1. Heard Mr. Rao, learned Counsel appearing on behalf of the petitioner and Mrs. Agni, learned Counsel appearing on behalf of the respondent.
2. By this petition, the petitioner has challenged the interim orders dated 04/10/2012 and 05/10/2012, passed by the learned Ad-hoc Additional Civil Judge Senior Division, Mapusa (Trial Court), in Matrimonial Petition No.20/2009.
3. The petitioner and the respondent are Hindus by religion. They got married to each other on 17/04/1998 according to Hindu Customary Right, in Agra, Uttar Pradesh and the marriage was thereafter registered before the Sub- Registrar at Mapusa on 29/06/1998 under Registration No.664/98. They have two minor daughters from the wedlock, namely Khushi born on 14/02/2001 and Saachi born on 27/03/2004. The petitioner, on or about 24/03/2009, has filed a suit for dissolution of marriage against the petitioner, being Matrimonial Case No.20/2009, under the Hindu Marriage Act, 1955 (the Act, for short), which is pending. Initially, the couple and the children stayed in the matrimonial house which is âAnukampa, 60, Green Valley, Alto-Porvorim. Presently, the respondent and her children, have been residing in a three bed room flat at 6-F1, Prudential Palms, Opposite Sapna Gardens, Alto-Porvorim, Goa. The petitioner, who was residing with them, left the said flat sometime in September, 2008 and has moved in a single bedroom apartment i.e. G-51, Villa Paradiso, Tata Housing, Alto-Betim. On 14/05/2009, the respondent filed complaint against the petitioner and his parents under Section 12 read with Sections 18, 19, 20 and 21 of the Protection of Women From Domestic Violence Act, 2005 (Domestic Violence Act, for short), claiming total sum of Rs.67,500/- for maintenance of herself and the two minor children. By interim order dated 04/08/2009, passed in the said Criminal Miscellaneous Application No.159/2009, the learned Judicial Magistrate First Class at Mapusa, ordered the petitioner to pay to the respondent a sum of Rs.50,000/- per month as interim maintenance and to continue to pay the sum of Rs.25,000/- per month towards rental of three-bedroom flat at Prudential Palms. Thereafter, the respondent amended the said application under the Domestic Violence Act to claim a sum of Rs.3,00,000/- per month. Both the parties challenged the order dated 04/08/2009 of the J.M.F.C., before the Sessions Judge who by common judgment and order dated 04/01/2010, passed in Criminal Appeals No. 113/2009 and 124/2009, was pleased to uphold the order dated 04/08/2009, with modification that the amount shall be payable not from 04/08/2009 but from the date of institution of the complaint. The petitioner challenged the order dated 04/01/2010 by filing Criminal Writ Petition No. 34/2010 and by judgment dated 01/10/2012, this Court quashed and set aside the said order dated 04/01/2010. Insofar as the Criminal Appeal for enhancement of the amount payable was concerned, the matter was remanded to the Sessions Judge with direction to re-appreciate the evidence led by both the parties and to dispose of the same afresh in the light of the direction given in the said order.
4. In or about June, 2011, the respondent filed an application under Section 24 of the Act for maintenance, pendente lite, in the said Matrimonial Petition No.20/2009. The respondent prayed for a sum of Rs.2,00,000/- per month as interim maintenance to herself and a sum of Rs.1,50,000/- per month for maintenance of the children. By order dated 09/04/2012, the Trial Court partly allowed the said application by directing the petitioner to pay to the respondent a sum of Rs.1,00,000/- towards the interim maintenance of the respondent and a sum of Rs.50,000/- towards education, clothing and other expenses of the two daughters, by excluding the maintenance granted in PWDV case and a sum of Rs.1,00,000/- per month towards legal expenses and all the future expenses incurred by the respondent towards future legal proceedings. The petitioner challenged the said order dated 09/04/2012, before this High Court and by judgment dated 09/07/2012, passed in Writ Petition No.454/2012, this Court quashed and set aside the said order and directed the Trial Court to decide the application for interim maintenance dated 09/06/2011 afresh after hearing the parties in the light of observations made in the order.
5. The respondent then filed an application dated 30/08/2012 before the Trial Court for appointment of a competent person as commissioner to assess and ascertain the correct income of the petitioner and of the respondent after studying and scrutinizing all the relevant records. By order dated 04/10/2012, the Trial Court rejected the said application.
6. By fresh order dated 05/10/2012, passed on the application for maintenance under Section 24 of the Act, the Trial Court ordered the petitioner to pay to the respondent a sum of Rs.75,000/- per month and to both children Rs.50,000/- each, per month, towards maintenance, excluding the amount of Rs.50,000/- granted to the respondent in Domestic violence case and Rs.25,000/- per month towards legal expenses from the date of filing of the application i.e. from 09/06/2011, on or before 10th of every month. The arrears have been directed to be paid within a period of two months from the date of passing of the order i.e. by 05/12/2012.
7. The petitioner-husband, being aggrieved by the said orders dated 04/10/2010 and 05/10/2012, has filed the present writ petition, challenging the orders on various grounds. The respondent-wife filed Affidavit-in-Reply. The petitioner then filed Affidavit-in-Rejoinder. The respondent filed Affidavit-in-Sur-Rejoinder. Some additional affidavits and replies have also been filed by the parties. Various documents have been relied upon by the parties.
8. By order dated 30/11/2012, this Court had granted ad-interim stay of the impugned order dated 05/10/2012 subject to the petitioner depositing in this Court 25% of the amount awarded as per the impugned order. The petitioner deposited only Rs.1,00,000/-. On 10/01/2013, Rule was issued in the matter. But since the petitioner had failed to deposit the amount and had thus not complied with the order, the ad interim stay was vacated.
9. For the sake of convenience, the petitioner-husband shall hereinafter be referred to by his name i.e. 'Gaurav', whereas the respondent-wife shall be referred to by her name which is 'Radhika'.
