Judgment Delivered on: 31.03.2011
RANI SETHI ….. Petitioner Through : Mr. G.K. Sharma, Adv.
versus SUNIL SETHI ….. Respondent Through : Mr. B.P. Singh, Adv.
CORAM: HON’BLE MR. JUSTICE G.S.SISTANI
Whether the Reporters of local papers may be allowed to seethe judgment? Yes
To be referred to Reporter or not? Yes
Whether the judgment should be reported in the Digest? Yes
G.S.SISTANI, J. (ORAL)
Present petition is directed against the order dated 24.2.2009 passed by learned Additional District Judge, Delhi, on an application filed by respondent (husband) under Section 24 of Hindu Marriage Act, seeking maintenance from the petitioner (wife). By the abovesaid order, trial court has directed the petitioner (wife) to pay maintenance to the respondent (husband) @ `20,000/-, per month, and `10,000/- as litigation expenses and also to provide Zen Car for the use of the respondent (husband).
2. Learned counsel for the petitioner submits that learned trial court has exceeded its jurisdiction and has erroneously come to a finding with regard to the income of the petitioner. While it is not in dispute that petitioner is carrying out the business of running paying guest hostels in the name of Pradise PG, it is submitted by counsel for the
petitioner that the trial court has failed to consider the expenses of running the business which includes providing the students with boarding, lodging and transportation facilities and the earnings from the business are barely sufficient to maintain herself and her
two children, whom she is solely supporting. It is further contended that the financial condition of the petitioner has been ignored by the trial court. Counsel next submits that in fact the financial condition of the petitioner would be evident from the fact that petitioner is residing in a rented accommodation and is paying rent @ `12,500/-, per month. Mr.Sharma submits that trial court has completely lost sight of the fact that petitioner has to maintain and provide for two unmarried children – one son, who is 26 years of age, and a daughter, who is 24 years of age. Counsel next submits that petitioner has to not only provide for their maintenance but also plan their marriages and ensure a secured future for the children. Besides petitioner has to look after herself. It is further submitted that petitioner is medically unfit and is suffering from Leucoderma and arthritis and she has to spend on doctors, medicines and other tests. Copies of medical prescriptions have been placed on record in support of her contention.
3. Learned counsel for the petitioner submits that even otherwise the respondent is an able bodied person and he is in a position to maintain himself. Counsel further submits that respondent is carrying on a business in the name and style of Sethi Contractor
and accordingly the respondent is not entitled to any maintenance. A copy of the visiting card of Sethi Contractor has been placed on record. Stress has also been laid by counsel for the petitioner on the conduct and character of the respondent. Various instances have been cited in the present petition by the petitioner to show that respondent has an immoral character. It is also contended that learned trial court has relied purely on the guess work to assess the income of the petitioner and, thus, the impugned order is liable to be set aside.
4. Learned counsel for the petitioner submits that petitioner has subsequently been able to lay her hands on documents to show that respondent is earning and is able to maintain himself, however, the documents were neither filed along with this petition nor the same were filed before the trial court at the relevant time. However, it is submitted by counsel for the petitioner that an application has already been moved before the trial court for modification of the impugned order and the petitioner will rely upon those documents before the trial court.
5. Learned counsel for the respondent submits that despite the fact that the business was set up by the respondent and the petitioner together initially, out of the funds received from selling ancestral property of the respondent, and the business is making a good profit, the trial court has been extremely conservative in granting only `20,000/-, per month, as maintenance, for the respondent. Counsel further submits that in the affidavit filed by the respondent on 20.1.2009 before the trial court, the respondent has enlisted the assets of the business, which are reproduced below:
(a) 300 room on rent fully equipped and furnished with double bed 18000×300.00
(b) Taa Bus 1.50 Seaters 54 lacs
(c) One Tata Winger (9+1) 8 lacs
(d) Three Maruti Vans 6 lacs
(e) One Maruti Zen 3 lacs
(f) One Accent Viva Car 4 lacs
(g) One Mess kitchen Modular with all apparatus, uttencils, equipments, etc. sufficient for 600 inmates
along with all other required faculties 8 lacs
(h) One Modern Zim with all equipments 2 lacs
(i) One General Store with stock 2 lacs
(j) One Cyber Café with four computers and other necessary equipments 1 ½ lacs (k) House-hold articles including laptop, Fridge, Air Conditioners (3), Two LCD TVs, etc. Three bed rooms
fully equipped with one drawing room and kitchen with jewellery articles common family ornaments, ancestral, etc. 20 lacs
6. It is submitted by counsel for the respondent that a perusal of the abovementioned assets of the business would show that petitioner is running a flourishing business. It is further submitted that the assets of the business, business investments and other personal assets owned by the petitioner would give some idea of the status of the petitioner. It is next submitted that petitioner had filed an additional affidavit before the trial court where she had herself admitted that she is running business in the name and style of Paradise Hostel for the purposes of which she has taken 81 flats in two societies on rent, for which she is paying `5,07,000/- as rent;`65,800/- as maintenance + electricity and other expenses towards hostel, bus payments, etc. Petitioner has also admitted in the additional affidavit that she is paying `25,000/-, per month, towards
house keeping; `48,000/-, per month, towards kitchen expenses; `50,000/- towards the salary of drivers, electrician, plumbers, etc; `2,50,000/-, per month, towards Hostel‟s Ration, Grocery Expenditure, for a strength of 386 students.
7. Learned counsel for the respondent submits that respondent was unceremoniously thrown out of his house and it is only by the order of the court that few articles were returned, which have been noticed by the trial court in para 12 of its order. Relevant portion of which reads as under:
“… an application in the Court for taking his clothes and chapels lying at the house of the non applicant and the non applicant has given only two pairs of pants and shirts, one kurta paijama, three bainyans, two underwears and one pair of chappals and two sweaters in the court on 21.1.2009 and other articles of the applicant mentioned in his application have not yet been given by the non-applicant/ wife.”
8. It is next submitted that the respondent tried setting up another business and starting life afresh. However, the business was unsuccessful and the partnership which was entered into for the purpose of business was dissolved on 1.12.2009. The respondent has placed a copy of the dissolution of partnership deed dated 1.12.2009 in support of his contention. Counsel further submits that there is no infirmity in the order of the trial court, which would CM(M)NO.169/2009 Page 6 of 14 call for interference in the proceedings under Article 227 of the Constitution of India.
9. I have heard counsel for the parties, who have also drawn the attention of the Court to various documents placed on record as also the affidavits filed by both the parties before the trial court. In this case, the undisputed facts, which emerge, are that marriage between parties was solemnized on 6.12.1982. A son, who is at present 26 years of age, and a daughter, who is at present 24 years, were born out of their wedlock. Admittedly, the parties started residing separately since September, 2006, and thereafter with the intervention of friends and relations, the petitioner and respondent stayed together for a brief period in the matrimonial home, however, the parties again separated on 6.9.2008. Allegation of the respondent is that he was thrown out of the matrimonial home, which prima facie appears to be correct as few of his articles were handed over to him on 20.1.2009 in the Court, as observed by the trial court.
10. It is settled position of law that the law makes provision to strike a balance between the standard of living, status and luxuries that were enjoyed by a spouse in the matrimonial home and after separation. It has been held by the Apex Court that the needs of the parties, capacity to pay etc. must be taken into account while deciding quantum of maintenance.
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