WIFE TO PAY 20,000 MAINTENANCE TO HUSBAND UNDER SECTION 24 HINDU MARRIAGE ACT- DELHI HIGH COURT

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WIFE TO PAY 20,000 MAINTENANCE TO HUSBAND UNDER SECTION 24 HINDU MARRIAGE ACT- DELHI HIGH COURT
* IN THE HIGH COURT OF DELHI AT NEW DELHI

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.

11. In the case of Jasbir Kaur Sehgal (Smt.) v. District Judge, Dehradun & Others, reported at (1997) 7 Supreme Court Cases 7, it has been held as under:
“8. The wife has no fixed abode of residence. She says she is living in a Gurudwara with her eldest daughter for safety. On the other hand the 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 courts. 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 circumstance of each case. Some scope for liverage can, however, be always there. Court has to consider the status of the parties, their respective needs, 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 payments or 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 her 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.”

12. A Single Judge of this Court in the case of Bharat Hegde v. Saroj Hegde, reported at 140 (2007) DLT 16, had culled out following 11 factors, which can be taken into consideration for deciding the application under Section 24 of Hindu Marriage Act, relevant portion of which reads as under:
8. Unfortunately, in India, parties do not truthfully reveal their income. For self employed persons or persons employed in the unorganized sector, truthful income never surfaces. Tax avoidance is the norm. Tax compliance is the exception in this country. Therefore, in determining the interim maintenance, there cannot be mathematical exactitude. The court has to take a general view. From the various judicial precedents, the under noted 11 factors can be culled out, which are to be taken into consideration while deciding an application under Section 24 of the Hindu Marriage Act. The same are:
(1) Status of the parties.
(2) Reasonable wants of the claimant.
(3) The independent income and property of the claimant.
(4) The number of persons, the non applicant has to maintain.
(5) The amount should aid the applicant to live in a similar life style as he/she enjoyed in the matrimonial home.
(6) Non-applicant‟s liabilities, if any.
(7) Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.
(8) Payment capacity of the non-applicant.
(9) Some guess work is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed.
(10) The non-applicant to defray the cost of litigation.
(11) The amount awarded under Section 125, Cr.P.C. is adjustable against the amount awarded under Section 24 of the Act.
13. The Supreme Court of India in the case of Jasbir Kaur (Smt.) (supra), has also 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”.

14. Further in a recent decision the Apex Court in Neeta Rakesh Jain v. Rakesh Jeetmal Jain reported at AIR 2010 SC 3540, has laid guidelines which the courts may keep in mind at the time of fixing the quantum of maintenance.
“In other words, in the matter of making an order for interim maintenance, the discretion of the court must be guided by the criterion provided in the Section, namely, the means of the parties and also after taking into account incidental and other relevant factors like social status; the background from which both the parties come from and the economical dependence of the petitioner. Since an order for interim maintenance by its very nature is temporary, a detailed and elaborate exercise by the court may not be necessary, but, at the same time, the court has got to take all the relevant factors into account and arrive at a proper amount having regard to the factors which are mentioned in the statute”.

15. While, in this case, petitioner has placed copies of income tax returns for the assessment years 2007-2008 on record, a copy of balance sheet as on 31.3.2007 as also a copy of Profit and Loss Account for the year ended as on 31.3.2007, have also been placed on record. The Profit and Loss Account of the guest house of the petitioner reads as under: “PARADISE PG HOUSE PROP. MRS. RANI SETHI B-75, DUGGAL COLONYKHANPUR, NEW DELHI – 110062 PROFIT & LOSS ACCOUNT FOR THE YEAR ENDED ON 31.03.2007 PARTICULARS AMOUNT PARICULARS AMOUNT
To Establishment 695900.00 By Receipts 8380178.00
To Rent for Flats 3191660.00
” Mess Expenses 1521958.00
” Electricity & Water 295800.00
” Bank Charges 39870.63
” Staff Welfare 51270.00
” Transportation 478756.00
”Telephone Expenses 229234.00
” Vehicle Running & Maintenance 252859.93
” Hire Charges 121000.00
” Bedsheets & Lined 152540.00
” Medicines & Doctor‟s Fee 24128.00
” Printing & Stationery 42190.00
” Travelling & Conveyance 44262.00
” Insurance 15078.00
” Misc. Expenses 37383.00
” Security Expenses 164500.00
” Repair & Maintenance 286856.00
” Interest on Car Loan Amount
Written Off
24571.72
” Amount written Off
” Audit Fee 23697.00
” Depreciation 16200.00
” Net Profit transferred to Capital 191222.07
8380178.00 8380178.00

16. A perusal of the Profit and Loss Account shows that this business is
incurring a profit of `83,80178/- for the year ending on 31.3.2007.

