Sunil Kumar Sharma vs.kumari Manu Sharma & Anr - Court Judgment

SooperKanoon Citationsooperkanoon.com/1219617
CourtDelhi High Court
Decided OnNov-28-2018
AppellantSunil Kumar Sharma
RespondentKumari Manu Sharma & Anr
Excerpt:
$~23 * % in the high court of delhi at new delhi date of judgment:28. h november, 2018 + mat.app.(f.c.)304/2018, cm no.49371/2018 (stay) and 49372/2018 (modification) sunil kumar sharma through: md. azam ansari, adv. ..... appellant versus kumari manu sharma & anr through: none ........ respondents coram: hon'ble mr. justice g.s. sistani hon'ble ms. justice jyoti singh g.s. sistani, j.(oral) mat.app.(f.c.) 304/2018 & cm no.49373/2018 (delay of 1107 days) 1. this is an application filed by appellant/husband under section 5 of the limitation act read with section 151 of cpc seeking condonation of 1107 days delay in filing the present appeal. the reasons for the delay find mentioned in para 2.17 of the appeal which we reproduce below: “2.17 on 30.05.2016, impugned order although, passed by ld. family court and appealable before division bench of this hon‟ble court in terms of family courts act, 1984 was erroneously challenged by the appellant‟s previous counsel mr. prakash chandra, by way of a criminal revision petition before this hon‟ble court which was not maintainable before ld. single judge, on the face of the provisions of section 19 of family courts act 1984. accordingly, the same was dismissed as withdrawn with liberty to file appeal in terms of family courts act 1984 vide order dated 31.10.2018. certified copy of which is annexed herewith and marked as annexure a-12. the mat.app(f.c.)304/2018 page 1 of 8 order passed in crl.rev.p. 408/2016 and crl.ma92532016 on 31.10.2018 reads as under: order3110.2018 “the counsel for the petitioner, on instructions, submitted that he may be permitted to withdraw the present petition seeking liberty to file an appeal in terms of family courts act 1984 inasmuch as the order impugned was passed by the family court. the petition and the pending applications are dismissed as withdrawn with liberty as prayed for, granted.” 2. learned counsel for the appellant/husband submits that the appeal could not be filed within the period of limitation as after the impugned order passed on 14.10.2015, the appellant/husband had filed a revision petition which was dismissed as withdrawn on 31.10.2018 and thereafter, the present appeal was filed within 30 days.3. the hon’ble supreme court in the case of ram nath sao v. gobardhan sao reported at (2002) 3 scc195 while dealing with the expression “sufficient cause” within the meaning of section 5 of the limitation act held that the explanation furnished would constitute “sufficient cause” or not will be dependent upon facts of each case. there cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. it was further held that „while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner‟. mat.app(f.c.)304/2018 page 2 of 8 4. in the case of brijesh kumar & ors. vs. state of haryana & ors., reported at air2014sc1612 the apex court has held as under:-"“11. the courts should not adopt an injustice-oriented approach in rejecting the application for condonation of delay. however the court while allowing such application has to draw a distinction between delay and inordinate delay for want of bona fides of an inaction or negligence would deprive a party of the protection of section 5 of the limitation act, 1963. sufficient cause is a condition precedent for exercise of discretion by the court for condoning the delay. this court has time and again held that when mandatory provision is not complied with and that delay is not properly, satisfactorily and convincingly explained, the court cannot condone the delay on sympathetic grounds alone.” 5. the present application seeking condonation of delay of 1107 days is to be decided on the touch stone of the law laid down by the apex court. the only ground urged seeking condonation of 1107 days delay in filing the appeal is that the appellant had filed a review petition which was dismissed as withdrawn on 31.10.2018. we find it hard to believe that the review petition was pending for more than 2 years. we find that the application is completely vague and the cause shown in the application is not sufficient to condone the delay. the application is accordingly dismissed.6. to satisfy our conscience, we have also examined the impugned order dated 14.10.2015 passed by the learned family court by which maintenance has been fixed rs.10,000/- each for two daughters of the appellant/husband who were studying in class 11 and 7, respectively at the time when impugned order was passed. mat.app(f.c.)304/2018 page 3 of 8 7. in this case, the marriage between appellant/husband and the mother of the respondents was solemnized on 22.05.1997 at delhi as per hindu rites and ceremonies. two daughters were born out of their wedlock on 12.11.1998 and 05.12.2003.8. learned counsel for the appellant/husband submits that the learned family court has completely lost track of the fact that the appellant/husband is a retired sergeant from the indian air force and was drawing a pension of rs.11,698/- per month (presently, rs.24,050/-, as disclosed by the learned counsel for the appellant/husband). he submits that it is impossible for the appellant/husband to pay rs.20,000/- to his minor daughters out of the pension so received by him. he further submits that in the absence of any material on record, the family court has erred in reaching the conclusion that the appellant/husband is gainfully employed and thus, he is in a position to pay rs.20,000/- per month for both the children.9. learned counsel for the appellant/husband further submits that respondent’s mother is equally responsible for the maintenance of the two daughters, who is also gainfully employed and infact, she is earning more than the appellant/husband. besides, having the benefit of rental income.10. we have carefully examined the order passed by the learned family court. it is not in dispute that the appellant/husband is a retired sergeant from the indian air force and is drawing a pension of rs.24,050/- per month. the main thrust of arguments of the learned counsel for the appellant/husband is that a person who is drawing pension of rs.24,050/- cannot be expected to pay maintenance of rs.20,000/- per month as it would leave him with no amount to sustain himself. he has also urged that there