Judgment:
* IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on:
31. 10.2013 Decided on:
21. 11.2013 + MAT. APP. (F.C.) 24/2013, C.M. NO.12007/2013 & 12008/2013 VISHAL KAPOOR ..... Appellant Through: Sh. Manish Tandon, Advocate. versus YASHNA KAPOOR ..... Respondent Through: Sh. S.K. Puri, Sr. Advocate with Sh. Gaurav Puri, Ms. Gayatri Puri and Ms. Kalpana Chauhan, Advocates. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI MR. JUSTICE S. RAVINDRA BHAT % C.M. No.12008/2013 (for condonation of delay) For the reasons mentioned in the application, C.M. No.12008/2013 is allowed. MAT. APP. (F.C.) 24/2013, C.M. No.12007/2013 (for stay) 1. In this appeal under Section 19 of the Family Courts Act, the husband challenges an order of the Family Court directing him to pay maintenance pendente lite to the wife, Yashna Kapoor (hereafter “the wife”) during the course of divorce proceedings.
2. The facts are that the husband preferred a petition under Section 13 (1) (ia) of the Hindu Marriage Act, 1955 (“the Act”) claiming MAT. APPL(F.C.)24/2013 Page 1 divorce, i.e. HMA7142011. Another petition, being HMA67912, was filed by the wife claiming decree of the dissolution of marriage against the husband under Section 13 (1) (i) & (ia) of the Act. With this petition the wife filed an application under Section 24 of the Act claiming maintenance for herself and her minor daughter. She also preferred an application for maintenance under Section 125 of the Code of Criminal Procedure (Cr.PC) for grant of maintenance, for herself and her minor daughter; an interim maintenance application was also filed.
3. The marriage between the parties was solemnized on 01.10.1995 according to Hindu rites. From the said wedlock a daughter was born, who is in the wife’s custody. The wife levelled several allegations outlining insult by the husband and his family members for bringing insufficient dowry. She alleged that she was subject to constant and regular harassment; that she was abandoned and deserted by the husband, the sole earning member and was left to fend for herself and the daughter. The wife was forced to leave the matrimonial home on 16.02.2010. She is a housewife and has no independent source of income. Except one car, she does not have any movable or immovable property. The car was purchased on instalment basis, the initial deposit for the car was given by her father and instalments for it are being paid by her mother. The wife is totally dependant upon her parents for her day-to-day needs and of her daughter. Alleging that the husband is a man of means and receives rental income in respect of his property at Barakhamba Road of not less than `1,00,000/- per month, apart from his other sources of MAT. APPL(F.C.)24/2013 Page 2 income. The wife alleged that she and her daughter were entitled to a separate residence. She claimed that the husband be directed to pay `56,200/- per month to her and `39,500/- per month for the maintenance of their daughter.
4. The application was contested by the husband who denied all allegations of cruelty and alleged that the wife had no justifiable reason to desert him and that she filed the applications to extort money from him. He was paying the entire school fee of minor daughter; he was also paying a sum of `12,500/- per month towards the maintenance to the wife and their daughter. Further, when he was released on anticipatory bail (in regard to allegations of his committing offences punishable under Section 498A, IPC) he had also paid `2 lakhs to the wife towards her and the daughter’s maintenance. Therefore, she is not entitled to any maintenance. He also alleged that the wife had herself withdrawn from the society of the husband without any cause. He, therefore, sought dismissal of the application for maintenance pendente lite.
5. The wife’s income affidavit stated that she is educated up to the 12thgrade and had completed a years’ NTT course, baking and chocolate making programmes and a 30-day TATA AIG Insurance Training Programme. She had supplied lunches commercially in 2003 for a month when the parties were living together. She held a Fixed Deposit Receipt of `1 lakh. She has furniture, recovered from the husband as dowry articles. She has an I-10 Hyundai car. The initial amount was paid by her late father and the instalments are being paid by her mother. She has two bank accounts and an LIC policy in her MAT. APPL(F.C.)24/2013 Page 3 name which lapsed. She owns a cell phone and old household items. She has no shares in any companies, except to the extent that the husband made her the Director in some of his companies of which she has no knowledge. She pays `8,000/- as monthly school fees of her daughter and tuition fee as `4500/- She has a credit card with a maximum limit of `40000/- Her daughter is studying in K.R Mangalam School, Greater Kailash –II, New Delhi.