17. The affidavits filed by both the petitioner and the respondent
before the trial court also unfold the details of the business, which
was initially being carried out by both the petitioner and the
respondent and subsequently admittedly by the wife along.
Relevant portion of the affidavit of the respondent reads as under:
“Affidavit of Sunil Sethi s/o late J.N. Sethi R/o A-43, Street No.10, Madhu
Vihar, I.P. Extension, Delhi-110092 (however presently without any
accommodation).
I the above-named deponent do hereby solemnly affirm on oath and state
as under:-
1. I say that being petitioner in the above mentioned case, I am
entitled to swear the present affidavit.
2. I say that the respondent is proprietor of M/s Paradise P.G. House
Informative Society, Sector-VI, Greater Noida, (U.P.).
3. That the said firm established by me and started with the capital
investment of Rs.8,00,000/- in the year of 2003 which I had got
from my share in my ancestral/parental property.
4. I say that the total asset of the said firm owned by the respondent
is about Rs.1,00,000/- approximately. This assessment is dated
05.09.08 when I forced to leave the business.
5. I say that asset of the respondent’s firm as on 05.09.08 were as
under:-
S. Particulars Approx.
CM(M)NO.169/2009 Page 11 of 14
No. value
(in Rs.)
1. 300 room on rent fully equipped and
furnished with double bed
18000×300.00
54 lacs
2. Tata Bus 1.50 Seaters
17 lacs
3. One Tata Winger (9+1 seater)
8 lacs
4. Three Maruti Vans
6 Lacs
5. One Maruti Zen
3 Lacs
6. One Accent Viva Car
4 lacs
7. One Mess Kitchen Modular with all apparatus, utensil, equipments etc.sufficient for 600 inmates along with all other required facilities 8 lacs
8. One Modern Zim with all equipments2 lacs
9. On General Store with stock 2 lacs
10. One Cyber Cafe with four computers
and other necessary equipments
1 ½ lacs
11. House-hold articles including Laptop,
Fridge, Air Conditions (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. I say that on 05.05.08, the liability over the firm namely M/s Paradise
was namely Rs.15,00,000/- approx.”

18. The petitioner herein also filed her affidavit before the trial court.
Affidavit of petitioner reads as under:
“I, Rani Sethi w/o Mr. Sunil Sethi r/o Rajdhani Nikunj, Plot no.94, I.P.
Extension, Patparganj, Delhi do hereby solemnly affirm on and declare as
under:
A. ………
B. That following are the details of the monthly expenditure incurred by
me in my business of running Paradise Hostel.
i. That I have hired on rent 50 and 31 flats respectively in two
societies namely informatics and Khushboo whose details
are as follows:
Rent of Flats Maintenance Electricity Bills
Informatics Rs.2,59,000/- Rs.34,800/- +Electivity Bills
Khusboo Rs.2,48,000/- Rs.31,000/- +Electivity Bills
CM(M)NO.169/2009 Page 12 of 14
Total Rent Rs.5,07,000/- Rs.65,800/- +Electivity
Bills
C. That the expenditure incurred and the monthly installments due for
the following are as under:
Hotel Bus EMI-22,216/- PER per month + 9 Lakh
invested in Bus down payment.
Winger’s EMI-10,450/- per month + 2,60,000/-
down payment
Viva’s EMI-10209/- per month
Zen’s EMI-10,540/- per month
Van’s EMI-17,365/- per month
Total EMI-71,365/- per month
D. Staff Salary – Home Keeping 25,000/- per month
Kitchen 48,000/- per month
Drivers and electrician
Total Salary of Staff 1,23,000/- per month
Hostel’s Ration + Grocery Exp.+ Snacks item etc. 2,50,000/- per month
for 386 strength of students
Maintenance Exp. 30,000/- per month
Diesel for Bus 25,000/- per month
Diesel for Generator- Informatics 38,800/- per month
Khushboo 19,400/- per month
House rent 12,500/- per month
House Maintenance 15,000/- per month+Electricity bill
Transport charge of hostel 27,000/- per month
Three buses on hire
E. That it is also submitted that session starts in August of every month.”
19. Taking into consideration the documents, which have been filed on
record of this court and the affidavit of the petitioner, the balance
sheet, the Profit and Loss Account of the guest house and the
income and expenditure of the guest house, it is clear that the
CM(M)NO.169/2009 Page 13 of 14
petitioner has a substantial income from the business, which was at
one time started jointly by both the petitioner and the respondent.
The purpose of section 24 of Hindu Marriage Act is to provide
support to a spouse who has no independent source of income and
is incapable of maintaining himself/herself. It is trite law that the
term „support‟ is not to be construed in a narrow manner so as to
mean bare subsistence. It means that the other spouse, who has no
independent source of income, is provided with such maintenance
so as to live in a similar status as was enjoyed by them in their
matrimonial home. It is the purpose of section 24 that the wife or
the husband who has no sufficient source of income for her or his
support or for the expenses of the proceedings must be provided
with such reasonable sum that strikes equity between the spouses.
20. Taking into consideration the facts of this case and the settled
position of law, I am of the view that learned trial court has
correctly considered the relevant factors and has also rightly relied
upon the judgments of this court as also the Apex Court. I find no
infirmity in the order dated 24.2.2009, which requires interference
by this court in the proceedings under Article 227 of the
Constitution of India. Accordingly, present petition is without any
merit and the same is dismissed.

