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Sheetal Garg vs Harkirat on 22 May, 2018

230
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

(1) FAO-M-90-2017 (OM)
Decided on:-May 22, 2018.

Dr. Sheetal Garg.
………Appellant.
Versus
Dr. Harkirat Gill.
………Respondent.

(2) CR No.5463 of 2017 (OM)

Dr. Harkirat Gill.
………Petitioner.
Versus
Dr. Sheetal Garg. ………Respondent.

CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI
HON’BLE MR. JUSTICE HARI PAL VERMA

*****

Present:- Mr. Akshay Bhan, Senior Advocate with
Mr. H.P.S. Sandhu, Advocate for the appellant.

Mr. Namit Gautam, Advocate
for the respondent.

HARI PAL VERMA, J.

By way of this common judgment, the aforementioned two cases

i.e. FAO-M-90 of 2017 titled as Dr. Sheetal Garg Versus Dr. Harkirat Gill

and CR No.5463 of 2017 titled as Dr. Harkirat Gill Versus Dr. Sheetal Garg

are being decided as the same have arisen from a common order dated

03.03.2017 passed by learned Additional District Judge, Ludhiana, whereby

the petition under Section 24 of the Hindu Marriage Act, 1955 (for short, the

Act) filed by Dr. Harkirat Gill for grant of maintenance pendente lite and

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litigation expenses was allowed.

However, for convenience and clarity, the detailed order is being

passed in FAO-M-90 of 2017 titled as Dr. Sheetal Garg Versus Dr. Harkirat

Gill.

Vide impugned order dated 03.03.2017, learned Additional

District Judge, Ludhaina held the respondent-wife Dr. Harkirat Gill (for short,

the wife) entitled for maintenance pendente lite at the rate of Rs.1,00,000/-

per month including maintenance for her children. The appellant-husband

Dr. Sheetal Garg (for short, the husband) was further directed to pay

Rs.20,000/- as litigation expenses.

Aggrieved against the impugned order dated 03.03.2017 passed

by the Family Court, the husband has filed the present appeal under Section

28 of the Act. Similarly, the wife has also filed civil revision claiming

maintenance pendente lite at the rate of Rs.4,00,000/- per month along with

an amount of Rs.1,10,000/- as litigation expenses under Section 24 of the Act.

It is in these circumstances, both the parties have filed their

respective appeal/revision petition and, therefore, the same have been taken

up together for decision, having been arisen from the common judgment

dated 03.03.2017.

Briefly stated, the husband had filed a petition under Section 13

of the Act, seeking dissolution of marriage by way of a decree of divorce. The

parties are doctors by profession and marriage between them was solemnised

on 29.08.1999 as per the Hindu rites and ceremonies and on 30.08.1999 at

Chandigarh according to Sikh rites by way of Anand Karaj. Out of this

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wedlock, two children i.e. a daughter namely Mehreen was born on

04.11.2000, whereas a son namely Arnav was born on 21.09.2006. The

children are minors and are living under the care and custody of the wife, who

is a PCMS doctor posted on deputation as Medical Officer in ESI Hospital,

Ludhiana. Her salary including all allowances comes to Rs.52,327/- per

month. The daughter Mehreen is a student of 10th class. Her annual tuition fee

is Rs.33,440/- and in addition thereto, she requires Rs.5,000/- per month for

books and stationery and Rs.5,000/- per month for clothes, shoes, uniform and

other allied expenditure. Besides this, her monthly tuition fee is Rs.6,000/-.

She goes to school by school bus for which she has to pay Rs.2,100/- per

month as transportation fee. The minor son Arnav, who is about 9 years of

age, is a student 4th standard in DAV Public School, Ludhiana and for him, a

sum of Rs.2,500/- per month has to be paid as school tuition fee, Rs.3,000/-

per month for books and stationery and Rs.5,000/- for clothes, shoes and

uniform. He is also using school conveyance for which monthly charges are

Rs.2,100/-. Since the wife required a conveyance so as to commute to and

from her work place i.e. ESI Hospital, Ludhiana, she had to buy a vehicle i.e.

Duster (petrol) car in December, 2014. After getting it financed from HDFC

Bank, she is paying a monthly instalment of Rs.15,000/- out of her salary. She

has further claimed that her husband is a Senior Consultant and HOD-Cardiac

Anesthesia with Fortis Hospital, Ludhiana and is drawing a monthly salary of

Rs.5,00,000/- besides other benefits. He has also made substantial investment

in share market, mutual funds and FDRs etc. and as such, his total monthly

income comes to Rs.10,00,000/-. The husband is not contributing any amount

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towards the welfare of the wife and the children and in order to meet the

requirements of the wife and children, the wife requires Rs.4,00,000/- per

month as maintenance pendente lite which is bare minimum requirement of

the wife to meet the day to day expenditure. In addition thereto, she requires a

further sum of Rs.1,10,000/- in order to incur on the litigation expenses.

