CMM 78 of 2016 in
FAO 2475 of 2015 [1]
CMM 78 of 2016 in
FAO 2475 of 2015
-.-
Jaspreet Kaur Vs. Balpreet Singh Gumber
Present: Mr. R.S. Mamli, Advocate for the applicant- appellant.
Mr. Piyush Khanna, Advocate for the non-applicant/respondent.
-.-
Appeal of the applicant- wife against the decree dated January
15, 2015 allowing the application of the respondent for dissolution of
marriage is pending before this Court. During the pendency of her petition,
the applicant-wife has filed an application under Section 24 of the Hindu
Marriage Act for grant of maintenance pendente lite. It is averred in the
application that the applicant has got no source of income and she has to
maintain and educate the minor child born out of the wedlock. The
education expenses are stated to be Rs.8000/- p.m. to Rs.10000/- p.m. The
family of the respondent is having property of more than Rs.200 crores out
of which respondent is having share of Rs.50 crores. He is having a
transport business in the name and style of M/s S.K. Golden Transport and
M/s Guru Nanak Associates. He deals in the business of real estate also
besides having godowns in Gurgaon which are being given on lease as such
the income of the respondent is more than Rs.80 lacs per month. Ms/ S.K.
Golden Transport Company, as per the information derived through internet,
has got seven branches at different places in Gurgaon, Faridabad,
Ghaziabad, New Delhi, Ludhiana and Bhiwadi (Rajasthan). The respondent
is allegedly running 30 trucks throughout India and owns flats in DLF Phase
I and Phase 2, five flats in South City, more than four plots in Gurgaon,
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more than 10 plots and two farm houses at Sohana Road, Kinder Garden
School, Massage Parlour, Beauty Parlour and Real Estate Business is being
run in Gurgaon by the respondent. The annual income has been alleged to
be more than Rs.10 crores. It is averred in the application that before the
lower Court the respondent had undertaken, during the course of
proceedings, that in case she is willing to send the daughter to live with
respondent, he will pay her Rs.50000/- per month, provide two servants and
a Driver besides a luxury car in her name and provide a house of her choice
in her name in Gurgaon with CCTV camera facility. Despite the above said
facilities offered, the appellant had expressed her inability to join the
respondent. Along with the application, the appellant has relied upon
annexure A-1, a lease agreement entered into between the Directors of M/s
S.K. Golden Transport Company with Rajasthan State Industrial
Development Corporation regarding Plot No. SR 149 of Industrial Area,
Bhiwadi for manufacturing and industrial work to the above said Company.
Annexure A-2 are the receipts issued to Janak Kaur, mother-in-law,
regarding payment of tax of the different units in Municipal Corporation,
Gurgaon for the year 2008. In this background, the appellant has claimed
litigation expenses of Rs.1 lac and maintenance pendente lite at the rate of
Rs.5 lacs per month.
The respondent has contested the application by denying the
averments. It is averred in the reply that the non-applicant/ respondent is
paying a sum of Rs.10000/- per month to the applicant in compliance with
the interim orders passed in bail application. The amount has been enhanced
to Rs.13000/- per month by Family Court, Tees Hazari, New Delhi, vide
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CMM 78 of 2016 in
FAO 2475 of 2015 [3]
annexure R-2. Claim of appellant under Section 125 Cr.P.C. is stated to be
pending before the Family Court, Tees Hazari, New Delhi on similar
allegations and the respondent has also filed an application under Section
340 Cr.P.C. against her in New Delhi. The dismissal of the application has
been prayed for on the ground that an attempt to play fraud with the Court
has been made. The respondent has submitted that he is earning only a sum
of Rs.20000/- per month from all sources of his earning. He has also taken
up a plea that the appellant is educated having Diploma in Computers and
other professional courses and is capable of earning as such she has got no
right to claim maintenance.
All the averments in the application under Section 24 of the
Hindu Marriage Act have been vaguely denied. So far as the offer made
during the course of proceedings before the lower Court is concerned, it is
pleaded in the reply that undertaking given before the Court below was
simply a suggestion before the cross-examination to show that the applicant
was not ready to live with the respondent and that the marriage has reached a
dead end.
Counsel for the applicant- Mr. R.S. Mamli has submitted that
the respondent has got income from various sources i.e. Transport business
of M/s S.K. Golden Transport and M/s Guru Nanak Associates. The said
Companies have got offices in different parts of the country. The respondent
owns flats in different parts of Gurgaon and Punjab, as is averred in the
application.
On the other hand, Mr. Piyush Khanna, counsel for the
respondent has relied upon income tax returns for the assessment year 2014
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CMM 78 of 2016 in
FAO 2475 of 2015 [4]
to 2017 which were submitted on January 15, 2015, December 3, 2015 and
August 17, 2016 indicating the gross annual income of the respondent as
Rs.2,40,000/-, Rs.2,90,500/- and Rs.3,09,000/- for the assessment years
2014-15, 2015-16 and 2016-17 respectively.