21. Interim order dated 4.3.2009 stands vacated. All arrears shall be
cleared by the petitioner within a period of three months from today, which shall be paid by the petitioner to the respondent in equal installments and the first installment shall be paid by the petitioner within 15 days from today.
CM NO.3129/2009 (STAY).
22. Application stands dismissed in view of the orders passed in the petition.
G.S. SISTANI, J.
March 31, 2011
‘msr‟

It’s time… Parliament should make law to protect husbands from harassment : SC.

Reporting by Amit Kashyap.

It’s time… Parliament should make law to protect husbands from harassment : SC.
————————————————————–
Warned that Country is on the verge of ” War between two sex”.
————————————————————–
WRIT PETITION (CIVIL) NO. 73 OF 2015

Social Action Forum for Manav Adhikar …Petitioner(s)

VERSUS

Union of India 
Ministry of Law and Justice and others …Respondent(s)

WITH
CRIMINAL APPEAL NO. 1265 OF 2017
WRIT PETITION (CRIMINAL) NO. 156 of 2017

Order dated : 14.9.2018.
————————————————————–

http://medlifeinternational.go2cloud.org/aff_c?offer_id=305&aff_id=11234

The Supreme Court said that if Parliament had enacted Section 498A IPC in 1983 to protect women from cruelty in matrimonial homes, it was now obliged to frame protective measures to curb harassment of husbands and their relatives from misuse and prevent a “war between two sexes”.

A bench of CJI Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud said the perception of persecution under Section 498A because of “super sensitivity” and overzealousness by police to arrest husbands could bring about social disaster with the “potential to vertically divide society”.

The SC said it was obligatory on the part of the legislature to enact protective measures against misuse of Section 498A and for courts to carefully scrutinise genuineness of complaints while establishing from evidence the requirement of keeping those arrested in custody rather than enlarging them on bail.

Writing the judgment for the bench, CJI Misra said the SC could not lose sight of growing abuse of the provision. “When implementation of the law (arrest) is abused by law enforcing agency, the legislature introduces a protective provision as regards arrest. Needless to say, the courts have ample power to grant anticipatory bail, and even to quash criminal proceedings totally to stabilise lawful balance because no court of law remotely conceives a war between two sexes,” the bench said.

Although…..

Judgment removed a few safeguards against arrest of husbands and their relatives introduced by a two-judge SC bench last year in its decision in the Rajesh Sharma case.

And said……

While removing the safeguard, which was hailed by ‘harassed husbands’, the bench showed that it was alive to concerns over immediate arrest after lodging of an FIR under Section 498A. Parliament had introduced Section 498A in IPC in 1983 to deal with increasing number of dowry deaths while categorising the offence as cognizable and non-bailable.

Strict Proof Of Marriage Not Needed For ‘Maintenance’ Proceedings Under Sec. 125 CrPC : Reiterated by SC

CRIMINAL APPEAL NOS. 2368-2369 OF 2009

KAMALA 
VERSUS
M.R. MOHAN KUMAR

Order Dated : 24-10-2018.

The Supreme Court in the case has reiterated the settled principle of law that unlike other matrimonial proceedings, a strict proof of marriage is not essential in claim of maintenance under Section 125 of CrPC and that when the parties live together as husband and wife, there is a presumption that they are legally married couple for claim of maintenance under Section 125 CrPC.

In the case, the Appellant was aggrieved by High Court of Karnataka’s order, whereby the High Court has set aside Family Court’s order wherein the Family Court had directed the Respondent to pay maintenance to the appellants i.e. wife and children. The ground on which the Respondent refused to pay maintenance under Section 125 of Code of Criminal Procedure (CrPC) was that there was no valid marriage between the parties and hence petition for maintenance under Section 125 CrPC could not be maintained.

The Two-Judge Bench of the Supreme Court in view of the evidence and material available on record allowed the appeal holding that there was a valid marriage between the parties and moreover a strict proof of marriage was not a pre-requisite for claiming maintenance under Section 125 of CrPC. The other observations made by the Apex Court in the case are as under:

That the evidence of witness coupled with the documents raised a strong presumption of a valid marriage.That unlike matrimonial proceedings where strict proof of marriage is essential, in the proceedings under Section 125 CrPC, such strict standard of proof is not necessary as it is summary in nature meant to prevent vagrancy.

The Supreme Court also made reference to it’s judgment in the case of Dwarika Prasad Satpathy v. Bidyut Prava Dixit, wherein it was held that the standard of proof of marriage in a Section 125 proceeding is not as strict as is required in a trial for an offence under Section 494 IPC. 

It was also noted in the case that an application under Section 125 does not really determine the rights and obligations of the parties as the section is enacted with a view to provide a summary remedy to neglected wives to obtain maintenance.That when the parties live together as husband and wife, there is a presumption that they are legally married couple for claim of maintenance of wife under Section 125 CrPC.

That it is fairly well settled that the law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for a number of year.

When husband is not entitled to produce Audio CD as additional Evidence in Divorce proceeding?

