Unemployed man can’t be forced to pay Maintenance - IN THE HIGH COURT OF DELHI AT NEW DELHI

Crl.M.C.No. 491/2009      Sanjay Bhardwaj & Ors. v. The State & Anr. 

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: 9th August, 2010

Date of Order: 27th August, 2010

+Crl.M.C.No. 491/2009

  27.08.2010

  Sanjay Bhardwaj & Ors.        ... Petitioner

      Through: Dr. Naipal Singh, Advocate

Versus

  The State & Anr.                ... Respondents

       Through: Mr. O.P.Saxena, APP for the State

      With Mr. Gajraj Singh, SI

 Mr. K.C.Jain, Adv. for the Complainant/Wife

 JUSTICE SHIV NARAYAN DHINGRA

 1. Whether reporters of local papers may be allowed to see the judgment?  Yes.

2. To be referred to the reporter or not?            Yes.

3. Whether judgment should be reported in Digest?        Yes.

 JUDGMENT

 The present petition under Section 482 Cr.P.C. assails an order of interim maintenance under  The Protection of Women from  Domestic Violence  Act, 2005 (in short Domestic Violence Act)  passed by the learned MM  on 16th January, 2008  and confirmed by the learned  Additional Sessions Judge in appeal by order dated 29th February, 2008.

 2.    The petitioner was a Non-Resident Indian, working in  Luanda,  Angola  in Africa as a Manager.  He came to India  taking leave from his job for marriage.  Marriage between the petitioner and respondent  no.2/wife was settled through matrimonial advertisement.  The respondent wife was MA (English) and MBA.  As per her bio-data sent before marriage, she was doing job with a Multinational Company.  The marriage between the parties was solemnized on 14th May, 2007 at a Farmhouse in Vasant Kunj and was got registered on 25th May, 2007.  The parties lived together for a limited period of 10 days i.e. from 15th May, 2007 to 19th May, 2007 and from 2nd June to 6th  June, 2007.  While the allegations of husband are  that marriage failed within 3 weeks since  the wife was suffering from a chronic disease about which no information was given to him  before marriage  and a fraud was played.  The allegations made by wife were as usual of dowry demand and harassment.   Since the marriage did not succeed,  the husband/petitioner filed a petition under Section 12 of Hindu Marriage Act for declaring the marriage  as  null and void and the wife  first  filed an FIR against the husband under Section 498A/406 IPC and then filed an application under Section 12 of Domestic Violence Act.

3.    It is not relevant for the purpose of this petition  to go into the details of allegations and counter allegations made  by each other.  Suffice it to say that the learned MM passed an order dated 16th  January, 2008 directing husband to pay an interim maintenance of  ` 5000/- pm to the wife.  He fixed this maintenance without considering the contentions raised by the husband  (as is stated in the order)  that  the husband  lost his job in Angola  (Africa) where he was working  before marriage because his passport was seized by police  and he could not join his duties back.  After marriage he remained  in India, he was not employed.  In  the appeal,  learned Additional Session Judge noted the contentions raised by the husband that he had become jobless because of the circumstances as stated by him and  he had no source of income,  he was not even able to maintain himself and had incurred  loan,  but observed that since the petitioner had earlier worked abroad as  Sales Manager  and  in view  of the  provisions of  Domestic Violence Act,  he had the  responsibility to maintain  the  wife and monetary  relief  was  necessarily  to be provided to  the aggrieved person i.e. wife.  He observed that the wife was not able to maintain herself therefore husband,  who  earned handsomely  in past while working abroad, was liable to pay 5000/- pm to the wife as fixed by the learned MM.

 4.    A perusal of Domestic Violence Act  shows  that Domestic Violence Act does not create any additional right in favour of wife regarding maintenance.  It only enables the Magistrate to pass a maintenance order as per the rights available under existing laws.  While, the Act specifies  the duties and functions of protection officer, police officer, service providers, magistrate, medical facility providers and duties of Government, the Act is silent about the duties of husband  or the duties of  wife.  Thus,  maintenance can be fixed by the Court under Domestic Violence Act only as per prevalent law regarding providing of maintenance by husband to the wife.  Under prevalent laws i.e. Hindu Adoption & Maintenance Act, Hindu Marriage Act,  Section 125 Cr.P.C  -  a husband is supposed to maintain his un-earning spouse out of the income which he earns.  No law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not.   Court cannot tell the husband that he should beg, borrow or steal but give maintenance to the wife,  more so when the husband and wife are almost equally qualified and almost equally capable of earning and both of them claimed to be gainfully employed before marriage.  If the husband was BSc.  and Masters  in Marketing Management from Pondicherry University,  the wife was MA  (English) & MBA.  If  the  husband was working as a Manager abroad, the wife with MBA degree was also working in an MNC in India.  Under these circumstances, fixing of maintenance by the Court without there being even a prima facie proof of the husband being employed in India and with clear proof of the fact that the passport of the husband was seized, he was not permitted to leave country, (the bail was given with a condition that he shall keep visiting Investigating Officer as and when called) is contrary to law and not warranted under provisions of Domestic Violence Act. 

 5.  We are living in an era of equality of s*xes.  The Constitution provides equal treatment to be given irrespective of s*x, caste and creed.  An unemployed husband,  who is holding an  MBA degree,  cannot be treated differently  to an unemployed wife, who is also holding an MBA degree.  Since both are on equal footing one cannot be asked to maintain other unless one is employed and other is not employed.  As far as  dependency  on parents is
concerned,  I consider that once  a person is  grown up,  educated  he  cannot  be asked to beg and  borrow from the parents and maintain  wife.  The parents had done their duty of educating them and  now  they cannot be burdened to maintain husband and wife as both are grown up and must take care of themselves.

