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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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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