mat.app(f.c.)304/2018 page 4 of 8 was no material before the family court to reach the conclusion that the appellant/husband was earning anything in addition to the pension which at that stage was rs.11,698/-. we deem it appropriate to reproduce the relevant paragraphs of the order which read as under: “5.4 the respondent vide his statement on oath made on 23.09.2015 stated that he retired from post of seargent in indian air force in 1992. presently, he is drawing a pension of rs. 11,698/- pm. in partnership with lt. col. v.k. sharma, he had started a security firm under the name of vigil services. initially, there was no income. however, when the company was at its peak, his monthly income during that time was rs. 35,000 to rs. 50,000/- pm. this firm was dissolved in september 2009. during may-june 2009, he worked as gm (operations) with knight watch security services and was drawing a salary of rs. 28,000/- pm. but, since september 2009 he is out of job and have not been able to find any job. 5.4.1 the respondent has not given any details of the efforts made by him for securing an employment. taking into account, the respondent‟s professional background and his qualifications i.e. diploma in electrical engineering, it is difficult to believe that since september, 2009, the respondent is sitting idle. the respondent is hale and hearty and is capable of taking up work. it may be mentioned that as per respondent‟s income 5.5 affidavit, he is incurring following expenses:-"rs. 4,500/- (earlier rs. 4,800/- rent + electricity) = rent. rs. 20,000/- per annum = fuel, repair and maintenance of the vehicle. rs. 4,000/- per annum = car insurance. rs. 1,500/- per month = self medication. rs. 1,000/- = mother‟s medication. rs. 10,000/- per annum approx = mahindra holidays membership. rs. 3,000/- = food. mat.app(f.c.)304/2018 page 5 of 8 rs. 1,000/- = clothing. 5.5.1 respondent‟s total monthly expenses come to rs. 13,832/- approximately. same are more than his monthly pension of rs. 11,698/-. further, it is unfathomable that a person who is not working and is living on pension would pay rs. 1,000/- per month approximately towards club membership. 5.6 it may be mentioned that vide his subsequent affidavit dated 15.09.2015, the respondent stated that he has not paid subscription for club membership for last two years. meaning thereby, that till 2013, the respondent was paying the subscription amount. the respondent has not explained as to how was he meeting these expenses when he as per him, is out of job since september, 2009. admittedly, the respondent is maintaining a wagon r car. it is also noteworthy that respondent‟s average monthly withdrawal from bank is approximately rs. 11,000/- to rs. 12,000/-. these facts clearly show that the respondent is certainly earning more than his pension amount of rs. 11,698/- per month. 5.7... petitioner has placed o record, a copy of a resume of the respondent, giving details of his qualifications and employment. as per this resume, the respondent is a b.a. (punjab university) and d.e.e (diploma in electrical engineering – iaf), which is not in dispute. the resume mentions that the respondent also has the experience of 15 years in the indian air force, worked on mig fighter aircrafts and guided weapons system i.e. surface to air missile launchers. he also has 6 years experience in tourism industry/ rao travels & diamond tours & travel services and 10 years experience in private security industry. respondent himself has stated in his statement on oath dated 23.09.2015 that he was running a tour and travel agency by the name of diamond tours and travel services, palam colony, raj nagar, new delhi.” 11. it has been repeatedly held that in the family matters, there is an endeavour on the part of the spouses to conceal their true and correct income, leaving the family court with little option but to rely upon some guess work. mat.app(f.c.)304/2018 page 6 of 8 12. the hon’ble supreme court in the case of jasbir kaur sehgal (smt.) v. district judge, dehradun and ors., reported at (1997) 7 scc7has recognized the fact that spouses in the proceedings for maintenance do not truthfully disclose their true income and therefore some guess work on the part of the court is permissible. further the supreme court has also observed that “considering the diverse claims made by the parties one inflating the income and the other suppressing an element of conjecture and guess work does enter for arriving at the income of the husband. it cannot be done by any mathematical precision”.13. in the case of chaturbhuj v. sita bai reported at (2008) 2 scc316 the hon’ble supreme court discussed the object of the maintenance proceedings and also duty of a man to maintain his wife, children and parents when they are unable to maintain themselves. the apex court further interpreted the phrase “unable to maintain herself”. the relevant paras 6 to 8 read as under: “6. the object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. the phrase “unable to maintain herself” in the instant case would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow….” (emphasis supplied) 14. in our view, the present case is no different for the reason that post retirement, the appellant/husband was gainfully employed and infact, he entered into a partnership and started a security firm under the name of mat.app(f.c.)304/2018 page 7 of 8 „vigil services‟. after the firm was dissolved, he worked as a general manager (operations) with „knight watch security services‟ and was drawing a salary of rs.28,000/- per month, though as per the appellant/husband, this was only for two months in 2009. we find it hard to believe that a capable person like the appellant/husband would remain unemployed and would have no other source of income besides his pension. the affidavit filed by him also shows that he was paying rs.10,000/- per annum for mahindra holidays membership. however, in the subsequent affidavit filed on 15.09.2015, it was stated that he had not paid such membership fee for the last two years i.e. till 2013. in this backdrop, we are of the view that a person living on a simple pension does not gain membership of such holiday homes. we find no infirmity or illegality in the order of the family court which requires any interference.15. the appeal stands dismissed along with all the pending applications. november28 2018 //pb g.s.sistani, j.jyoti singh, j.mat.app(f.c.)304/2018 page 8 of 8
Judgment:

$~23 * % IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Judgment:

28. h November, 2018 + MAT.APP.(F.C.)304/2018, CM No.49371/2018 (Stay) and 49372/2018 (Modification) SUNIL KUMAR SHARMA Through: Md. Azam Ansari, Adv. ..... Appellant versus KUMARI MANU SHARMA & ANR Through: None ........ RESPONDENTS

CORAM: HON'BLE MR. JUSTICE G.S. SISTANI HON'BLE MS. JUSTICE JYOTI SINGH G.S. SISTANI, J.

(ORAL) MAT.APP.(F.C.) 304/2018 & CM No.49373/2018 (Delay of 1107 days) 1. This is an application filed by appellant/husband under Section 5 of the Limitation Act read with Section 151 of CPC seeking condonation of 1107 days delay in filing the present appeal. The reasons for the delay find mentioned in para 2.17 of the appeal which we reproduce below: “2.17 On 30.05.2016, impugned order although, passed by Ld. Family Court and appealable before Division Bench of this Hon‟ble Court in terms of Family Courts Act, 1984 was erroneously challenged by the appellant‟s previous counsel Mr. Prakash Chandra, by way of a criminal revision petition before this Hon‟ble Court which was not maintainable before Ld. Single Judge, on the face of the provisions of Section 19 of Family Courts Act 1984. Accordingly, the same was dismissed as withdrawn with liberty to file appeal in terms of Family Courts Act 1984 vide order dated 31.10.2018. Certified copy of which is annexed herewith and marked as Annexure A-12. The MAT.APP(F.C.)304/2018 Page 1 of 8 order passed in Crl.Rev.P. 408/2016 and Crl.MA92532016 on 31.10.2018 reads as under: ORDER3110.2018 “The counsel for the petitioner, on instructions, submitted that he may be permitted to withdraw the present petition seeking liberty to file an appeal in terms of Family Courts Act 1984 inasmuch as the order impugned was passed by the Family Court. The petition and the pending applications are dismissed as withdrawn with liberty as prayed for, granted.” 2. Learned counsel for the appellant/husband submits that the appeal could not be filed within the period of limitation as after the impugned order passed on 14.10.2015, the appellant/husband had filed a revision petition which was dismissed as withdrawn on 31.10.2018 and thereafter, the present appeal was filed within 30 days.