Careful perusal of the application having been filed by the husband, seeking therein permission to lead additional evidence, clearly suggests that by way of additional evidence husband intended to prove factum with regard to threats extended to him and his family members by the father of the wife, which fact was very much in his knowledge at the time of filing replication. Careful perusal of cross-examination conducted upon the wife witnesses, nowhere reveals that suggestion, if any, was ever put to the wife with regard to existence of audio CD or recording of the conversation qua the meeting held at Shimla. No doubt, wife in his examination-in-chief or cross-examination has admitted the factum with regard to meeting held at Shimla, but there appears to be no attempt on the part of the husband to put a suggestion to wife that during meeting at Shimla he and his family members were threatened and he was in possession of the CD, which omission on the part of the husband certainly compels this Court to agree with Mr. Anuj Nag, learned counsel representing the petitioner-wife that application having been filed by the husband at the time of arguments is an afterthought merely to fill up the lacuna. Husband by way of placing audio CD on record wants to prove misbehave of father of wife and statement given by wife at one point of time, but interestingly, no such suggestion came to be put to her in her cross-examination, rather such suggestion came to be put to RW-2 in her cross-examination i.e. mother of the wife, which in my mind could not be of any help.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CMPMO No. 330 of 2017

Decided On: 21.12.2018

 Honey Johar Vs. Ramnik Singh Johar

Hon'ble Judges/Coram:

Sandeep Sharma, J.

Citation: AIR 2019 HP 39

1. Being aggrieved and dissatisfied with the order dated 17.7.2017, passed by learned District Judge, Shimla, District Shimla, H.P., whereby an application having been filed by the respondent (hereinafter referred to as the husband), seeking therein permission to lead additional evidence, came to be allowed, petitioner (hereinafter referred to as the wife), has approached this Court in the instant proceedings, praying therein to set-aside the order, referred hereinabove.

2. Briefly stated facts, as emerge from the record are that husband filed divorce petition under Section 13 of the Hindu Marriage Act, against the wife in the Court of learned District Judge, Shimla, District Shimla, H.P. on the ground of cruelty. During the pendency of aforesaid divorce petition, husband filed an application under Order 18 Rule 17-A read with Section 151 CPC (Annexure P-1), seeking therein permission of the Court to allow him to lead additional evidence, which may be necessary and just for the proper adjudication of the case. Husband averred in the application that on 27.5.2017 wife led her evidence as RW-1 and RW-2, wherein she categorically admitted that her parents had come to Shimla in the month of July, 2014 and had a meeting with the family of the husband. Husband claimed by way of application that he is having recorded version in the form of audio CD of the entire conversation of this meeting held in July, 2014, which may be helpful for the proper adjudication of the dispute/case inter-se parties. Husband further averred in the application that in para Nos. 6 and 7 of the petition, he has categorically stated that he was subjected to physical and mental cruelty, which fact has been further reiterated in para 34 of the replication, wherein he has categorically averred that he is in possession of original recording of the conversation, wherein the wife has stated that she never wanted to marry the husband being asthmatic and hunchback. Husband in the application also stated that bare perusal of recording intended to be adduced on record by way of additional evidence would go to show that father of the wife has openly threatened him as well as his family members. Husband further averred in the application that during cross-examination, RW-1 and RW-2 have admitted the factum of meeting held at Shimla in July, 2014, but completely stated false facts and as such, in order to ascertain truth and veracity of the depositions of wife and her mother, it is very crucial and important to bring this piece of evidence (Audio CD) on record, to enable the learned Court to render just and fair decision in the case.

3. Aforesaid application having been filed by the husband came to be hotly contested by the wife, who opposed the application on the ground of inordinate delay. She stated in the reply that when matter is fixed for argument such application cannot be allowed and in case application is allowed at this stage, it would amount to filling up lacuna.

4. Learned District Judge taking note of the pleadings adduced on record by the respective parties, allowed the application vide order dated 17.7.2017 subject to cost of Rs. 5000/- and also held husband liable to bear the to and fro expenses of the wife's witnesses on the production of the proof of the same by them. Vide same order, learned District Judge, adjourned the matter for 25.7.2017 with the direction to the wife's witnesses to remain present for their cross-examination. In the aforesaid background, wife has approached this Court in the instant proceedings.

5. Having heard learned counsel representing the parties and carefully perused the material available on record vis-a-vis reasoning assigned by the learned District Judge, while passing impugned order, this Court finds that application under order 18 Rule 17-A CPC, which otherwise stands deleted came to be filed on behalf of the husband at the stage of argument. No doubt Court while exercising inherent power under Section 151 CPC can allow either of the party to produce additional document at any time/stage before rendering its judgment if it deems it necessary for the proper adjudication of the case, but same time such power is required to be exercised very cautiously, so that no prejudice, whatsoever, is caused to the other party.

6. Interestingly, husband in replication to the reply filed by the wife has stated in para-34 that he is in possession of audio recording of wife and her father, wherein wife has stated that she never wanted to marry husband being asthmatic and hunchback and her father openly threatened the husband and his family members and as such, this Court finds considerable force in the arguments of Mr. Anuj Nag, learned counsel representing the petitioner-wife that once such CD containing audio recording of wife and her father was in possession of husband then what prevented him from placing it on record before commencement of trial or at the time of cross-examination of wife and other witnesses.