The husband while filing reply to this petition filed under Section

24 of the Act, had taken preliminary objections controverting the averments

made in the petition. It has been contended that she (wife) is guilty of

approaching the Court with unclean hands and is not entitled to the relief

claimed in the petition, as she has suppressed true and material facts. The

marriage between the parties was admitted. It was also admitted that the wife

is working as a PCMS Medical Officer, though her salary is more than

Rs.65,000/- per month. She is due to clear her probation and after completion

of her probation, her salary would be Rs.1,00,000/- per month. Apart from

this, she also has savings of Rs.7-8 lacs in her Pension Fund Account. The

husband had filed the petition for divorce against the wife on the ground of

extreme cruelty, both mental and physical which is continuing. She has not

only harassed and humiliated the husband, but is also guilty of leading an

adulterous life, which disentitles her to claim any maintenance from the

husband. She is also in possession of a house owned by the husband and is

utilizing all the facilities and amenities attached to it and all the expenditure

on the maintenance and upkeep of the house including electricity bills, water,

sewerage bills, kitchen expenses etc. are being met by the husband. The wife

is a member of one of the prestigious clubs of Ludhiana, where the

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membership amount is more than Rs.5,00,000/- for public. She is a regular

visitor to kitty parties, Malls and keeps changing her membership of health

club/gym. Therefore, she is not entitled to claim any maintenance, as her

financial conditions are sound enough.

Considering the respective contentions of the parties and the fact

that the petitioner is a legally wedded wife having two minor children

studying in 10th and 4th class respectively and the respondent being husband

of the petitioner and father of the children is legally bound to maintain them,

learned trial Court allowed the application under Section 24 of the Act filed

by the wife. While awarding maintenance pendente lite, the trial Court has

held as under:

“15. Therefore, I am of the view that may be petitioner is
drawing a salary of Rs.52,327/- per month by working as a
Medical officer in the ESI Hospital, Bharat Nagar Chowk,
Ludhiana, but petitioner alleged that the income of her husband
is Rs.5 Lac per month by doing a job as a Sr. Consultant and
Head of Department of Cardiac Anesthesia with Fortis Hospital,
Chandigarh Road, Ludhiana and in this regard, petitioner has
also moved one application directing the respondent to produce
his latest salary certificate, but he did not produce. So, it shall be
assumed that respondent has been drawing monthly salary of
Rs.5 Lac per month as has been claimed by petitioner. Therefore,
the petitioner and her children would have been enjoying better
facility and living standards before petitioner was separated from
the respondent. Since, the petitioner and children are entitled to
enjoy the same life style and standard of life, therefore, keeping
in view the big gap in the earnings of wife and husband as well
as the expenses of the minor children studying in Top schools at
Ludhiana and is residing in home of respondent so, petitioner is

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entitled to maintenance at least @ Rs.1 Lac per month that would
include the maintenance of the children as no separate
maintenance has been sought by the petitioner on their behalf.
So, this petition u/s 24 HMA moved by the petitioner is allowed
and respondent is directed to pay Rs.1 Lac per month to his wife
from the date of petition u/s 24 HMA till the main petition u/s 13
HMA is finally disposed of. In addition to it, respondent is
directed to pay Rs.20,000/- as litigation expenses.”

Mr. Akshay Bhan, learned senior counsel for the husband has

argued that the trial Court has failed to correctly assess the expenses claimed

by the wife, the income of the husband and the allegation of adultery against

the wife. The object and intent of Section 24 of the Act is to enable the

husband or the wife, who has no independent source of income for his or her

support by granting maintenance expenses pendente lite, so that the

proceedings may be continued without any financial hardship. The object of

this provision is not to equalise the income of the parties. The wife has an

independent source of income as she is financially well placed and is working

as Medical Officer in ESI Hospital, Ludhiana. Her income is not less than

Rs.1,00,000/- per month. No proof has been produced by the wife to prove the

income of the husband. A mere bald exaggerated statement about the income

of husband has totally been misconstrued by the learned Court below while

fixing the maintenance pendente lite. He has referred to income tax returns of

the husband for the year 2016-17 showing his gross total income as

Rs.26,10,948/-, for the year 2015-16 the income was Rs.23,59,079/-, whereas

and for the year 2014-15 it was Rs.9,93,520/-. Thus, for the income of the

year 2016-17, for a gross total income of Rs.26,10,948/-, the husband had

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paid a net tax of Rs.5,95,689/-. In addition thereof, he is paying the monthly

instalment approximately of Rs.35,000/- of the house in which the wife is

currently living. The husband is staying in a rented house for which he is

paying additionally Rs.22,000/- per month as rent. The expenses claimed by

the wife to prove her inability to maintain from the income earned by her, is

totally misconceived, unrealistic and exaggerated. She is repeatedly making

frivolous complaints against the husband to his employer for his removal

from the job.