3. The Hon’ble Supreme Court in the case of Ram Nath Sao v. Gobardhan Sao reported at (2002) 3 SCC195 while dealing with the expression “sufficient cause” within the meaning of Section 5 of the Limitation Act held that the explanation furnished would constitute “sufficient cause” or not will be dependent upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. It was further held that „While considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner‟. MAT.APP(F.C.)304/2018 Page 2 of 8 4. In the case of Brijesh Kumar & Ors. vs. State of Haryana & Ors., reported at AIR2014SC1612 the Apex Court has held as under:-

"“11. The courts should not adopt an injustice-oriented approach in rejecting the application for condonation of delay. However the court while allowing such application has to draw a distinction between delay and inordinate delay for want of bona fides of an inaction or negligence would deprive a party of the protection of Section 5 of the Limitation Act, 1963. Sufficient cause is a condition precedent for exercise of discretion by the Court for condoning the delay. This Court has time and again held that when mandatory provision is not complied with and that delay is not properly, satisfactorily and convincingly explained, the court cannot condone the delay on sympathetic grounds alone.” 5. The present application seeking condonation of delay of 1107 days is to be decided on the touch stone of the law laid down by the Apex Court. The only ground urged seeking condonation of 1107 days delay in filing the appeal is that the appellant had filed a review petition which was dismissed as withdrawn on 31.10.2018. We find it hard to believe that the review petition was pending for more than 2 years. We find that the application is completely vague and the cause shown in the application is not sufficient to condone the delay. The application is accordingly dismissed.

6. To satisfy our conscience, we have also examined the impugned order dated 14.10.2015 passed by the learned Family Court by which maintenance has been fixed Rs.10,000/- each for two daughters of the appellant/husband who were studying in class 11 and 7, respectively at the time when impugned order was passed. MAT.APP(F.C.)304/2018 Page 3 of 8 7. In this case, the marriage between appellant/husband and the mother of the respondents was solemnized on 22.05.1997 at Delhi as per Hindu rites and ceremonies. Two daughters were born out of their wedlock on 12.11.1998 and 05.12.2003.

8. Learned counsel for the appellant/husband submits that the learned Family Court has completely lost track of the fact that the appellant/husband is a retired Sergeant from the Indian Air Force and was drawing a pension of Rs.11,698/- per month (presently, Rs.24,050/-, as disclosed by the learned counsel for the appellant/husband). He submits that it is impossible for the appellant/husband to pay Rs.20,000/- to his minor daughters out of the pension so received by him. He further submits that in the absence of any material on record, the Family Court has erred in reaching the conclusion that the appellant/husband is gainfully employed and thus, he is in a position to pay Rs.20,000/- per month for both the children.

9. Learned counsel for the appellant/husband further submits that respondent’s mother is equally responsible for the maintenance of the two daughters, who is also gainfully employed and infact, she is earning more than the appellant/husband. Besides, having the benefit of rental income.

10. We have carefully examined the order passed by the learned Family Court. It is not in dispute that the appellant/husband is a retired Sergeant from the Indian Air Force and is drawing a pension of Rs.24,050/- per month. The main thrust of arguments of the learned counsel for the appellant/husband is that a person who is drawing pension of Rs.24,050/- cannot be expected to pay maintenance of Rs.20,000/- per month as it would leave him with no amount to sustain himself. He has also urged that there MAT.APP(F.C.)304/2018 Page 4 of 8 was no material before the Family Court to reach the conclusion that the appellant/husband was earning anything in addition to the pension which at that stage was Rs.11,698/-. We deem it appropriate to reproduce the relevant paragraphs of the order which read as under: “5.4 The respondent vide his statement on oath made on 23.09.2015 stated that he retired from post of Seargent in Indian Air Force in 1992. Presently, he is drawing a pension of Rs. 11,698/- pm. In partnership with Lt. Col. V.K. Sharma, he had started a security firm under the name of Vigil services. Initially, there was no income. However, when the company was at its peak, his monthly income during that time was Rs. 35,000 to Rs. 50,000/- pm. This firm was dissolved in September 2009. During May-June 2009, he worked as GM (Operations) with Knight Watch Security Services and was drawing a salary of Rs. 28,000/- pm. But, since September 2009 he is out of job and have not been able to find any job. 5.4.1 The Respondent has not given any details of the efforts made by him for securing an employment. Taking into account, the respondent‟s professional background and his qualifications i.e. Diploma in Electrical Engineering, it is difficult to believe that since September, 2009, the respondent is sitting idle. The respondent is hale and hearty and is capable of taking up work. It may be mentioned that as per respondent‟s income 5.5 affidavit, he is incurring following expenses:-