10. Mr. Rao, learned Counsel appearing on behalf of Gaurav did not dispute that his wife Radhika and their two minor children are entitled to receive, from him, a certain amount towards their maintenance. However, he contended that this amount should not be a bounty, though, at the same time, it should not be a pittance. According to the learned Counsel for Gaurav, in the entire impugned judgment, there is no finding as to what is the income of either party. Learned Counsel urged that a summary inquiry had to be conducted in the matter, for arriving at reasonable figure of compensation, in view of voluminous documents produced by the parties and disputed questions raised and that it was necessary that a commissioner namely a Chartered Accountant was appointed to ascertain the true income of the parties. He submitted that the impugned order which is not preceded by any inquiry is arbitrary and unsustainable. He submitted that Radhika had herself relied upon and had produced income tax returns of Gaurav on record declaring his income to be Rs.13,00,000/- and Rs.17,00,000/- for the years 2007-08 and 2009-10, but the same was not considered by the Trial Court. According to the learned Counsel, the findings of the Trial Court itself would indicate that the average gross total income of Gaurav during the period of five years from 2008 to 2011 was Rs.1,75,000/-. According to the learned Counsel, since Radhika had made an application for maintenance, she had to prove the income of Gaurav and had to produce documents establishing the same. He pointed out that admittedly Gaurav was paying Rs.35,000/- to Radhika since September, 2008 and that in 2009 Radhika had filed application under Domestic violence Act, for total maintenance amount of Rs.67,500/- for herself and for her children, but after just eighteen months, Radhika amended the said application under Domestic Violence Act to claim exorbitant sum of Rs.3,00,000/-. Learned Counsel contended that there was no justification for such hike in the claim. Learned Counsel contended that from August 2009, Radhika was getting Rs.50,000/- per month and Rs.25,000/- per month under the Domestic Violence Act. He questioned as to what made her to stick to the said amount of Rs.75,000/- only for about two years till June, 2011. He submitted that though the Trial Court framed the point for determination regarding the quantum of compensation, however, no reasons for arriving at the figure of awarded compensation, are given. He submitted that in the impugned order dated 04/10/2012, though the Trial Court made a reference to the document of Chartered Accountant saying that the same itself would be sufficient to decide the application for interim maintenance, however, the Trial Court did not even consider the said document of Chartered Accountant. Learned Counsel submitted that a shareholder is nobody in a Company, as far as assets are concerned and only if Company is liquidated, one can get his share. He further submitted that even Radhika is shareholder of GKB Vision holding 57,500 shares and is being paid dividend on those shares. He submitted that as a Director, Gaurav gets perquisites but Radhika also gets such benefits and had actually had availed of the same. He submitted that Gaurav uses only one car named 'Volks Wagon Jetta' owned by GKB Vision Limited and that other cars are owned by the other group Companies and are not used by Gaurav. He further urged that the Bungalow âAnukampa 60â belongs to the parents of Gaurav. Learned Counsel pointed out from the impugned judgment that the Trial Court heavily relied upon the terms of settlement dated 14/10/2008. He submitted that these terms of settlement never ended in a concluded contract and were never acted upon. He urged that the said settlement terms were out of informal mediation. He urged that an unsuccessful mediation would not amount to a concluded contract. Learned Counsel further urged that Gaurav might have promised anything but the question is whether he was capable of payment or not. He submitted that nothing stated in the said settlement terms had happened as for example Gaurav had not made any deposits nor joint divorce proceedings had been filed. He further pointed out that the said settlement terms provided for one time final settlement which did not work out. He therefore urged that the said settlement terms could not have been relied upon. He submitted that the trips of the parties to foreign countries were business trips. He also submitted that only from the photographs on record, the life style of Gaurav had been determined, which was wrong. He submitted that insofar as the expenses of the proceeding, as mentioned in section 24 of the Act, are concerned, at the time of enactment of the Act, Legal Services Authorities Act was not in force which provided for free legal aid to woman. He submitted that even otherwise, they are the expenses of the proceedings under the Act only and not any other proceedings. He pointed out from the schedule of expenses filed by Radhika that proceedings other than those under the Act have been included in the same and an exorbitant amount has been claimed. According to the learned Counsel, matter has not been appreciated properly by the Trial Court, even after remand for fresh consideration. Learned Counsel virtually read out each and every document on record and tried to make out as to how the said documents do not establish the financial capacity of Gaurav to pay maintenance as granted.
11. Learned Counsel for Gaurav relied upon the following judgments:-
(a) âNeeta Rakesh Jain Vs. Rakesh Jeetmal Jainâ, [(2010) 12 SCC 242],
(b) âMoti Ram (Dead) Through Lrs. and Anr. Vs Ashok Kumar and Anr.â [(2011) 1 SCC 466.
(c) âMrs. Bacha F. Guzdar, Bombay Vs. Commissioner of Income Tax, Bombayâ (A.I.R. 1955 SC 74)
(d) âAnnu Kaul Vs. Rajeev Kaulâ [(2009) 13 SCC 209]
12. On the other hand, Mrs Agni, learned Counsel appearing on behalf of Radhika submitted that it is Gaurav who deserted Radhika and children and if Gaurav is ready to take her to matrimonial abode, she is ready to join him with children, even now. Learned Counsel submitted that Section 24 of the Act does not contemplate any inquiry and being an interim relief, only the affidavits and documents produced by the parties are to be considered. Learned Counsel urged that since there was ample documentary evidence on record, the Trial Court rightly rejected the application of Gaurav for appointment of Chartered Accountant as commissioner to determine the financial capacity of the parties. She pointed out that the settlement terms signed by Gaurav emanated from mediation initiated by the cousins of Gaurav and the agreement was signed by the parties without any coercion. Counsel urged that the picture which emerges from this settlement is certainly the financial capacity of Gaurav. She urged that it cannot be believed that a literate person like Gaurav would sign something serious without reading and understanding the consequences thereof. She pointed out that the said settlement terms show that Gaurav had agreed to pay to Radhika and children more than Rs.2,00,000/-. According to the learned Counsel, maintenance for leading life to which the wife-Radhika was used to after marriage and children were used to after their birth had to be awarded. She urged that the impugned order is absolutely correct. Learned Counsel invited my attention to and read out various paragraphs of the affidavits filed by the parties, documents on record and various paragraphs of the impugned order and submitted that there is wealth of material in support of the impugned order. Learned Counsel urged that there are documents showing that Gaurav is director of multinational company making profit in Crores of rupees and the company is such in which the directors are the family members. She submitted that the Court had to see as to what inference should be drawn from the above facts. Counsel pointed out that in paragraph 98 of the Matrimonial Petition No.20/2009, Gaurav has himself stated that when he and Radhika resided together, he would provide Radhika any sum of money as and when she required for her personal expenditure. Learned counsel submitted that the impugned order is in accordance with settled principles of law and no interference with the same is warranted, in the limited exercise of the writ jurisdiction.
13. Learned Counsel appearing on behalf of Radhika relied upon following judgments:
(a) âShalini Shyam Shetty and Anr. V/s Rajendra Shankar Patilâ [(2010) 8 SCC 329],
(b) âJai singh and Others Vs. Municipal Corporation of Delhi and Anr.â [(2010) 9 SCC 385]
(c) âJasbir Kaur Sehgal (Smt) Vs. District Judge, Dehradun And othersâ [(1997) 7 SCC 7],
(d) Judgment dated 16/01/2009 of Delhi High Court in FAO (OS) 139/2006 (âRadhika Narang and Others Vs. Karun Raj Narang and Anotherâ)
(e) Judgment dated 30/10/2012 of Delhi High Court in in CRIL. M. CV. No.2748/2010 (âRidhima Juneja Vs. Devan Juneja and Ors.â)
(f) Judgment dated 20/12/2013 of Delhi High Court in FAO 143/2013, C.M.No.4725/2013. (âVikaas Ahluwalia Vs. Simran Ahluwaliaâ)
(g) Order dated 16/11/2010 of Bombay High in Writ Petition No.4641/2010 (Shrish H. Garg Vs. Nidhi S. Garg)
14. I have gone through the entire material on record and considered the submissions made on behalf of the parties and the judgments relied upon by them.