7. Careful perusal of the application having been filed by the husband, seeking therein permission to lead additional evidence, clearly suggests that by way of additional evidence husband intended to prove factum with regard to threats extended to him and his family members by the father of the wife, which fact was very much in his knowledge at the time of filing replication. Careful perusal of cross-examination conducted upon the wife witnesses, nowhere reveals that suggestion, if any, was ever put to the wife with regard to existence of audio CD or recording of the conversation qua the meeting held at Shimla. No doubt, wife in his examination-in-chief or cross-examination has admitted the factum with regard to meeting held at Shimla, but there appears to be no attempt on the part of the husband to put a suggestion to wife that during meeting at Shimla he and his family members were threatened and he was in possession of the CD, which omission on the part of the husband certainly compels this Court to agree with Mr. Anuj Nag, learned counsel representing the petitioner-wife that application having been filed by the husband at the time of arguments is an afterthought merely to fill up the lacuna. Husband by way of placing audio CD on record wants to prove misbehave of father of wife and statement given by wife at one point of time, but interestingly, no such suggestion came to be put to her in her cross-examination, rather such suggestion came to be put to RW-2 in her cross-examination i.e. mother of the wife, which in my mind could not be of any help.

8. Leaving everything aside, once pleadings adduced on record by the husband itself suggest that audio CD sought to be produced on record by way of additional evidence was very much in existence before commencement of trial or cross-examination of wife or her family member, learned Court below ought not to have allowed the application having been filed by the husband, seeking therein permission to lead additional evidence that too at the stage of arguments because it would amount to filling up of lacuna.

9. Basic purpose of Rule 17 is to enable the Court to clarify any position or doubt. While exercising power Under Order 18 Rule 17-A CPC, Court may, either suo motu or on the request of any party, recall any witness at any stage in this regard. No doubt, power can be exercised at any stage, once the Court recalls the witness for the purpose of any such clarification, the court may permit the parties to assist the court by examining the witness for the purpose of clarification required or permitted by the Court. The power under Rule 17 cannot be stretched any further, however said power cannot be invoked to fill up omission in the evidence already led by a witness.

10. In this regard, reliance is placed upon the judgment rendered by Hon'ble Apex Court in Ram Rati versus Mange Ram(Dead) through legal representatives and others, MANU/SC/0260/2016 : 2016(11) Supreme Court Cases 296, wherein it has been held as under:-

"11. The respondent filed the application under Rule 17 read with Section 151 CPC invoking the inherent powers to the court to make orders for the ends of justice or to prevent abuse of the process of the Court. The basic purpose of Rule 17 is to enable the court to clarify any position or doubt, and the court may, either such motu or on the request of any party, recall any witness at any stage in that regard. This power can be exercised at any stage of the suit. No doubt, once the court recalls the witness for the purpose of any such clarification, the court may permit the parties to assist the court by examining the witness for the purpose of clarification required or permitted by the court. The Power under Rule 17 cannot be stretched any further. The said power cannot be invoked to fill up omission in the evidence already led by a witness. It cannot also be used for the purpose of filling up a lacuna in the evidence. "No prejudice is caused to either party" is also not a permissible ground to invoke Rule 17. No doubt, it is a discretionary power of the Court but to be used only sparingly, and in case, the court decides to invoke the provision, it should also see that the trial is not unnecessarily protracted on that ground."

11. It is quite apparent from the aforesaid exposition of law that though it is discretionary power of Court to allow parties to adduce on record additional evidence at any stage of the trial, but such power is required to be used sparingly so that it is not abused. The Hon'ble Apex Court has specifically held that in case Court decides to invoke this provision, it should see that the trial is not unnecessarily protracted on that ground. In the judgment (supra) Hon'ble Apex Court has held that "no prejudice is caused to either party is also not a permissible ground to invoke Rule 17 and as such, there is no force in the arguments of learned counsel representing the husband that no prejudice would be caused in case order passed by the District Judge is allowed to sustain, rather it would help to ascertain the truth. This Court finds from the record that matter is repeatedly being adjourned on one pretext or the other on the request of learned counsel representing the parties. Hence, this Court having taken note of the fact that since factum with regard to existence of audio CD sought to be adduced on record as additional evidence was very much in the knowledge of the husband before commencement of trial and at the time of leading evidence, has no hesitation to conclude that application filed under Order 18 Rule 17-A CPC is nothing, but an attempt to protract the trial and as such, same deserves to be dismissed.

12. Consequently, in view of the discussion made hereinabove, the present petition is allowed and impugned order dated 17.07.2017, passed by the learned Court below is quashed and set-aside.

13. The parties through their respective counsel(s) are directed to appear before the learned Court below on 4.01.2019, to enable it to proceed with the matter. Having taken note of the fact that the matter is hanging fire since 2014, this Court hopes and trust that learned Court below shall conclude the case expeditiously, preferably on or before 15th March, 2019. Interim order dated 28.07.2017 is vacated.

14. Any observations made hereinabove shall not be construed to be a refection on the merits of the case and shall remain confined to the disposal of this petition alone.

Will there be any interim maintenance for a professionally qualified spouse?

The Delhi High Court had headed an appeal against the Family Court’s order for awarding interim maintenance to a wife who is a qualified chartered accountant having no sufficient means to sustain herself.