On the other hand, Mr. Namit Gautam, learned counsel appearing

for the wife has argued that the wife has filed a separate revision petition

under Article 227 of the Constitution of India seeking modification of order

dated 03.03.2017 claiming maintenance pendente lite at the rate of

Rs.4,00,000/- per month and Rs.1,10,000/- as litigation expenses under

Section 24 of the Act. He has further argued that the learned trial Court has

passed an extremely perverse, one sided and biased order which is liable to be

modified. The Court below has not referred to any document filed by the wife

and the circumstances and status of the parties while deciding the application.

The husband is a Senior Consultant and is working as Head of the

Department, Cardiac Anaesthesia with Fortis Hospital, Ludhiana. The service

agreement was entered between the husband and Fortis Hospital, whereby

with effect from 14.04.2014, the monthly lump sum service fee of

Rs.4,50,000/- was agreed upon and now almost after more than 3 years, the

salary of the husband has increased approximately to Rs.6,00,000/- per

month, but the husband has not disclosed his true income. Even otherwise, on

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27.05.2015, the retainership fee was increased to Rs.4,89,151/- per month

from the initial retainership of Rs.4,50,000/- per month. Thereafter, with the

intervening period of 2 years, the income of the husband must not be less than

Rs.6,00,000/- per month. In a criminal case registered against the husband,

while seeking anticipatory bail, the husband has admitted that he is earning

around Rs.60,00,000/- per year. Therefore, this is sufficient admission of his

income of the husband i.e. Rs.5,00,000/- per month. The Court below has not

dealt with all the assets of the husband in the shape of FDRs and bank

accounts and has not dealt with this aspect. The Court below has gone wrong

while awarding the litigation expenses to the tune of Rs.20,000/- only.

We have heard learned counsel for the parties and perused the

record.

The marriage between the parties and the children out of this

wedlock are not a matter of dispute. There are two children out of the

wedlock. The daughter, namely, Mehreen was born on 04.11.2000 and son

Arnav was born on 29.01.2006 and both the children are minors and at

present in the care and custody of the wife. They are studying in good schools

which are quite costly. The medical service agreement dated 12.04.2014 as

entered between the husband and Fortis Hospital, Ludhiana does provide that

in consideration of the consultancy rendered by the husband, he shall be

fetching a consolidated lump sum fee of Rs.4,50,000/- per month and the

service agreement has been extended from time to time for a subsequent year

i.e. 27.05.2015, the retainership agreement was revised with effect from April

01, 2015 and the Fortis Hospital, Ludhiana agreed to pay a consolidated

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retainership fee of Rs.4,89,151/- per month.

Section 24 of the Act makes a provision of maintenance pendente

lite and expenses of the proceedings. It reads as under:

“24. Maintenance pendente lite and expenses of
proceedings. –Where in any proceeding under this Act it
appears to the court that either the wife or the husband, as the
case may be, has no independent income sufficient for her or his
support and the necessary expenses of the proceeding, it may, on
the application of the wife or the husband, order the respondent
to pay to the petitioner the expenses of the proceeding, and
monthly during the proceeding such sum as, having regard to the
petitioner’s own income and the income of the respondent, it may
seem to the court to be reasonable:

Provided that the application for the payment of the
expenses of the proceeding and such monthly sum during the
proceeding, shall, as far as possible, be disposed of within sixty
days from the date of service of notice on the wife or the
husband, as the case may be.”

In the case of Smt. Jasbir Kaur Sehgal Versus The District

Judge, Dehradun 1997(4) RCR (Civil) 65, the Apex Court has held that

while fixing maintenance pendente lite under Section 24 of the Act, there

cannot be any hard and fast formula and the Court has to consider the status

of the parties, their respective needs, capacity of husband to pay having

regard to reasonable expenses for his own maintenance. The maintenance

fixed for the wife should be such as she can live in reasonable comfort

considering her status and mode of life she lived with her husband. She

should not feel handicapped in prosecution of her case.

In the case in hand, no doubt, the wife is a Medical Officer

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working with ESI Hospital, Ludhiana. She is drawing salary of Rs.52,327/-

per month, but at the same time, it has come on record that the husband is

well placed and is working as Senior Consultant and HOD-Cardiac

Anesthesia with Fortis Hospital, Ludhiana. In the year 2014, when the service

agreement was entered between the husband and the Fortis Hospital,

Ludhiana, Rs.4,50,000/- were fixed as monthly lump sum service fee and for

subsequent year i.e. 2015, the said amount was increased to Rs.4,89,151/-.

