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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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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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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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