The interim maintenance comes under Section 24 of the Hindu Marriage Act. According to the act, there is a provision for awarding the interim maintenance for the spouse who does not have any independent income sufficient to support her and to fight for the legal battle. The wife who is qualified and is a professional for the past 13 years cannot be granted the interim maintenance.The petition was filed by a woman who is a CA and her husband is an Electrical Engineer whose business has been run out. After the divorce petition given by the husband, the wife sought for interim maintenance for herself and the two children But the court does not consider the demand.The Delhi High Court on Monday had refused to grant the interim maintenance to the wife who is a Chartered Accountant by profession.The court ruled out that the wife, is well qualified with sufficient experience in her profession and she is not able to sustain herself. The Court had observed that there is no need to grant the interim maintenance according to Section 24 of the Hindu Marriage Act.The court has referred to the observations made under Mamta Jaiswal Vs. Rajesh Jaiswal with respect to the awarding interim maintenance under Section 24 of the Hindu Marriage Act. The court noted that the qualified spouse who has the earning capacity need not give the interim maintenance. Such spouses, according to the judgment treated to be unworthy of any financial entitlement from the partner who is separated.Section 24 in The Hindu Marriage Act, 195524 Maintenance pendente lite and expenses of proceedings. —Where in any proceeding 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 proceeding, 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 preceding 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: 54 [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.](i) As far as maintenance pendente lite and expenses of proceedings are concerned, no distinction has been made under section 24 of the Act relating to right of a wife for maintenance preferred under section 12 or 13 of the Act; Sandeep Kumar v. State of Jharkhand, AIR 2004 Jhar 22.
(ii) The divorce proceeding has terminated adversely to his client but an appeal is pending. Whether the appeal ends in divorce or not, the wife's claim for maintenance qua wife under the definition contained in the explanation (b) to section 125 of the code continues unless parties make adjustments and come to terms regarding the quantum or the right to maintenance. It is clear that mere divorce does not end the right to maintenance; Captain, Ramesh Chander v. Veena Kaushal, AIR 1978 SC 1807.
(i) During the pendency of the divorce proceedings at any point of time if the wife establishes that she has no sufficient independent income for her support, it is open to her to claim maintenance pendente lite; Manokaran v. Devaki, AIR 2003 Mad 212.
(ii) Section 24 entitles not only the wife but also the husband to claim maintenance pendente lite on showing that he has no independent source of income. However, the husband will have to satisfy the court that either due to physical or mental disability he is handicapped to earn and support his livelihood. Held that since the husband was able-bodied and was not mentally ill and only because his business had closed down, he could not be granted any maintenance, it being opposed to spirit of section 24 of the Act; Kanchan v. Kamalendra, AIR 1993 Bom 493.
(i) Pending an application either under Rule 5 of Order 9 or Rule 9 of Order 9 or Rule 13 of Order 9 of the Code of Civil Procedure a spouse is entitled to maintain an application under section 24 of Hindu Marriage Act, 1955. The expression “proceedings under the Act” appearing in section 24 cannot be given a narrow and restrictive meaning; Vinod Kumar Kejriwal v. Usha Vinod Kejriwal, AIR 1993 Bom 168.
(ii) Section 125(1)(d) has imposed a liability on both the son and the daughter to maintain their father or mother who is unable to maintain himself or herself; Dr. Vijaya Manohar Arbat v. Keshireo Rajaram Sawai, AIR 1987 SC 1100.
(iii) The direction by the Civil Court is not a final determination under the Hindu Adoptions and Maintenance Act but an order pendente lite under section 24 of the Hindu Marriage Act to pay the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioners own income and the income of the respondent, it may seem to the Court to be reasonable; Captain Ramesh Chander v. Veena Kaushal, AIR 1978 SC 1807.

SC: COURT NEEDS STRONG EVIDENCE IN SUMMONING ACCUSED UNDER S 319 CRPC

The Court had ordered that court must need a strong evidence while summoning accused under S 319 CrPC. The appeal has been heard by the bench of JusticeR. Banumathi<> and Justice Subhash Reddy and the order was passd by Allahabad High Court. In this case the complaint was filed by the father of the victim under section 302 of the Indian Penal Code.The Court had stated that “Neither the complaint nor the evidence of witnesses indicates as to the role played by the appellants in the commission of the offence and which accused has committed what offence. Under such circumstances, it cannot be said that the prosecution has shown prima facie material for summoning the accused for the offence punishable under Section 302 IPC.” 
The Court also observed that "Section 319(1) Cr.P.C. empowers the Court to proceed against any person not shown as an accused if it appears from the evidence that such person has committed any offence for which such person could be tried together along with the accused. It is fairly well settled that before the court exercises its jurisdiction in terms of Section 319 Cr.P.C., it must arrive at satisfaction that the evidence adduced by the prosecution, if unrebutted, would lead to conviction of the persons sought to be added as the accused in the case. In such circumstances, there is no justification for summoning the appellants even under Section 498A IPC and under Sections 3 and 4 of Dowry Prohibition Act. It is also pertinent to point out that upon completion of investigation, the Investigating Officer felt that no offence under Sections 498A, 304-B IPC and under Sections 3 and 4 of the Dowry Prohibition Act is made out."