15. Section 24 of the Act lays down as under:
â24. Maintenance pendente lite and expenses of proceedings.- Where in any proceedings 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 proceedings, 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.â
16. Admittedly, the impugned order dated 05/10/2012 is under Section 24 of the Act. Hence, it is temporary in nature and the court cannot be expected to go deep into the merits of matter. Application under Section 24 of the Act is a summary proceeding and it is not necessary for the Court to record evidence. The matter can be decided on the basis of pleadings supported by affidavits and documents that may be filed by the parties in support of their contention. The reason for enactment of Section 24 of the Act is that either spouse who has no independent income sufficient for her or his support or enough to meet the necessary expenses of the proceedings may not unduly suffer during the pendency of matrimonial proceedings between the parties. There is no dispute that the wife or the husband can make an application claiming maintenance pendente lite for herself or himself as also for their children. The Act does not define âmaintenanceâ. Section 3((b)(I) of the Hindu Adoption and Maintenance Act, 1956 provides that âmaintenanceâ includes provision for food, clothing, residence, education and medical attendance and treatment. It is within the discretion of the Court to make an order for interim maintenance and litigation expenses. While deciding quantum of maintenance and litigation expenses, under Section 24 of the Act, discretion is to be exercised judiciously. The appellate Court must be slow and and cautious in interfering with an order granting maintenance pendente lite and expenses under the provision. In the present case, one thing is clear that the Trial Court decided the application of Radhika, filed under Section 24 of the Act, twice. Once by order dated 09/04 2012, the Trial Court granted a sum of Rs.1,00,000/- towards the interim maintenance of Radhika and her two daughters; Rs.50,000/- each towards the education, clothing and other expenses of the said children and a sum of Rs.1,00,000/- per month towards legal expenses and future legal proceedings, all that excluding the maintenance granted in PWDV case. After the above order dated 09/04/2012 was quashed and set aside by this Court with a direction to the Trial Court to decide the application afresh by observing that the Trial Court had not given any reasons nor had considered the material adduced by both the parties to come to the conclusion that Gaurav was liable to pay the said amounts, the Trial Court, by detail impugned order dated 05/10/2012, decided the matter afresh. This time, the Trial court, framed the point for determination and after taking into account the material on record, ordered Gaurav to pay a sum of Rs.75,000/- per month to Radhika and a sum of Rs.50,000/- each per month to both the children, towards maintenance and Rs.25,000/- per month towards legal expenses from the date of filing of application, and all excluding the amount of Rs.50,000/- granted to Radhika in D.V. Case. The Trial Court has sufficiently discussed and determined the financial capacity of Gaurav, in the impugned order.
17. In the case of âShalini Shyam Shetty and Anr.â (supra), the principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution have been formulated as under:
â(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh; AIR 1954 SC 215 and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, âwithin the bounds of their authorityâ.
(f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar vs. Union of India and others; (1997) 3 SCC 261 and therefore abridgment by a Constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to High Court.
(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality.â
18. Thus, from the provision of Section 24 of the Act, it is clear that the proceedings under this provision are summary in nature and since an order for interim maintenance by its very nature is temporary, a detailed and elaborate exercise by the Court may not be necessary. In view of the fact that these proceedings are for interim relief during the pendency of main proceedings under the Act, they must be disposed of expeditiously so that the main proceedings can be disposed of. From the principles laid down by the Apex Court, in the case of âShalini Shyam Shettyâ (supra) as also in the case of âJai singh and Othersâ (supra), it is settled that High Court cannot interfere with the order of the Trial Court to correct mere errors of law or fact or just because another view than the one taken by the Trial Court is a possible view. The jurisdiction has to be very sparingly exercised. This Court, therefore, has to see whether there has been a patent perversity in the order of the Trial Court or whether there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted, while determining the amount of interim maintenance and expenses of litigation.
19. In the case of âNeeta Rakesh Jainâ (supra), the Hon'ble Supreme Court held that in the matter of making an order for interim maintenance, the discretion of the Court must be guided by the criterion provided in Section 24 of the Act, 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. It has been specifically held that 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 statue.
20. It was contended by the learned Counsel for Gaurav that in the case of âNeeta Rakesh Jainâ (supra), on the basis of income of Rs.30,000/-, the appellant-wife was granted maintenance of Rs.12,000/- only. However, the said order fixing maintenance as above was set aside by the Hon'ble Supreme Court. In the case supra, the appellant-wife had made an application under section 24 of the Act for direction to the husband to pay to her interim maintenance of Rs.50,000/- per month. The appellant had stated that the husband's income was Rs.2,00,000/- per month approximately. It was stated that the husband was a highly qualified person; he was a chartered accountant (CA) and had also passed the examination for Cost and Works Accounts of India (ICWA). He passed Chartered Institute of Management Accountants (CIMA), UK, examination in May 1999 and also completed the course of Computer Information Technology. According to the wife, at the time of marriage the husband was working with M/s Kalpataru Constructions at Mumbai drawing a salary of Rs.40,000/- per month; in 1996 he changed his job and was appointed as Finance Manager with M/s Kimberly Clark, Pune (a multinational company) at double the salary and in May 1998 he joined a highly reputed software company, namely M/s Tata Technology on substantially increased salary. In 1996, the husband was sent to Sri Lanka by the Company as a Senior SAP Consultant where he was entitled to a chauffeur-driven Toyota van and a large bungalow to live. He returned to Pune in August 1999 and at that time his monthly income was about Rs.1,50,000/-. The wife further averred that somewhere in January 2000 the husband started his own company in the name and style of M/s Paysquare Consultancy Limited at Pune and engaged several computer and IT engineers, chartered accountants and MBAs as employees. As regards her own income the wife stated that she did not have any independent source of income and was pursuing her studies of PhD at the mercy of her elder sister who had been supporting her since 2001. The husband alleged that he joined the service with M/s Kalpataru Constructions as an entry level job with a total income of Rs.7,000/- per month and that his salary in M/s Kimberly Clark was Rs.15,000/- per month while his salary in Tata Technology was Rs.20,000/- per month. He further claimed that having worked for six years, he decided to start on his own and put all his savings in the company M/s Paysquare Consultancy Limited. He stated that he was not the sole owner or proprietor of the Company and that from August 2005 he started drawing the salary of Rs.30,000/-. The Division Bench of the High Court of Bombay observed that since an application for interim maintenance was being considered, it was not inclined to deal with the submissions advanced by the Counsel for the parties on the earning capacity of the husband in extenso and accepting the husband's statement that he was getting Rs.30,000/- per month, fixed an amount of Rs.12,000/- per month as interim maintenance to the wife. Considering the qualification, experience and other factors with regard to the husband, the Hon'ble Supreme Court found that the stand of the husband that he was drawing a salary of Rs.30,000/- per month from the company since August 2005 was inherently improbable. It was held that the High Court did not take into consideration the vital aspects and accepted the statement of the husband that he was drawing a salary of Rs.30,000/- per month as a gospel truth. The Appeal was partly allowed. The impugned order was set aside and the Civil Application for interim maintenance was restored to the file of the High Court for fresh consideration. The judgment in the case of âNeeta Rakesh Jainâ (supra), in my view, helps Radhika and not Gaurav.
