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Tarun Ahuja vs Smt. Leena Sharad on 26 October, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Reserved

Case :- FIRST APPEAL No. – 606 of 2017

Appellant :- Tarun Ahuja

Respondent :- Smt. Leena Sharad

Counsel for Appellant :- Ranvijay Chaubey,Syed Wajid Ali

Counsel for Respondent :- Abhishek Gupta

Hon’ble Pradeep Kumar Singh Baghel,J.

Hon’ble Mrs. Vijay Lakshmi,J.

This is an appeal preferred by a husband under Section 19(1) of the Family Courts Act, 1984 dissatisfied with the order of Family Court granting interim maintenance to the wife under Section 24 of the Hindu Marriage Act (for short, “the Act, 1955”).

The appellant Tarun Ahuja and respondent Smt. Leena Sharad were married on 24.3.2010 in New Delhi according to the Hindu rites and rituals. The appellant had solemnized the marriage with the respondent after having a decree for divorce from his first wife. After five years of his second marriage he filed a petition under Section 13(1)(ia) praying for dissolution of his marriage with the respondent by a decree of divorce. The respondent – wife moved an application under Section 24 of the Act, 1955 for awarding Rs. 25,000/- against expenses, Rs. 3000/- for travelling expenses and Rs. 25,000/- per month as interim maintenance. In her application she has stated that the appellant runs a flourishing business of real estate in the name and style of Binni Associates and his monthly income is around Rs. 2 lakh per month. She has stated that she does not have any source of income and she is dependent upon her parents.

The appellant filed a reply to the application under Section 24 of the Act, 1955 wherein he has asserted that the wife – respondent is running a business of Printing Press and she earns about Rs. 1 lakh per month. He has stated that he is an unemployed person and does not have any fixed income.

The family court after considering the pleadings and material on record found that there is no independent income of wife and from the documents filed by the wife, the Family Court found that the minimum monthly income of the husband is about Rs. 35000/- per month.

Having regard to the totality of the facts and circumstances it held that Rs. 10,000/- per month as interim maintenance could be justified. For reaching at the said conclusion the Family Court has referred the PAN Card of the husband and a document issued by the Commercial Tax Department (Paper Nos. 11-Ka/1 and 11-Ka/2). In the said documents Firm’s name is mentioned as M/s Ahuja Plywood and Hardware Store, Sector-3, Gautam Buddh Nagar and the name of the husband is shown as a dealer and its registration date is 15.4.2016. The court has also held that husband has not filed any documentary evidence against the said evidence nor has controverted the legality of the said document.

In this appeal the appellant has filed two supplementary affidavits without following the procedure to file additional evidence on record. In the first supplementary affidavit he has denied the fact that he is M.B.A.. It has been stated that he has taken admission in M.B.A. through correspondence course in 2003 from Kurukshetra University, Haryana and he appeared in the first year examination but he could not qualify first year examination on account of the fact that his Project Report was was not satisfactory, therefore, he could not continue the course of M.B.A..

It is further stated that at the time when the divorce petition was filed by the appellant, he suffered huge loss in his business due to demonetization hence he closed down the same and presently he is not doing any business. It is further averred that the appellant has been appointed as a Trainee, Accounts Finance in J.K. Makhija Co. vide appointment letter dated 5.8.2017 and the remuneration fixed for the appellant is Rs. 4500/- consolidated per month. He has brought on record the appointment letter dated 5.8.2017. The other facts which have been stated in the supplementary affidavit are in respect to the merit of the case which need not to be mentioned.

In the second supplementary affidavit it has been stated that the wife has filed an application under Section 125 Cr.P.C. before the Principal Judge, Family Court, Bareilly which has been rejected by order dated 17.7.2018 on the ground that the opposite party (wife) is living separately from the appellant without there being any sufficient cause. The appellant has also brought on record the statement of an account to show that he is being paid salary of Rs. 4500/- per month. The averment made in the supplementary affidavit has been denied by the respondent-wife. She has reiterated that she is completely dependent on her parents.

She has further stated that the appellant has not paid any amount for maintenance to her and she has been incurring expenses every time when she travels from Bareilly to Gautam Buddh Nagar to attend and contest the divorce petition which is a long distance from her home. She has reiterated that the husband runs a Real Estate Firm, in the name and style of Binni Associates and earns Rs. 2 lakh per month from his business and she has referred a document issued by the Commercial Tax Department in respect of husband’s firm M/s Ahuja Plywood and Hardware Store. 