"Rs. 4,500/- (Earlier Rs. 4,800/- Rent + Electricity) = Rent. Rs. 20,000/- per annum = fuel, repair and maintenance of the vehicle. Rs. 4,000/- per annum = car insurance. Rs. 1,500/- per month = self medication. Rs. 1,000/- = Mother‟s medication. Rs. 10,000/- per annum approx = Mahindra Holidays Membership. Rs. 3,000/- = food. MAT.APP(F.C.)304/2018 Page 5 of 8 Rs. 1,000/- = clothing. 5.5.1 Respondent‟s total monthly expenses come to Rs. 13,832/- approximately. Same are more than his monthly pension of Rs. 11,698/-. Further, it is unfathomable that a person who is not working and is living on pension would pay Rs. 1,000/- per month approximately towards club membership. 5.6 It may be mentioned that vide his subsequent affidavit dated 15.09.2015, the respondent stated that he has not paid subscription for club membership for last two years. Meaning thereby, that till 2013, the respondent was paying the subscription amount. The respondent has not explained as to how was he meeting these expenses when he as per him, is out of job since September, 2009. Admittedly, the respondent is maintaining a Wagon R car. It is also noteworthy that respondent‟s average monthly withdrawal from bank is approximately Rs. 11,000/- to Rs. 12,000/-. These facts clearly show that the respondent is certainly earning more than his pension amount of Rs. 11,698/- per month. 5.7... Petitioner

has placed o record, a copy of a resume of the respondent, giving details of his qualifications and employment. As per this resume, the respondent is a B.A. (Punjab University) and D.E.E (Diploma in Electrical Engineering – IAF), which is not in dispute. The resume mentions that the respondent also has the experience of 15 years in the Indian Air Force, worked on MIG Fighter Aircrafts and Guided Weapons System i.e. Surface to Air Missile Launchers. He also has 6 years experience in Tourism Industry/ Rao Travels & Diamond Tours & Travel Services and 10 years experience in Private Security Industry. Respondent himself has stated in his statement on oath dated 23.09.2015 that he was running a tour and travel agency by the name of Diamond Tours and Travel Services, Palam Colony, Raj Nagar, New Delhi.” 11. It has been repeatedly held that in the family matters, there is an endeavour on the part of the spouses to conceal their true and correct income, leaving the family court with little option but to rely upon some guess work. MAT.APP(F.C.)304/2018 Page 6 of 8 12. The Hon’ble Supreme Court in the case of Jasbir Kaur Sehgal (Smt.) v. District Judge, Dehradun and Ors., reported at (1997) 7 SCC7has recognized the fact that spouses in the proceedings for maintenance do not truthfully disclose their true income and therefore some guess work on the part of the Court is permissible. Further the Supreme Court has also observed that “considering the diverse claims made by the parties one inflating the income and the other suppressing an element of conjecture and guess work does enter for arriving at the income of the husband. It cannot be done by any mathematical precision”.

13. In the case of Chaturbhuj v. Sita Bai reported at (2008) 2 SCC316 the Hon’ble Supreme Court discussed the object of the maintenance proceedings and also duty of a man to maintain his wife, children and parents when they are unable to maintain themselves. The Apex Court further interpreted the phrase “unable to maintain herself”. The relevant paras 6 to 8 read as under: “6. The object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. The phrase “unable to maintain herself” in the instant case would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow….” (Emphasis Supplied) 14. In our view, the present case is no different for the reason that post retirement, the appellant/husband was gainfully employed and infact, he entered into a partnership and started a Security Firm under the name of MAT.APP(F.C.)304/2018 Page 7 of 8 „Vigil Services‟. After the firm was dissolved, he worked as a General Manager (Operations) with „Knight Watch Security Services‟ and was drawing a salary of Rs.28,000/- per month, though as per the appellant/husband, this was only for two months in 2009. We find it hard to believe that a capable person like the appellant/husband would remain unemployed and would have no other source of income besides his pension. The affidavit filed by him also shows that he was paying Rs.10,000/- per annum for Mahindra Holidays membership. However, in the subsequent affidavit filed on 15.09.2015, it was stated that he had not paid such membership fee for the last two years i.e. till 2013. In this backdrop, we are of the view that a person living on a simple pension does not gain membership of such holiday homes. We find no infirmity or illegality in the order of the Family Court which requires any interference.

15. The appeal stands dismissed along with all the pending applications. NOVEMBER28 2018 //PB G.S.SISTANI, J.

JYOTI SINGH, J.

MAT.APP(F.C.)304/2018 Page 8 of 8