21. In the case of âJasbir Kaur Sehgal (Smt)â (supra), the Hon'ble Apex Court has observed thus:
â8. The wife has no fixed abode of residence. She says she is living in Gurudwara with her eldest daughter for safety. On the other hand husband has sufficient income and a house to himself. The wife has not claimed any litigation expenses in this appeal. She is aggrieved only because of the paltry amount of maintenance fixed by the court. No set formula can be laid for fixing the amount of maintenance. It has, in the very nature of things, to depend on the facts and circumstances of each case. Some scope for leverage can, however, be always there. The Court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with the husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate. In the circumstances of the present case we fix maintenance pendente lite at the rate of Rs.5,000/- per month payable by respondent-husband to the appellant-wife.â
22. In the case of âRadhika Narang and Ors.â (supra), the Division Bench of the Delhi High Court vide judgment dated 16/01/2009, has observed that the Court must first arrive at the net disposable income of the husband or the dominant earning spouse. If the other spouse is also working, these earnings must be kept in mind. This would constitute Family Resource Cake which would then be cut up and distributed amongst the members of the family. The apportionment of the cake must be in consonance with the financial requirements of the family members, which is exactly what happens when the spouses are one homogeneous unit. In paragraph 24 of the judgment in the case supra, the learned Division bench has observed as under:
â24. The Hon'ble Supreme Court in the case of Komalam Amma Vs. Kumara Pillai Raghavan Pillai and Ors. in SLP(C) No. 3670/2005 decided on 14th November, 2008 has laid down the following proposition of law with regard to maintenance :
9. Maintenance, as we see it, necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less, to which she was accustomed. The concept of maintenance must, therefore, include provision for food and clothing and the like and take into account the basic need of a roof over the head. Provision for residence may be made either by giving a lump sum in money, or property in lieu thereof. It may also be made by providing, for the course of the lady's life, a residence and money for other necessary expenditure. Where provision is made in this manner, by giving a life interest in property for the purposes of residence, that provision is made in lieu of a pre-existing right to maintenance and the Hindu lady acquires far more than the vestige of title which is deemed sufficient to attract Section 14(1). (emphasis supplied).â
23. In the case of âAnu Kaul â (supra), during the pendency of the husband's appeal before the High Court, application was filed by the wife for maintenance under section 24 of the Act. The High Court awarded interim maintenance of Rs.2000/- for minor child living with her and Rs.10,000/- towards litigation expenses. Husband was working as senior officer in a company, drawing a monthly salary of Rs.40,000/- and entitled to claim perks for education of his children. The wife was drawing a monthly salary of Rs.9,000/- but had asserted that she was paying Rs.3,000/- per month by way of rent for the tenanted premises. The child was growing up and studying in senior school but according to the wife, child's education was being hampered due to insufficient funds. The Hon'ble Supreme Court held that having regard to appellant's wife earning, maintenance awarded by High Court need not be enhanced, bur considering the facts that the child being daughter of a highly placed officer, exorbitant fee structure in good schools and cost of living, respondent-husband is liable to pay Rs.5,000/- per month to appellant-wife for maintenance of the child with effect from 01/04/2009 till the pendency of husband's appeal before High Court.
24. In the case of âRidhima Junejaâ (supra), in two letters, the respondent-husband had claimed that he was paying a sum of Rs.1,50,000/- to his wife as pocket allowance for her personal expenses. It was not in dispute that the respondent-husband had taken his wife for honeymoon to Australia, New Zealand and Thailand and on the occasion of their first wedding anniversary, they had gone to South Africa. As per the petitioner-wife, her husband was leading a lavish and luxurious life and driving BMW car. The Counsel for the respondent-husband did not dispute these facts but the submission was that the husband had been enjoying lavish life not with his own money but his wealthy parents had been giving him money being the only son and that ever since disputes arose between him and his wife, they had not only disowned him but also he had been turned out of their house and now he was at the mercy of one of his friends for residence. Learned Counsel for the appellant-wife submitted that all that was utterly false and showed photographs showing that after disowning the petitioner-wife, her husband had been flirting with other girls on the beaches of Goa which fun he could not have unless he had tons of money. It was further submitted that the husband was also owning immovable properties and having a big shareholding too and that it was falsely being claimed by him that his lavish lifestyle was being funded by his wealthy parents or that he has now been disowned by them. It was further submitted that these kinds of pleas are invariably taken these days by parents whenever matrimonial disputes arise between their sons and daughters-in-law to avoid grant of financial benefits to daughters-in-law by the Courts. Considering all the facts and circumstances, the High Court of Delhi declined to believe the case of the respondent-husband. The High Court directed that a sum of Rs.1,50,000/- should be paid by the respondent-husband to the petitioner-wife, for herself as well as for their minor son from the date of filing of the complaint under Section 12 of the Domestic Violence Act, 2005, till the said complaint is again disposed of by the trial Court.
25. In the case of âVikaas Ahluwaliaâ (supra), an application under Section 24 of the Act seeking an interim monthly maintenance of Rs.4,60,000/- was filed by the wife in pending matrimonial proceedings and the Family Court had directed the husband to pay Rs.1,25,000/- per month as interim maintenance to the wife and a further sum of Rs.1,00,000/- as litigation expenses. In the Appeal filed before the Delhi High Court, the husband claimed that the direction given by the Family Court was beyond his means, since his salary was Rs.13,88,862/- before tax deduction and after deduction the net income was approximately Rs.10.90 lakhs. It was alleged by the husband that the respondents, inter alia, had claimed an exorbitant amount of Rs.4,60,000/- per month on various untenable heads. It was submitted that these heads included costs for security personnel (Rs.70,000/-), insurance, car maintenance, etc. It was submitted that analysis of the various amounts showed that the annual sum of Rs.20,60,000/- was claimed under several other additional heads. It was further submitted that these betrayed rank unreasonableness and a tendency to exploit, and further, it was urged that the Court had to consider only expenses based on reasonable probabilities and estimate of having regard to the lifestyle, but not pander to the fancies of an applicant. The Counsel emphasized that the assessment of maintenance had to be realistic, based on expenses that could be legitimately incurred and it could not become an exercise in asset or wealth building of the applicant at the expense of the respondent. It was submitted that the family Court fell in error in deciding the quantum of maintenance as the wife never gave any details of her reasonable needs as required under Section 24. Further, it was submitted that the husband's current income was approximately Rs.10,00,000-/ per annum after deduction of tax, as was evidenced from his tax returns for the years 2006-2007, 2007-2008, 2008-2009, 2009-2010, 2010-2011, which were filed on 23/11 2011. It was urged that the High Court, in maintenance suit, correctly assessed the reasonable needs of the wife and directed payment of Rs.75,000/- per month, in addition to casting obligations upon the husband to ensure that a chauffeur-driven car and a certain quantity of petrol was made available to the wife and children. It was also submitted that the reasonable expenses of the child's upkeep would be the responsibility of the husband, was again a factor duly considered by the High Court and provided for by the Court in the maintenance suit. It was therefore argued that the High Court should at least modify the impugned order of the Family Court. On the other hand the Counsel for the wife submitted