The appellant has filed yet another affidavit on 18.3.2018, wherein a new fact has been stated that the sole respondent has done the course of B.Com. and N.T.T. and she has been running a coaching in her house, wherefrom she has been earning a handsome amount, thus she is fully dependent upon her income,  therefore, she is not entitled to be given any maintenance.

In respect of the pleadings of the wife regarding Binni Associates its existence has been admitted in the affidavit but it has been stated that Binni Associates suffered serious slum in the business.

The learned counsel for the appellant submitted that the appellant is unemployed and jobless man and is suffering from great mental stress due to cruelty meted to him by the wife and has no independent source of income and the interim maintenance granted by the Family Court is highly exaggerated and unreasonable.

Learned counsel for the respondent submitted that the evidence which has been brought on record clearly shows the case of the appellant that he is jobless, is totally false. He has also submitted that husband has not filed any evidence to demonstrate that wife is running a printing press.

The provision for interim maintenance was provided by Amending Act, 1976 inserting Section 24 in the Act, 1955 which enacts that where in any proceeding it appears that either the wife or the husband, has no indepnendent income sufficient for her or his support and the necessary expenses of the proceeding, it may order the opposite party to pay interim maintenance and litigation expenses.

The maintenance has not been defined in the Hindu Marriage Act, 1955, the Hindu Minority Guardianship Act, 1956, the Hindu Adoptions Maintenance Act, 1956 and the Hindu Succession Act, 1956. It is trite that all these acts are to be read in conjunctions of one another and interpreted accordingly.

The language of Section 24 of the Act, 1955 indicates that a wide discretion has been conferred on the court with a guideline that while fixing the interim maintenance the Court has to give due regard to the income of the respondent and the appellant’s own income. It has also to be bear in mind the other relevant facts like social status, the background from which both the parties come from and the economical dependence of the appellant. It is a temporary measure hence the Court is not required a detailed and elaborate exercise at this stage. The prime consideration for the court is to take all the relevant factors into account and think at a proper amount which can be said to be sufficient to meet the expenses of the spouse during the pendency of the proceedings.

The Section has employed the word reasonable amount. No rigid rule can be found in precedents. The Section givs very wide discretion on the court to determine the allowance due to a spouse. The Court is left to exercise its discretion where it is shown that a spouse has no independent income and she/ he is dependent on the income of husband/ wife. What is reasonable amount is a vexed question. It depends upon various factors and circumstances of each case. In a matter of human relationship it is difficult to find similar facts and circumstances, therefore, each case has to be considered on its own facts and circumstances. The vexed question of fixing reasonable amount has also perplexed the English Courts. Lord Denning for the first time in Wachtel v Wachtel, (1973) 1 All ER 829 evolved ‘one third’ formula in the following terms:

“There was, we think, much good sense in taking one-third as a starting point. When a marriage breaks up, there will thenceforward be two households instead of one. The husband will have to go out to work all day and must get some woman to look after the house – either a wife, if he re-marries, or a housekeeper, if he does not. He will also have to provide maintenance for the children. The wife will not usually have so much expense. She may go out to work herself, but she will not usually employ a housekeeper. She will do most of the housework herself, perhaps with some help. Or she may remarry, in which case her new husband will provide for her. In any case, when there are two households, the greater expense will, in most cases, fall on the husband than the wife. As a start has to be made somewhere, it seems to us that in the past it was quite fair to start with one-third. Counsel for the wife criticised the application of the so-called ‘one-third rule’ on the ground that it no longer is applicable to present-day conditions, notwithstanding what was said in Ackermann v. Ackermann, (1972) 2 All ER 420. But this so-called rule is not a rule and must never be so regarded. In any calculation the Court has to have a starting point. If it is not to be one-third, should it be one-half? or one-quarter? A starting point at one-third of the combined resources of the parties is as good and rational a starting point as any other, remembering that the essence of the legislation is to secure flexibility to meet the justice of particular cases, and not rigidity, forcing particular cases to be fitted into some so-called principle within which they do not easily lie. There may be cases where more than one-third is right. There are likely to be many others where less than one-third is the only practicable solution. But one third as a flexible starting point is in general more likely to lead to the correct final result than a starting point of equality, or a quarter.”