The Section 319 in The Code Of Criminal Procedure states about Power to proceed against other persons appearing to be guilty of offence.

(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub- section (1), then-

(a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses re- heard;

For additional details, you can refer to lawyers in India.

WIFE TO PAY 20,000 MAINTENANCE TO HUSBAND UNDER SECTION 24 HINDU MARRIAGE ACT- DELHI HIGH COURT

* IN THE HIGH COURT OF DELHI AT NEW DELHI

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

1. Whether the Reporters of local papers may be allowed to seethe judgment? Yes
2. To be referred to Reporter or not? Yes
3. 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.

11. In the case of Jasbir Kaur Sehgal (Smt.) v. District Judge, Dehradun & Others, reported at (1997) 7 Supreme Court Cases 7, it has been held as under:

“8. The wife has no fixed abode of residence. She says she is living in a Gurudwara with her eldest daughter for safety. On the other hand the 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 courts. 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 circumstance of each case. Some scope for liverage can, however, be always there. Court has to consider the status of the parties, their respective needs, 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 payments or 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 her 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.”

12. A Single Judge of this Court in the case of Bharat Hegde v. Saroj Hegde, reported at 140 (2007) DLT 16, had culled out following 11 factors, which can be taken into consideration for deciding the application under Section 24 of Hindu Marriage Act, relevant portion of which reads as under:

8. Unfortunately, in India, parties do not truthfully reveal their income. For self employed persons or persons employed in the unorganized sector, truthful income never surfaces. Tax avoidance is the norm. Tax compliance is the exception in this country. Therefore, in determining the interim maintenance, there cannot be mathematical exactitude. The court has to take a general view. From the various judicial precedents, the under noted 11 factors can be culled out, which are to be taken into consideration while deciding an application under Section 24 of the Hindu Marriage Act. The same are:

(1) Status of the parties.

(2) Reasonable wants of the claimant.

(3) The independent income and property of the claimant.

(4) The number of persons, the non applicant has to maintain.

(5) The amount should aid the applicant to live in a similar life style as he/she enjoyed in the matrimonial home.

(6) Non-applicant‟s liabilities, if any.

(7) Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.

(8) Payment capacity of the non-applicant.

(9) Some guess work is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed.

(10) The non-applicant to defray the cost of litigation.

(11) The amount awarded under Section 125, Cr.P.C. is adjustable against the amount awarded under Section 24 of the Act.

13. The Supreme Court of India in the case of Jasbir Kaur (Smt.) (supra), has also 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”.

14. Further in a recent decision the Apex Court in Neeta Rakesh Jain v. Rakesh Jeetmal Jain reported at AIR 2010 SC 3540, has laid guidelines which the courts may keep in mind at the time of fixing the quantum of maintenance.

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

15. While, in this case, petitioner has placed copies of income tax returns for the assessment years 2007-2008 on record, a copy of balance sheet as on 31.3.2007 as also a copy of Profit and Loss Account for the year ended as on 31.3.2007, have also been placed on record. The Profit and Loss Account of the guest house of the petitioner reads as under: “PARADISE PG HOUSE PROP. MRS. RANI SETHI B-75, DUGGAL COLONYKHANPUR, NEW DELHI – 110062 PROFIT & LOSS ACCOUNT FOR THE YEAR ENDED ON 31.03.2007 PARTICULARS AMOUNT PARICULARS AMOUNT

To Establishment 695900.00 By Receipts 8380178.00

To Rent for Flats 3191660.00

” Mess Expenses 1521958.00

” Electricity & Water 295800.00

” Bank Charges 39870.63

” Staff Welfare 51270.00

” Transportation 478756.00

”Telephone Expenses 229234.00

” Vehicle Running & Maintenance 252859.93

” Hire Charges 121000.00

” Bedsheets & Lined 152540.00

” Medicines & Doctor‟s Fee 24128.00

” Printing & Stationery 42190.00

” Travelling & Conveyance 44262.00

” Insurance 15078.00

” Misc. Expenses 37383.00

” Security Expenses 164500.00

” Repair & Maintenance 286856.00

” Interest on Car Loan Amount

Written Off

24571.72

” Amount written Off

” Audit Fee 23697.00

” Depreciation 16200.00

” Net Profit transferred to Capital 191222.07

8380178.00 8380178.00

16. A perusal of the Profit and Loss Account shows that this business is

incurring a profit of `83,80178/- for the year ending on 31.3.2007.

17. The affidavits filed by both the petitioner and the respondent

before the trial court also unfold the details of the business, which

was initially being carried out by both the petitioner and the

respondent and subsequently admittedly by the wife along.

Relevant portion of the affidavit of the respondent reads as under:

“Affidavit of Sunil Sethi s/o late J.N. Sethi R/o A-43, Street No.10, Madhu

Vihar, I.P. Extension, Delhi-110092 (however presently without any

accommodation).

I the above-named deponent do hereby solemnly affirm on oath and state

as under:-

1. I say that being petitioner in the above mentioned case, I am

entitled to swear the present affidavit.

