separate amount for the applicant/respondent-wife and daughter is being

determined in the application under Section 24 of the Hindu Marriage Act.

Since no amount has been paid by the non-applicant/appellant-

husband, the arrears have allegedly accumulated to the extent of more than

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Rs.32 lacs as per the statement produced before this Court.

However, it is observed that in case the amount of maintenance

at the rate of Rs.20,000/- has already been paid to the applicant/respondent-

wife, the said amount will be adjustable, otherwise, the non-

applicant/appellant-husband would be required to pay sum of Rs.25,000/-

per month with effect from the date of application i.e. 21.09.2015.

A sum of Rs.75,000/- is considered to be reasonable amount for

litigation expenses payable by the non-applicant/appellant-husband to the

applicant/respondent-wife. A sum of Rs.30,000/- already paid towards the

interim litigation expenses will be adjustable from the amount of

Rs.75,000/-.

The application under Section 24 of the Hindu Marriage Act is

disposed of accordingly.

For payment of the arrears of maintenance pendente lite and

balance of litigation expenses, to come up on 16.11.2017 on which date the

entire arrears as calculated till 30.11.2017 will be paid.

It is made clear that in case of non-compliance of the order, the

legal consequences for non-payment of the maintenance pendente lite will

follow.

Nothing mentioned in this order will prejudice the right of the

applicant/respondent-wife to seek execution of any amount due towards the

maintenance prior to the date of application under Section 24 of the Hindu

Marriage Act.

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The miscellaneous application, CM-23468-CII-2014 for

additional evidence under Order 41 Rule 27 CPC filed by the appellant-

husband is ordered to be heard with the main appeal.

(M.M.S. BEDI)
JUDGE

October 11, 2017. (AUGUSTINE GEORGE MASIH)
harsha JUDGE

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