that the husband was the sole heir to a vast construction and real estate business, controlled by his family. It was claimed that the husband's family had also floated various companies in the capacity of an HUF. It was submitted that the husband maintained a car provided by the company for which he worked. The husband was a salaried director and earned Rs.50,000/- per month and had offered the same amount to his wife and his child. Though, in response, the husband submitted that he was nominal shareholder in M/s Ahluwalia Contracts (India) Ltd., however, his affidavit showed that he owned number of shares in different companies, which showed that he had a considerable amount of income. It was submitted by the Counsel for the wife that the Ahluwalia Group of Companies had considerable turnover, in excess of Rs.1,000 crores and that it had built several prestigious educational institutions, residential complexes, hospitals, industrial estates, five-star and deluxe hotels. It was further argued that the husband's father headed and controlled the Group and that the resources, financial clout and wealth of the husband and his family was unimaginable. The High Court observed that the Family Court had taken note of all these factors and the well-known fact that when matrimonial differences surface, husbands tend to suppress their real income and even resort to asset transfers to avoid payment of legitimate dues to their wives. In her application, the wife had clearly specified the kind of life style and status which she enjoyed during her stay with the husband. She had a supervisor, cook, three helpers, two maids, one gardener, four drivers, one plumber and 24 hours security guards with Group-4 Security gunman at her command. The house was equipped with various electronic gadgets. The wife had also mentioned the life style to which her daughter was used to such as small swimming pool and swings installed in the house. To sum up, their house contained all five-star facilities. The High Court observed that the Court, in considering an application for interim maintenance, had to take into consideration the financial status of the parties, the earnings and the earning capacity of both the spouses. It was further observed that while granting maintenance, the spouse claiming maintenance, should as far as possible be kept in the same status which he or she enjoyed while being in the matrimonial life with the other spouse and also the family status is another aspect to be considered. The High Court of Delhi further observed as follows:-
â16. In this case, the Family Court, while deciding the application under Section 24, has taken into consideration various factors pertaining to the matrimonial life of the parties, particularly their lifestyle, financial status, etc. and this was in line with the decision in Vinny Parmvir Parmar V. Parmvir Parmar, (2011) 7 Scale 741, where the supreme Court held that the quantum of maintenance inter alia depended on the status of the husband. There, the Court recalled the considerations as follows:
'12.............. The Court has to consider the status of the parties, their respective needs, the capacity of the husband to pay, having regard to reasonable expenses for his own maintenance and others whom he is obliged to maintain under the law and statute. The Courts should also have to take note of the fact that the amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and mode of life she was used to live when she lived with her husband. At the same time, the amount so fixed cannot be excessive or affect the living condition of the other party................' â
26. The Delhi High Court in the case of âVikaas Ahluwaliaâ (supra), also referred to the factors for consideration mentioned by the Apex Court in the case of âJasbir Kaur Sehgalâ (supra), which I have already quoted in paragraph 20 above. The High Court also referred to the factors mentioned by the Apex Court in the case of âSh Bharat Hegde V. Smt. Saroj Hegdeâ, 140 (2007) DLT 16, which are: status of the parties; reasonable wants of the claimant; the independent income and property of the claimant; the number of persons, the non-applicant has to maintain; the amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in matrimonial home; non-applicant's liabilities, if any; provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant; and the payment capacity of non-applicant. The High Court observed that some guesswork is not ruled while estimating the income of the non-applicant when all the sources or correct sources are not disclosed. Ultimately, the Delhi High Court held that the Family Court not unreasonably held that the true income of the applicant did not surface and efforts were made to hide the true income. The High Court affirmed the Family Court's direction to pay maintenance amount of Rs.1,25,000/- per month and Rs.1,00,000/-.
27. From the various judgments of the Hon'ble Supreme Court and High Courts, relevant factors to be considered by the Court while fixing the amount of maintenance under section 24 of the Act, pendente lite, may be stated as follows:- The means i.e. financial status of the parties; the earnings and the earning capacity of both the spouses; the respective needs of spouses; the capacity of the spouse to pay having regard to his/her reasonable expenses for his/her own maintenance and of those he/she is obliged under the law and statutory but involuntary deductions; social status of the parties; the background from which both the parties come from; the economical dependence of the spouse claiming maintenance; the spouse claiming maintenance should as far as possible be kept in the same status which he or she enjoyed while being in the matrimonial life with the other spouse and also she should not feel handicapped in the prosecution of her case; the family status of the parties, etc.. No strait-jacket formula can be laid for fixing the amount of maintenance. It has, in the very nature of things, to depend on the facts and circumstances of each case. Some scope for leverage can, however, be always there. Some guesswork is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed.
28. Gaurav is a Computer Engineer with distinction from MIT, Manipal. He is MS in computer science with distinction from U.S.A.. He is an able bodied person. There is no dispute that Gaurav and Radhika got married on 17/04/1998, in the presence of family members and friends, in Agra. According to Radhika, the marriage was performed in a Five-Star Hotel in Agra. Though Gaurav appears to have denied the above in a casual manner, he did not state as where the marriage was performed. Hence, it can be said that the marriage was performed in a Five-Star Hotel in Agra. After the marriage, Radhika moved into the matrimonial house âAnukampaâ, 60, Green Valley, Alto-Porvorim, Goa. The photographs of this bungalow show that the same is a spacious lengthy bungalow with basement having servant quarters, ground floor and first floor, surrounded by a beautiful compound wall with gates; manned by security personnel; having parking spaces; expensive cars inside the compound; Air Conditioners in the rooms; Jogger's park, Vegetable orchard in the backyard, garden, etc. Gaurav did not deny that this is their matrimonial house. However, in paragraph 15 of the reply, he alleged that this matrimonial house belongs to his mother Veena Gupta. Even the legal notice for mutual divorce was sent by Gaurav to Radhika at the said matrimonial house. The parties together have â Anukampa, 60, Green Valley, Alto Porvorim, Goa 403521â as their permanent address in the Passports, Voter IDs, PAN cards, Gas Connection, Insurance Policies, Bank Accounts, Income Tax Returns, etc. No document of ownership of the said house in favour of the mother of Gaurav has been produced on record. Gaurav himself has stated that he along with Radhika resided in Germany for a period of 2 to 3 years after the marriage, though he added that there he had taken up the task of setting up a marketing and distributing company for the goods manufactured by his company in India. GKB Ophthalmics, thus, has a base even in Germany. In January 2008, Gaurav had gone to U.S.A. on a business trip. He had arranged visa for Radhika to accompany him to U.S.A. The passports and visas of the parties reveal that they had been to countries like Switzerland, U. K. ,etc. Mr. Krishna G. Gupta, the Chairman and CEO of GKB Ophthalmics, in his book âMansion of glass:The GKB storyâ has stated that his son Gaurav is professionally qualified and helps him in optical lens business under the GKB banner. The book says that GKB has regularly won export awards and they had revived their business in Iran and had also established themselves well in Europe. The said book also reveals that GKB Ophthalmics is a Company worth Rs. 1200 million (Rs.120 crore). In Chapter 52 of the book, it is mentioned that GKB Ophthalmics were regularly making profits and paying dividend every year. An article published in the magazine of the corporate world âBusiness Indiaâ dated 04/10/2009 says that GKB Ophthalmics aims to become a global multipurpose ophthalmic outsourcing company and that with GKB witnessing good growth, Vikram and Gaurav Gupta, the two sons are slowly taking over the reins of the company; Vikram, the eldest son will look after the new JV with Indo, while Gaurav will concentrate on exports. The article says:
âStarted by K. G. Gupta in 1960 with a capital of Rs.35,000/-, GKB Ophthalmics' first big break came in 1975 with an export order for Iran. For GKB, exports have always been its forte with 33 per cent being exported to the Middle East, Europe, the US, Far East and Africa. In 2008-09, the company exported lenses worth Rs.80 crore, compared to Rs.60 crore in 2007-08. Domestic sales have also risen from Rs.24 crore in 2007- 08 to Rs.26 crore in 2008-09.â
29. Admittedly, Gaurav has shareholdings in eight companies named in paragraph 31-C of the application filed by Radhika under section 24 of the Act. Admittedly, Gaurav and his parents are Promoters and Directors of most of the companies under the flagship of GKB and Prime Group of Companies. Gaurav himself has stated in paragraph 42 of the reply to the application filed by Radhika, under Section 24 of the Act that he holds 8.30% shares of GKB Ophthalmics. In April 2012 he had 8.43% of the shares and there is document on record to show that 8.43% is 3,50,317 shares, at the rate of about Rs.30/- per share. He has further stated that he holds 11.38% shares in GKB Vision, and 9.04% in Prime Lenses Pvt. Ltd., besides having shareholding in other companies. If really Gaurav was in minus, the question arises as to how he could purchase so many shares. There are posh cars such as Audi A6, VW Jetta, Honda Accord, Lancer, Honda CRV, etc. at the disposal. GKB Ophthalmics can be said to be a closely held family business of Gaurav and his family members exporting eye lenses almost all over the world. An advertisement in the news papers âNavhind timesâ dated 30/10/2009 and âEconomic Timesâ says that the net profit of GKB Ophthalmics Limited had tripled (increased) by 300% in 2009- 10 as compared to 2008-09. As a full time director, Gaurav is bound to get 1% commission on net profits. No doubt, Gaurav has stated that though provided for in the books, he has not being paid of the said commission and the net profits of the company has fallen down. But prima facie, the records reveal that Gaurav cannot be believed, in this regard. In the case of âMrs. Bacha F. Guzdar, Bombayâ (supra), relied upon by the learned Counsel for Gaurav, it has been held that the fact that a share-holder acquires a right to participate in the profits of the company may be readily conceded but it is not possible to accept the contention that the share-holder acquires any interest in the assets of the company and that a share-holder has no right in the property of the company. He has undoubtedly a right to participate in the assets of the company which would be left over after winding up but not in the assets as a whole. Thus, the fact remains that Gaurav has right to participate in the profits of numerous companies of which he is a share-holder. As rightly submitted by learned Counsel for Radhika, we need not go into the issues of shares, dividends, etc. and what we have to see is as to what inference can be drawn from the fact that Gaurav is director of multinational company making profits in crores. Gaurav can afford to spend Rs.25,600/- and Rs.17,000/- per month towards rentals of the flats, one occupied by Radhika and their children and the other allegedly occupied by him. The photographs on record reveal that Gaurav used to enjoy lavish parties with his friends. The photographs reveal as to how highly the functions were organized for birthdays, Holi and Diwali in the family house and how effluent was the life style of the parties. He has several LIC policies. The fact that one of the wrist watches worn by Gaurav itself costs about Rs.4,00,000/- is not denied by him. According to Radhika, Gaurav used to keep cash over ` one lakh, in the cupboard for Radhika to use whenever required. They used to stay in Five star hotels, travel by air, use branded clothes, branded perfumes, different types of footwears, etc. They and their children used to sleep in separate bedrooms with LCD and Air conditioners. Gaurav used to spend huge amounts by his credit card. The evidence on record, as held by the Trial Court, establishes that Radhika and her children were living a rich and affluent life, in an high class society till she was staying with Gaurav. Gaurav and his family members own movable and immovable assets worth several crores of rupees, in Goa, Mumbai, Noida and even abroad. The denials of Gaurav have to be scrutinized in the light of the settlement terms dated 14/10/2008 signed by him.
30. It may be true, as alleged by Gaurav, that six months prior to the filing of the application under section 24 of the Act, he was paying only Rs.35,000/- per month to Radhika and children towards maintenance and rent of Rs.25,000/- per month in respect of the flat occupied by Radhika and children in Prudential Palms and that after the order passed in Domestic violence Case, he started paying ` 50,000/- to Radhika. However, the contention of the learned Counsel for Gaurav that the above establishes that the said maintenance amount was sufficient for Radhika and children and hence she had kept quiet for six months is not acceptable. Radhika, in her application under Section 24 of the Act, has fully explained as to how she needs more amount and as to why she is entitled to the same. She has stated that it is becoming extremely difficult financially to cope up with the interim monetary relief granted to her by JMFC keeping in view the changed circumstances, the growing needs of the two children, soaring cost of living and the inflation (the recent rice in petrol prices, LPG and essential food items, education cost and general rise in the cost of living) and that since she and children are accustomed to a particular standard of living and the lifestyle enjoyed while she lived with Gaurav, she would need Rs.3,50,000/- per month to maintain herself and children. Radhika had even filed appropriate amendment application in the proceedings under the Domestic Violence Act to claim a sum of Rs.3,00,000/- per month. Radhika requires money for orthodontist treatment of both the children, which according to her would be around Rs.50,000/- to Rs.60,000/- for Khushi and further amount for Saachi. She requires money for petrol and repairs of the 'Honda City' car provided to her. She has to pay electricity bills, internet connection which children need for their school project, home furnishing, birthday parties of children, household needs like gas connection, purchase of vegetables, fruits, domestic help salaries, etc., etc. Radhika requires money for repayment of loans. The above are only some of the expenses. In fact, Radhika has produced documentary evidence of the expenses required to be made by her.
31. The judgment dated 29/12 2011 passed by the Child Welfare Committee reveals that both the children of Radhika and Gaurav are going through stress on account of separation of their parents. The elder daughter Miss Khusi is having Trichotillomania (hair pulling stress) which requires treatment from a psychologist to overcome her stress. There are photographs on record showing the condition of hair of Miss Khushi. As per the judgment of the CWC even the younger daughter Sachi looked disturbed. Certainly, for best medical treatment of the children of Radhika and Gaurav, money would be required. Then, money is also required for clothing, food, education, extracurricular activities like dancing classes, swimming classes, etc., outings, etc. of the children, in the manner in which they were used to, prior to separation of the parents. The children go to one of the best schools namely âSharada Mandirâ, where the fees appear to be about Rs.3200/- to Rs.3,500/- per month for the elder daughter and Rs.3,300/- to Rs.3,600/- per month for the younger daughter, besides various other charges like non-refundable deposit, home tuition fees, school transportation, library fees, developmental fees, school sports T-shirt and accessories, school magazine, expenses on project work, home science assignment, club activities, text books, other stationary, etc. Considering the expenses required these days even for a middle class family, for overall growth and development of children, in my view, the amount of Rs.50,000/- per month to each of the children of upper class couple, as maintenance, is not unreasonable.