2. I say that the respondent is proprietor of M/s Paradise P.G. House

Informative Society, Sector-VI, Greater Noida, (U.P.).

3. That the said firm established by me and started with the capital

investment of Rs.8,00,000/- in the year of 2003 which I had got

from my share in my ancestral/parental property.

4. I say that the total asset of the said firm owned by the respondent

is about Rs.1,00,000/- approximately. This assessment is dated

05.09.08 when I forced to leave the business.

5. I say that asset of the respondent’s firm as on 05.09.08 were as

under:-

S. Particulars Approx.

CM(M)NO.169/2009 Page 11 of 14

No. value

(in Rs.)

1. 300 room on rent fully equipped and

furnished with double bed

18000×300.00

54 lacs

2. Tata Bus 1.50 Seaters

17 lacs

3. One Tata Winger (9+1 seater)

8 lacs

4. Three Maruti Vans

6 Lacs

5. One Maruti Zen

3 Lacs

6. One Accent Viva Car

4 lacs

7. One Mess Kitchen Modular with all apparatus, utensil, equipments etc.sufficient for 600 inmates along with all other required facilities 8 lacs

8. One Modern Zim with all equipments2 lacs

9. On General Store with stock 2 lacs

10. One Cyber Cafe with four computers

and other necessary equipments

1 ½ lacs

11. House-hold articles including Laptop,

Fridge, Air Conditions (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. I say that on 05.05.08, the liability over the firm namely M/s Paradise

was namely Rs.15,00,000/- approx.”

18. The petitioner herein also filed her affidavit before the trial court.

Affidavit of petitioner reads as under:

“I, Rani Sethi w/o Mr. Sunil Sethi r/o Rajdhani Nikunj, Plot no.94, I.P.

Extension, Patparganj, Delhi do hereby solemnly affirm on and declare as

under:

A. ………

B. That following are the details of the monthly expenditure incurred by

me in my business of running Paradise Hostel.

i. That I have hired on rent 50 and 31 flats respectively in two

societies namely informatics and Khushboo whose details

are as follows:

Rent of Flats Maintenance Electricity Bills

Informatics Rs.2,59,000/- Rs.34,800/- +Electivity Bills

Khusboo Rs.2,48,000/- Rs.31,000/- +Electivity Bills

CM(M)NO.169/2009 Page 12 of 14

Total Rent Rs.5,07,000/- Rs.65,800/- +Electivity

Bills

C. That the expenditure incurred and the monthly installments due for

the following are as under:

Hotel Bus EMI-22,216/- PER per month + 9 Lakh

invested in Bus down payment.

Winger’s EMI-10,450/- per month + 2,60,000/-

down payment

Viva’s EMI-10209/- per month

Zen’s EMI-10,540/- per month

Van’s EMI-17,365/- per month

Total EMI-71,365/- per month

D. Staff Salary – Home Keeping 25,000/- per month

Kitchen 48,000/- per month

Drivers and electrician

Total Salary of Staff 1,23,000/- per month

Hostel’s Ration + Grocery Exp.+ Snacks item etc. 2,50,000/- per month

for 386 strength of students

Maintenance Exp. 30,000/- per month

Diesel for Bus 25,000/- per month

Diesel for Generator- Informatics 38,800/- per month

Khushboo 19,400/- per month

House rent 12,500/- per month

House Maintenance 15,000/- per month+Electricity bill

Transport charge of hostel 27,000/- per month

Three buses on hire

E. That it is also submitted that session starts in August of every month.”

19. Taking into consideration the documents, which have been filed on

record of this court and the affidavit of the petitioner, the balance

sheet, the Profit and Loss Account of the guest house and the

income and expenditure of the guest house, it is clear that the

CM(M)NO.169/2009 Page 13 of 14

petitioner has a substantial income from the business, which was at

one time started jointly by both the petitioner and the respondent.

The purpose of section 24 of Hindu Marriage Act is to provide

support to a spouse who has no independent source of income and

is incapable of maintaining himself/herself. It is trite law that the

term „support‟ is not to be construed in a narrow manner so as to

mean bare subsistence. It means that the other spouse, who has no

independent source of income, is provided with such maintenance

so as to live in a similar status as was enjoyed by them in their

matrimonial home. It is the purpose of section 24 that the wife or

the husband who has no sufficient source of income for her or his

support or for the expenses of the proceedings must be provided

with such reasonable sum that strikes equity between the spouses.

20. Taking into consideration the facts of this case and the settled

position of law, I am of the view that learned trial court has

correctly considered the relevant factors and has also rightly relied

upon the judgments of this court as also the Apex Court. I find no

infirmity in the order dated 24.2.2009, which requires interference

by this court in the proceedings under Article 227 of the

Constitution of India. Accordingly, present petition is without any

merit and the same is dismissed.

21. Interim order dated 4.3.2009 stands vacated. All arrears shall be

cleared by the petitioner within a period of three months from today, which shall be paid by the petitioner to the respondent in equal installments and the first installment shall be paid by the petitioner within 15 days from today.

CM NO.3129/2009 (STAY).

22. Application stands dismissed in view of the orders passed in the petition.

G.S. SISTANI, J.

March 31, 2011