Though learned counsel for the appellant has tried to persuade

this Court that thereafter, the salary of the husband has decreased, but this

argument cannot be accepted as the same is not part of the record. However,

at the same time, no material has been brought on record that for what reason,

the salary of the husband was decreased by Fortis Hospital. The wife is

entitled to live in dignity and status commensurate with the status of her

husband with whom she was otherwise residing before start of litigation

between them. Therefore, the amount of maintenance for wife should be at

such rate where she can live in reasonable comfort considering her status and

the mode of life which she was otherwise used to live when she lived with the

husband. At the same time, it has also to be observed that the amount so fixed

cannot be excessive or extortionate.

It is settled law that the award of maintenance pendente lite under

Section 24 of the Hindu Marriage Act 1955 has to be exercised on sound legal

principles.

The principles to be followed in granting maintenance are well

settled in Bharat Hedge v. Saroj Hedge 140 (2007) DLT 16, wherein it is

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held as under:-

“While considering a claim for interim maintenance, the court
has to keep in mind the status of the parties, reasonable wants of
the applicant, the income and property of the applicant.
Conversely, requirements of the non applicant, the income and
property of the non applicant and additionally the other family
members to be maintained by the non applicant have to be taken
into all. Whilst it is important to insure that the maintenance
awarded to the applicant is sufficient to enable the applicant to
live in somewhat the same degree of comfort as in the
matrimonial home, but it should not be so exorbitant that the non
applicant is unable to pay.”

Hon’ble the Supreme Court in the case of Neeta Rakesh Jain

Vs. Rakesh Jeetmal Jain 2010(3) RCR (Civil) 775 has held that while

granting interim maintenance under Section 24 of the Act during the

pendency of divorce petition, the Court is required to look into various factors

like social status, the background of the parties and their economic

dependence. In the case in hand, the husband is a doctor in super-speciality

and as per the service agreement dated 12.04.2014, as entered between the

husband and the Fortis Hospital, Ludhiana, his monthly lumpsum service fee

was fixed as Rs.4,50,000/-, which was subsequently increased to

Rs.4,89,151/- per month, whereas, the wife has been drawing salary of

Rs.77,000/- per month and maintaining two grown up children. Since the

petition under Section 24 of the Act is aimed at granting interim maintenance,

elaborate exercise by the Court may not be necessary, but at the same time,

the Court has to take all the relevant factors into account and arrive at a

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proper amount having regard to the factors which are mentioned in the statute.

Section 24 of the Act provides that in any proceeding under the Act, the

spouses who has no independent income sufficient for her or his support, may

apply to the Court to direct the respondent to pay the monthly maintenance, as

the Court may think reasonable, regard being had to the petitioner’s own

income and the income of the respondent. The language in which this Section

is couched, indicates that wide discretion has to be conferred on the Court in

the matter of an order for interim maintenance, but at the same time, this

Section provides guidelines, inasmuch as while fixing interim maintenance,

the Court has to give due regard to the income of the respondent-husband and

the petitioner-wife’s own income.

In the case in hand, the husband, who is a well qualified doctor

and specialist of the field, was admittedly drawing service fee of

Rs.4,89,151/- per month in the year 2015, whereas the wife has admitted her

salary income to the extent of Rs.77,000/- per month. Even if she is staying in

the house owned by the husband and drawing salary of Rs.77,000/- per

month, these factors alone cannot be a ground to disentitle her from claiming

maintenance pendente lite.

Therefore, in order to maintain an equitable balance between the

parties, while taking into consideration the income of the respective parties

i.e. the income of the respondent-husband to the extent of Rs.4,89,151/- per

month and that of the appellant-wife to the extent of Rs.77,000/- per month

and the totality of circumstances, the appellant-wife is entitled for a sum of

Rs.75,000/- per month, as maintenance pendente lite from the date of the

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application instead of Rs.1,00,000/- per month, as awarded by the Court

below, but at the same time, the litigation expenses of Rs.20,000/-, as awarded

by the lower Court are increased to Rs.1,10,000/-.

In this manner, the appeal filed by the husband is disposed of and

taking into consideration the totality of the circumstances, a sum of

Rs.75,000/- per month is assessed as maintenance pendente lite payable to the

wife from the date of application. Similarly, the revision petition filed by the

wife is also disposed of and the litigation expenses are enhanced and fixed at

Rs.1,10,000/-.

Since the order has been passed on the basis of material available

on record, the wife shall be at liberty to seek enhancement, if so advised, in

case she procures other documents, showing income of the husband more

than the evidence, as referred in the paragraphs above. It is also made clear

that this order will not in any manner prejudice the right of maintenance of

the minor children born out of the wedlock of parties.

Photocopy of this order be placed on the file of other connected

case.

(M.M.S. BEDI) (HARI PAL VERMA)
JUDGE JUDGE

May 22, 2018
Yag Dutt/AK

Whether speaking/reasoned: Yes

Whether Reportable: No

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