32. Gaurav has produced on record various documents in order to establish that he is unable to pay the amount of maintenance as awarded by the Trial Court. He has given charts with details of his income and has tried to show as to how his income through salary being director of the companies goes in minus. He has produced certificate issued by chartered accountant. He has produced Income Tax Returns. In the income tax returns for the year ending 31/03/2012, the salary of Gaurav is shown as Rs.21,40,842/- from the GKB Vision Ltd.; the income from other sources i.e. bank and other interests is shown as Rs.86,818/-; director sitting fees at Rs.85,000/-. The gross income of Gaurav is shown as Rs.23,12,660/-. For the period ending 31st March 2011, the income from salary received from GKB Vision Ltd. was Rs.1,649,200/-; income from other sources i.e. bank and other interest was Rs.36,916/-; director sitting fees at Rs.70,000/-. The gross income was Rs.1,756,116/-. The chartered Accountant namely Mr. Dinesh Heda has certified that the net income of Gaurav for the period 2003-04 was Rs.5,94,902/-; for the period 2004-05 was Rs.6,55,859/-; for 2005-06 was Rs.15,77,539/-; for 2006-07 was Rs.18,31,412/-; for 2007-08 was Rs.16,77,697/-; for 2008-09 was Rs.17,43,433/-; for 2009-10 was Rs. 25,01,200/-; for 2010-11 was Rs.26,69,982; for 2011-12 was Rs.23,11,499; and for the period 2012-13 was Rs.17,80,568. However, considering the overall documentary evidence on record, it is very difficult to believe that the income tax returns show the correct financial position of Gaurav. In Writ Petition No. 4641/2010 (Shirish H. Garg Vs. Nidhi S. Garg), this Court (Smt. Roshan Dalvi, J), vide order dated 16/11/2010, has observed that the consideration of the income contemplated under Section 24 of the Act does not mean that only the numerical figures shown in the income tax returns of a party can be taken for the gospel. In Writ Petition No. 569/2010 (Amit Rasiklal Shah Vs. Sonal Amit Shah), this Court (Smt. Roshan Dalvi, J), vide order dated 18/11/2010, has held that it is settled position in law that the tax returns of a party shown by the party in Court, specially in matrimonial proceedings, cannot be taken for the gospel. Thus, the income tax returns as well as the certificate of Chartered Accountant based on such income tax returns cannot be wholly relied upon to determine the income of Gaurav.
33. Admittedly, there was mediation meeting held at the residence of Mrs. Rachita Velho and Mr. Verner Velho, on 14/10/2008 in which settlement terms were drawn and it was resolved in the presence of Sanjeev Gupta/Mrs. Archana Gupta, Mr. Verner Velho/ Mrs. Rachita Velho and Gaurav/Radhika that the amicable settlement between Gaurav and Radhika was agreed upon by both the parties on the terms and conditions as mentioned in the said minutes of the meeting. Deadline for implementation was fixed as 1/12/2008 Briefly , the following were the terms and conditions:
I. HOUSE:
1. Mr. Gaurav Gupta to provide to Mrs. Radhika Gupta a three bedroom apartment in the 6th block of Prudential Project at Porvorim, which should be exclusive in her name, without any liabilities, mortgages or liens attached to it.
2. The apartment will be fully furnished by Mr. Gaurav Gupta and would include Kitchen equipments, T.Vs, A/Cs, furnitures, fixtures, etc.
3. A New Honda City car with driver will be provided to Mrs. Radhika Gupta. The cost of maintenance and salary of the driver will be borne by Mr. Gaurav Gupta and also a new Honda City or equivalent car will be provided to Mrs. Radhika Gupta every five years.
II. ALIMONY/FINANCIAL SECURITY :
1. Average monthly tax free income of Rs.1,00,000/- per month, partly in the form of monthly remuneration/alimony shall be paid by Mr. Gaurav Gupta to Mrs. Radhika Gupta and partly by way of fixed deposits in her name, exclusively.
2. Within a period of two years, 75% of the said income should come from fixed deposits in Radhika's name and only 25% should come from monthly remuneration/alimony.
3. Due to financial circumstances, it has been agreed that Mr. Gaurav Gupta will make a deposit of Rs.50,00,000/- on or before 1/12/2008 in the name of Radhika Gupta and additional Rs.25,00,000/- on or before 1/12/2009 and he will raise the balance funds to bring the interest on fixed deposits to Mrs. Radhika Gupta to a level of Rs.60,000/- per month, tax free on or before 1/12/2010.
4. It has been resolved that there will be 10% increase every year in Radhika Gupta's remuneration/alimony starting from 1/12/2009.
5. It has been agreed that this remuneration/alimony is for the life of Mrs. Radhika Gupta and it will be paid to her even on the event of her next marriage.
III. CHILDREN:
(1) The custody of both the daughters will be with Mrs. Radhika Gupta and Mr. Gaurav Gupta will have daily visiting rights and also get exclusive time with both the children.
(2) Maximum of two weekends a month will be given to Mr. Gaurav Gupta for exclusive time with his children in which the time for the grandparents i.e. Mr. and Mrs. K. G. Gupta is also included.
(3). Gaurav Gupta to have daily visiting right of an hour in then evening to visit the children which cannot be beyond 8.00 OClock in the evening.
(4) Mrs. Nandita DSouza has been appointed as a child psychologist and both the parents have to visit her at least once a month for the next three years;
(5) Every year, it is the responsibility of Mr. Gaurav Gupta to organize a family holiday anywhere in India or abroad for a period of seven days in which only Mr. Gaurav Gupta, Mrs. Radhika Gupta and the two children will be there and the expense of this holiday will be borne by Mr. Gaurav Gupta, exclusively;
(6) A yearly calendar of determining the weekend holidays and the other such time in which exclusive childrens custody is given to Mr. Gaurav Gupta will be determined in advance before 31st December for the following year;
(7) There will be a joint childrens expense account, in which education, extra curricular activities, and other expenses such as medical insurance, medical expenses of the children will be deposited and both the parents can operate the account and all the above expenditure will be borne by Mr. Gaurav Gupta;
(8) Rs.60,000/- a year will be given to Mrs. Radhika Gupta for shopping of clothes and other items for the children;
(9) Rs.50,000/- a year will be given to Mrs. Radhika Gupta for the entertainment and eating out expenses and other petty cash expenses for the children;
(10) Mr. Gaurav Gupta to take care of all insurance policies, investments or other securities for both the daughters. In the event of Mr. Gaurav Gupta re-marrying or event of insanity or further divorce, in employment, the rights and guardianship of all insurance policies, investments and securities of the children will get transferred to Mrs. Radhika Gupta who will be the sole custodian of all instruments;
(11) Mr. Gaurav Gupta shall furnish to Mrs. Radhika Gupta the Xerox copies of all above instruments;
34. As regards the mediation, it was agreed that Mr. Sanjeev Gupta/Mrs. Archana Gupta, Mr. Varner Velho/Mrs. Rachita Velho had agreed to be mediators for this settlement in good faith and in the event, Gaurav and Radhika back out from this settlement, then they will cease to be mediators and will not have any responsibilities for the same. It was lastly agreed that divorce proceedings will be filed jointly, provided the above mentioned terms are met in advance by Mr. Gaurav. The above terms of settlement were signed by all the above mediators as well as by Gaurav and Radhika.