6. The affidavit of the husband stated that he completed B.Com from Delhi University, and is running Vastu Consultancy since 2008 besides having worked as a jewellery store manager. He had also designed jewellery books catalogues and was into trading and directory publishing. He also had modelled and acted as Assistant in Film/TV Serial; he was into the business of solar products trading, import and export. His mother and sister are dependent upon him. His father disowned him and his two younger brothers are living in their own accommodation and working. He earns monthly rent of `69,000/- from the property owned by the father and the rent has been provided to him for his sustenance. He did not receive rent for the last 15 months. He is receiving interest of `1500/- per annum on an FDR. He owns two plots on the Jaipur-Ajmer Highway. All his furniture was taken away by his wife, alongwith two female dogs. He owns a second hand car – 2000 model Hyundai Accent, and maintains a saving bank account as well as current account. He has 9500 shares of V.K. Solar Pvt. Ltd., Four life insurance policies and joint policies with the name of applicant/wife and owns SBI Mutual funds. He has taken credit card loan of `56,766/- from HDFC Bank and `74,998/- MAT. APPL(F.C.)24/2013 Page 4 from HSBC Bank and pays property tax of `2,40,540/- per annum. He has to pay `7000/- as rent and office rent charges of `6000/- and maintenance, electricity, water and gas charges of `3000/- per month. His conveyance expenditure is around `5000/- per month. He is a member of the Resort Company Club and its subscription is `4000/per annum and his usage, subscription to newspapers, periodicals, magazines etc. are `700/- per month. He pays internet charges of `850/- per month. His expenditure on travel, including outstation and foreign travel, business as well as personal, are `2500/- per month. His mode of travel in city and outside city is metro, bus and autorickshaw and he last traveled in 2007 by Air India in economy class and stayed in a budget hotel. He has two credit cards and maximum credit limits are `39000/- and `54000/- respectively. He has membership of a South Delhi Club at Greater Kailash but now the club is closed. He has a PAN card.
7. The Trial Court recollected the relevant principles to be applied by Courts, outlined in Sanjiv Sangwan v. Sangeeta Sangwan 143 (2007) DLT306 Bharat Hegde v. Smt. Saroj Hegde, 140 (2007) DLT16and Jayant Bhargava v. Priya Bhargava 181 (2011) DLT602 i.e. status of parties; reasonable wants of the claimant; the independent income and property of the claimant; the number of dependents of the non-applicant whom he has to maintain; the amount should aid the applicant to live in a similar life style as he/she enjoyed in the matrimonial home; non applicant’s liabilities, if any; provisions for food, clothing, education, medical attendance and treatment etc., of the applicant; payment capacity of the non-applicant. The Court also MAT. APPL(F.C.)24/2013 Page 5 stated that some guesswork is not ruled out while estimating the income of the non-applicant when all the source of correct sources are not disclosed and that the non-applicant would defray the cost of litigation.
8. The Trial Court then observed that the wife had placed on record material which revealed that the husband was possessed of means greater than what he had disclosed to the Court:
“10. (the wife has produced)………….. …visiting cards of the non-applicant/husband which shows that he is Chairman of the V.K. Solar and said firm runs its business at Chiae and Hongkong also. He has also filed other photographs which shows that the nonapplicant/husband is running a Astro Vastu Consultancy also. Non-applicant/husband in his affidavit husband has stated that he is paying rent of the office also which means that he is maintaining an office. Though he has stated that his Vastu business as well as business of V.K. Solar is in losses but still he is maintaining the office and paying rent for the same. He has stated that he has his mother and sister dependent upon him but at the same time in his affidavit he has stated that his father is still alive and therefore, it is the duty of his father to maintain his wife i.e. mother of the non-applicant/ husband and his daughter i.e. the sister of the non-applicant/husband. From the affidavit of non-applicant/husband it is clear that he has no other liability except to maintain the applicant/wife and their daughter. Again and again arguments have been put forth by counsel for the nonapplicant/husband that the applicant/wife is working and is able to maintain herself but neither in the entire reply nor in his affidavit the non-applicant/husband has taken this plea. Nether he has stated what type of work applicant/wife is doing nor he has taken any such plea that applicant/wife is working or is able to maintain herself. Applicant/wife is maintaining the daughter of the MAT. APPL(F.C.)24/2013 Page 6 parties also who is school going and is presently about 17 years of age. From the reply as well as affidavit of non-applicant/husband it is clear that he has concealed his true income and status from the court. Reference can be had to the judgment of Hon’ble Supreme Court titled as Jasbir KaurSehgal Vs. District Judge, Dehradun and Others 1997(7) SCC7