We have heard learned counsel for the parties and carefully
gone through the facts and circumstances of this case. The respondent has
been in litigation with the applicant/ appellant since 2012 as is apparent from
the record. The divorce petition had been filed by the respondent on
September 27, 2012. The income tax returns for the year prior to 2014 have
intentionally been withheld by the respondent. It is apparent that the
respondent being vigilant regarding the right of the appellant for
maintenance under various provisions of law had intentionally started
showing his individual income to the tune of Rs.2 lacs to Rs.3 lacs from the
financial year 2014-15. Besides this, the respondent has not denied
specifically various sources of income mentioned by the applicant in the
application. He has, however, submitted that from all sources he has got
income of only Rs.20000/- per month. We are of the view that the
respondent has made an attempt to conceal his annual income from all
sources compelling this Court to decide the application for maintenance on
the basis of the probabilities and circumstances apparent on the record.
When the appellant had appeared as a witness in the petition for divorce
filed by the respondent on the ground of cruelty, it was the case of the
respondent that the applicant wife had expected sum of Rs.1 crore as divorce
settlement. While grating a decree of divorce to the respondent, the lower
Court has observed as follows:-
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CMM 78 of 2016 in
FAO 2475 of 2015 [5]
“18. As if the above evidence led by the petitioner is
not enough, it may be pointed out that this is virtually a
case of a dead marriage. Though the respondent has
hotly contested this case she is herself not interested in
living with the petitioner. She has levelled all kinds of
allegations against him and has not uttered a single word
to show that the parties can have a cordial relationship.
In fact, when a specific query was put to her to enquire
whether or not she was willing to live with him if the
petitioner was not provide her with two servants, a luxury
car with driver, a house of her choice and Rs.50,000/- per
month, she was still not ready to live with him. In fact,
she clearly stated that she would not live with him on any
condition and even if he fulfilled all her demands. She
further disclosed that she had agreed to settle the matter
on payment of Rs.One crore to her by the petitioner.
She stated that she would withdraw all the cases filed by
her if the petitioner was to make such payment to her. A
similar admission has also been made by her father when
the same query was put to him.”
The above said observations clearly indicate that the
respondent has made an attempt to establish that though he was ready to
provide the applicant with two servants, a luxury car with driver, a house of
her choice and a sum of Rs.50000/- per month but she was still adamant not
to live with him under any conditions even if he fulfilled her all demands.
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CMM 78 of 2016 in
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Her admission in the cross-examination that she would agree to settle the
matter on payment of permanent alimony Rs.1 crore which was denied by
the respondent, has been taken as an adverse circumstance against her to
arrive at a conclusion that the marriage had broken down.
Without expression of any opinion on the above said admission
in the cross-examination, we are of the considered opinion that permanent
alimony in case of divorce is a statutory right of a wife under Section 25 of
the Hindu Marriage Act and it is always open to the Court to grant
permanent alimony while dissolving the marriage of the parties. Pleadings
of the parties apparent from the impugned judgment dated January 15, 2015
indicate that the controversy whether the applicant had been compelled to
leave the matrimonial home or that she voluntarily abandoned her
matrimonial house is yet to be determined but the fact remains that on the
basis of his resources and wealth, a suggestion had been put to the appellant
wife and her father in cross-examination that an impression was sought to be
created that he was capable of providing two servants, a luxury car with
driver, a house of her choice and a sum of Rs.50000/- per month but she was
still not ready to live with him. There does not appear to be anything wrong
in the admission of the wife when she had accepted to part company on
receipt of Rs.1 crore in case it was offered to her before the year 2015, as it
is a statutory right under the provisions of Section 25 of the Hindu Marriage
Act. The individual may lie but the circumstances won’t.
From the above said circumstances, we are of the considered
opinion that the respondent has made an attempt to conceal his income with
an objective to evade his liability for maintenance. The various sources
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CMM 78 of 2016 in
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mentioned in the application have not been specifically denied as such we
arrive at a conclusion that respondent is rich enough and capable to provide
the facilities to the appellant which were offered during her cross-
examination.
The application under Section 24 of the Hindu Marriage Act is
allowed on the basis of principle of reasonable estimation from the
circumstances, which is permissible under law. As the applicant is
maintaining the minor child and looking after his education, a sum of
Rs.75000/- per month as maintenance pendente lite is assessed payable to
the wife/ applicant w.e.f. the date of the application against her claim of Rs.5
lacs per month besides a sum of Rs.1 lac as litigation expenses. The sum of
Rs.13000/- paid by the respondent will be adjustable against the said amount
w.e.f. December 2015.
For payment of the arrears of maintenance and litigation
expenses, to come up on the date fixed i.e. November 30, 2017.
(M.M.S. BEDI)
JUDGE
November 08, 2017 (AUGUSTINE GEORGE MASIH)
sanjay JUDGE
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