35. In the case of âMoti Ram (Dead) Through Lrsâ (supra), relied upon by the learned Counsel for Gaurav, the Hon'ble Supreme Court had referred the matter to the Mediation Centre. The mediator had forwarded the report to the Court which revealed that mediation had failed. The reasons for failure of mediation were stated in that report. The Apex Court, in paragraph 2 of the judgment, observed thus:
â2. In this connection, we would like to state that mediation proceedings are totally confidential proceedings. This is unlike proceedings in Court which are conducted openly in the public gaze. If the mediation succeeds, then the mediator should send the agreement signed by both the parties to the Court without mentioning what transpired during the mediation proceedings. If the mediation is unsuccessful, then the mediator should only write one sentence in his report and send it to the Court stating that âmediation has been unsuccessfulâ. Beyond that, the mediator should not write anything which was discussed, proposed or done during the mediation proceedings. This is because in mediation, very often offers, counter offers and proposals are made by the parties but until and unless the parties reach to an agreement signed by them, it will not amount to any concluded contract. If the happenings in the mediation proceedings are disclosed, it will destroy the confidentiality of the mediation process.â
36. In the case of âMoti Ram (Dead) Through Lrsâ (supra), the mediation proceedings were initiated by order of the Court and the Court had appointed the mediator. Besides the above, the mediation had failed and no agreement was signed by the parties. In the present case, the mediation process was started by the parties themselves and the mediators were cousins of Gaurav. The mediation successfully ended in an agreement signed by Gaurav and Radhika as well as all the mediators. As already stated above, Gaurav is a highly educated responsible person and he cannot be expected to have signed the terms without reading and understanding them fully. The aforesaid Judgment of the Apex Court does not help Gaurav in any manner. The means, of Gaurav, for earning income, as mentioned in the application for interim maintenance, are not denied by him but the income that is sought to be projected as of Gaurav from the said means are denied by Gaurav. The said terms signed by Gaurav certainly establish the financial capability of Gaurav to pay interim maintenance to Radhika and children and the amount of legal expenses and in fact the said agreement shows that what was agreed was more than what has been granted by the Trial Court. If Gaurav did not have financial capacity as stated in the application for interim maintenance and if Gaurav, his wife Radhika and their children were not living in a life style as stated in detail in the said application, under Section 24 of the Act, Gaurav would never have agreed to such terms and signed them. The denials of Gaurav, therefore, to all the averments made by Radhika on the income of Gaurav are not wholly acceptable and reliable. It can be easily understood that in order to see that Radhika does not succeed to demand reasonable maintenance for herself and her children as per their standard of living, to which they were used to after marriage between Gaurav and Radhika, Gaurav moved into a single bedroom apartment, where he does not appear to be living on regular basis. The Child Welfare Committee, in its judgment dated 29/12/2011, has observed that Gaurav moved into a single bedroom apartment where he does not appear to be living on a regular basis. It can be understood that there is an attempt made by Gaurav to hide his real income by asserting that his yearly income is only Rs.13,25,525/-. It is sufficiently proved that Gaurav has financial capacity to pay maintenance to his wife Radhika and his minor daughters.
37. Expression âany proceedingsâ referred to in section 24 of the Act cannot be restricted only to the proceedings under the Act but should also cover the proceedings arising out of or in any manner linked with the main petition. Though in the previous order dated 09/04/2012, an amount of Rs.1,00,000/- per month was awarded to Radhika towards legal expenses and all future expenses towards future legal proceedings, however, the said amount has been restricted only to Rs.25,000/- per month, by the impugned order. Along with the affidavit-in-reply, Radhika has produced the bill issued by her Counsel for appearances and arguments in the present petition which itself is Rs.1,80,000/- Then there are other expenses of ` 51,200/- towards typing/printing, xeroxing, stationary, travelling, obtaining certified copies, etc. There are on record the details of previous expenses towards earlier Advocates. Considering the expenses towards fees of the Advocates; stationary required; clerical work; transport charges, other miscellaneous expenses, etc., the amount of Rs.25,000/- per month towards legal expenses, does not seem to be exorbitant.
38. However, merely because Gaurav has financial capacity to pay, that does not mean that Radhika is entitled to receive any amount as she claims. On 20/01/2014, Gaurav filed an additional affidavit alleging that a letter dated 09/01/2014 from Karnataka Bank which was addressed to Radhika was brought to his notice, in which there was a reference to a fixed deposit made by Radhika on 10/01/2009 for a period of five years, supposed to mature on 10/01/2014 and that the amount of the same is above 5.0 lakhs rupees. By way of affidavit-in-reply, Radhika denied the above and produced the copy of the FDR which demonstrated that the same was only for Rs.50,000/- and the maturity value as on 10th January 2014 is about Rs.86,000/-. According to the learned Counsel for Radhika, that shows desperate attempts made by Gaurav to somehow see that Radhika does not get her dues.
39. Be that as it may, it cannot however be believed that Radhika does not have any income. The financial capacity of Radhika does not appear to have been considered by the Trial Court. As already stated above, it is now known that a fixed deposit of Rs.50,000/- is there in the name of Radhika, which fact was not disclosed by her. Certificate dated 05/09/2012 of GKB Vision Ltd., showed that Radhika is shareholder of the said company holding 57,500 shares and was paid dividend of Rs.69,000/- per annum from 2006 to 2010; Rs.86,250/- p.a. from 2009 to 2010; and Rs.86,250/- for the period 2011 to 2011. However, during the period 2011 to 2012 no dividend was paid to Radhika. Then it is also seen that Radhika used to submit her medical bills for reimbursement to GKB Vision Ltd. and she has been reimbursed the said bills. Till 30th March 2008, Radhika held the position of a director in the company âPrime Lenses Pvt. Ltd.â owned by the family and was receiving a salary of Rs.2,40,000/- per annum. But the said employment was terminated on 30/3/2008. Admittedly since May 2009, Gaurav has been paying to Radhika, an amount of Rs.50,000/- in terms of the order passed under the Domestic Violence Act, for upkeep of Radhika and minor children. It may be true that Section 26(1) of the Domestic Violence Act provides that any relief available under sections 18 to 22, may also be sought, in any legal proceedings before a Civil Court, Family Court or a Criminal Court affecting the aggrieved person and the respondent, where such proceeding was initiated before or after the commencement of this Act. Subsection (2) of Section 26 provides that any relief referred to in Sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceedings before Civil or Criminal Court. The above does not mean that adjustment cannot be made, for the amount already paid or being paid. Under Section 24 of the Act, the wife or the husband, as the case may be, who has no independent income sufficient for her or his support and the necessary expenses of the proceeding, is entitled to interim maintenance. Thus, while considering the sufficiency of the amount required under the above provision, the interim maintenance under Section 24 of the Act should be granted keeping in view the earlier grants already made during the relevant period or grants which are being made. Gaurav has also been paying the rental charges of Rs.25,000/- of the three bed room flat occupied by Radhika and the children. In fact, Radhika was initially staying with Gaurav and family in âAnukampaâ, 60, Green Valley, Alto-Porvorim, Goa. Then the couple shifted to the three bed room flat at Prudential Palms, Alto-Porvorim, Goa, the rent of which was being paid by Gaurav from the beginning. Gaurav then left the said flat. Gaurav cannot claim adjustment of the amount of the said rental of the flat occupied by Radhika and Children against the maintenance amount. But, in my considered view, Gaurav should be permitted to adjust the monthly sum of Rs.50,000/- already paid to Radhika for the period after 09/06/2011 i.e. from the date of application and to continue to adjust the same from the amount to be paid.
40. In view of all that is discussed above, except for not allowing adjustment of Rs.50,000/- as above, it cannot be said that there has been a patent perversity in the impugned order of the Trial Court or that there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted, while determining the amount of interim maintenance and expenses of litigation. Interference, therefore, is called for with the impugned order, only with regard to allowing adjustment as above.
41. Writ petition, therefore, is partly allowed. The part of the impugned order, which excludes the amount of Rs.50,000/- granted under Domestic violence Act, is quashed and set aside. The petitioner shall pay to the respondent the amount of interim maintenance as directed by the Trial Court, vide the impugned order, by adjusting the amount of Rs.50,000/- per month granted to the respondent under the Domestic Violence Act, which is already paid as from 09/06/2011 and which would be paid, hereinafter. Arrears shall be paid within three months from today. Rule is made absolute accordingly, with no order as to costs.