Coming to the case law on the issue, a recent judgment of the Supreme Court in the case of Manish Jain v. Akanksha Jain, (2017) 15 SCC 801 is in point in the connection. Relevant part of the said judgment reads thus:

“16. An order for maintenance pendente lite or for costs of the proceedings is conditional on the circumstance that the wife or husband who makes a claim for the same has no independent income sufficient for her or his support or to meet the necessary expenses of the proceeding. It is no answer to a claim of maintenance that the wife is educated and could support herself. Likewise, the financial position of the wife’s parents is also immaterial. The court must take into consideration the status of the parties and the capacity of the spouse to pay maintenance and whether the applicant has any independent income sufficient for her or his support. Maintenance is always dependent upon factual situation; the court should, therefore, mould the claim for maintenance determining the quantum based on various factors brought before the Court.”

The Supreme Court in the case of Neeta Rakesh Jain v. Rakesh Jeetmal Jain, (2010) 12 SCC 242 has observed as under:

“9. Section 24 thus provides that in any proceeding under the Act, the spouse 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 very language in which section is couched indicates that wide discretion has been conferred on the court in the matter of an order for interim maintenance. Although the discretion conferred on the court is wide, the section provides guideline inasmuch as while fixing the interim maintenance the court has to give due regard to the income of the respondent and the petitioner’s own income.

10. In other words, in the matter of making an order for interim maintenance, the discretion of the court must be guided by the criterion provided in the section, namely, the means of the parties and also after taking into account incidental and other relevant factors like social status; the background from which both the parties come from and the economical dependence of the petitioner. Since an order for interim maintenance by its very nature is temporary, a detailed and elaborate exercise by the court may not be necessary, but, at the same time, the court has got to take all the relevant factors into account and arrive at a proper amount having regard to the factors which are mentioned in the statute.”

It is not necessary to multiply the authorities in view of the aforesaid decision of the Supreme Court.

Applying the aforesaid principle, what we find in the present case is that wife in her application has clearly stated that she has no independent income and is wholly dependent upon her parents and family members. She has also stated that the husband is doing a flourishing business and is earning Rs. 2 lakh per month. In his objection 6-C supported by an affidavit he has averred in Paragraph-16 of the affidavit that his wife is running a printing press and is earning Rs. 1 lakh per month. In paragraph-17 he has stated that he is an unemployed person and has no fixed income. The husband had changed his stand subsequently. In one of his affidavit in this court, he has admitted that he had a business which he had closed due to loss following demonetization. He again changed his stand that he has taken a job at the consolidated salary of Rs. 4500/-. This fact and the document has been filed for the first time in this appeal. This document was not before the Family Court when it has decided the matter. Likewise he has also brought on record for the first time the order passed by the Family Court, Bareilly dated 17.7.2018 whereby the application of the wife for the maintenance under Section 125 Cr.P.C. has been rejected on the ground she has deserted her husband and she is not entitled for the maintenance. These documents have been filed by the appellant without moving appropriate application to take additional evidence on the record.

The sole respondent has filed a document issued by the Commercial Tax Department (Paper Nos. 11-Ka/1 and 11-Ka/2) to demonstrate that her husband is running a business under the name and style of M/s Ahuja Plywood and Hardware Store wherein husband’s name is shown as a dealer of the Firm. This document has not been controverted by the appellant before the court below. The learned counsel for the appellant could not assail the recital in the impugned order wherein it has been recorded by the Family Court that the husband has not filed any documentary evidence against the evidence filed by the wife nor controverted the legality of the said document. The Court has also noticed that the husband himself has admitted that previously he was engaged in a business but now he is unemployed.

From the aforesaid facts it is manifest that the husband has concealed his income, he has clearly stated that he is unemployed and later he has tried to set up a case that he is receiving a consolidated salary.

In ultimate analysis, we are of the firm view that the interim maintenance granted by the Family Court is based on proper appreciation of the relevant facts and circumstances of the case and its findings do not suffer from any illegality for the reasons recorded above by us.

Accordingly, the appeal lacks merit and is dismissed.

No order as to costs.

Order Date :-26.10.2018

Digamber

 

 

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