  6.    It must be remembered that there is no legal presumption that behind every failed marriage there is either dowry demand or domestic violence.  Marriages do fail for various other reasons.  The difficulty is that real causes of failure of marriage are rarely admitted in Courts.  Truth and honesty is becoming a rare commodity, in marriages and in averments made before the Courts.

7.    I therefore find that the order  dated 16th  January, 2008 passed by the learned MM and order dated 29th February, 2008 passed by the learned Additional Sessions Judge  fixing maintenance without there being any prima  facie proof of the husband being employed  are  not tenable  under  Domestic

Violence Act.  The petition is allowed.   The orders passed by Metropolitan Magistrate and learned Additional Sessions Judge are hereby set aside.

Threat Management for 498A and other dowry cases

Ponder a while and donot take rash decisions especially if you have kids. Think many times over and donot be afraid. It is not worth living a life of fear cos fear itself is a disease that will eat you alive. If you fear/know that a false 498a complaint is going to be put on you or if they threaten you in anyway it is better to be safe than sorry:-
1. Immediately file RCR, if your wife is separated from you(Restitution of Conjugal rights is like saying"I want my wife back(who deserted me), but with the following conditions"- but since the wife's intention itself is wrong, she won't be able to agree to those conditions(you can even make the conditions more difficult and impossible, to make sure that she will not come back) , it is similar to divorce petition only in the prayer you will be asking court for your saftety, prevent harrasement , and blackmail/extortion .

2. File a police complaint mentioning Blackmail/extortion threat , threat for false dowry case , or any other thing you have the evidence for. Do not forget to mention that she had left the house after taking all jewellery and cash in your absence, as the case may be.

3. Recording all the conversation if any(telephone recording devices, or miniature recording devices when in person discussions happen).

4. File a criminal case in court under 156(3) under read cr. procudure 200 , with reference to police complaint .(these are sections in the Code of Criminal procedure(Cr.P.C in short), 1973, reproduced alongside:
Cr.P.C Sections156. Police officer's power to investigate cognizable case
(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned.
200. Examination of complainant
A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.

5. Take the certified copy from court and keep it with you . Make a couple of copies. Send it to nearest police station. Nearest police station of your in-laws. File for Anticipatory bail in the High Court.

If the police insist you come to police station or come to your place for arrest after they have been bribed sufficiently by your wife or in-laws, just submit the court petition. They are the criminals , not you. Also google and read the 498a survival kit in the meantime.

*******************

Another mode of fighting this injustice and sham complaints for extortion also see the Dowry circulars link and get a hard copy - preparation and knowledge is the only way to counter threats:

Wife has submitted a list of stridhan which is not as per rule 2 of Dowry Prohibition Act and her application may be rejected in view of Circular no. 07/2007 and other she may be asked to furnish valid bills as well as cash flow details in view of para 7 of Circular no. 459-66/P.Sec/ Addl.CP/CAWC dated 29/03/2009.

Further updates are as follows :-

The application of Swamy was accepted by the CAW Cell on the same day with the help of 100 no. police officials and he was given stamped receiving of the his application as he called Police Control Room by dialing 100 no. and they helped him while the other victims of dowry harrassment witnessed and appreciated his courage outside CAW Cell, Nanak Pura, Delhi.

Now on the very next working day Swamy received a notice from CAW Cell, that he is requested to appear in CAW Cell for couselling. Earlier they said that you don't need to come here as we will registere FIR agains you to teach you lesson for consulting with lawyers.

Swamy has now also filed one RTI in CAW Cell requesting information within 48 hrs asking for details of complaint number, name of accused, FIR no. (if any) with certified copy. Reply is avaited.

Swamy has also filed one RTI to Police Control Room to provide certified copy of transcript, audio Recording and forms filled, dd entry of police official reached on spot from P.S. during his call made to Police Control Room , to be provided within 48 hrs.

Swamy has also been advised to file an application requesting action against wife for , forgery, extortion, conspiracy as she has claimed for 18 " TV and 220 Ltr. Fridge when Swamy having bills of 14 " TV and 190 Ltr. Fridge, bills were of date 3 days before marriage are are on the name of his wife.

False Dv and Women Failed to Prove it

IN THE COURT OF DR. SHAHABUDDIN : MM : ROHINI :DELHI

Application No.1192/1

PS Sultan Puri

U/s 12 of Domestic Violence Act, 2005

ORDER

Sonia versus Vinod etc.

15.09.2007 (  At 3.00 p.m. )

1.  Applicant Sonia is present in person at this time.

All the respondents are present in person with Ld. Counsel Shri Anujai Tiwari. Ld. Protection Officer Ms. Kiran also present.

2.  By this order, I have to decide an application of applicant Sonia w/o Shri Vinod and

D/o Shri Brahm Parkash ( in short called as applicant hereinafter) filed u/s 12 of the Protection of Women From Domestic Violence Act, 2005 ( in short called as Act hereinafter).

3.  This application was filed by the applicant on 20.08.2007. The main facts of this application are that the applicant was married to respondent No.1 on 19.11.2006;that respondent No.1 and his other family members were not satisfied with the dowry articles and they started harassing the applicant on one ground or the other; that severe beatings were also given to the applicant by respondent No.1 and his other family members on several occasions; that respondent No.1 was habitual of drinking and misbehaving with the applicant from time to time without any justified reasons; that matter was also reported to the local police but no action was taken against any of the respondents and hence this application was filed claiming relief as prayed for at the end of the application.

4.  Notice of this application was given to Ld. Protection Officer Ms. Kiran (in short called as Protection Officer hereinafter) and she filed Domestic Incident report before this court pertaining to this matter. Notice of this application was also issued to all the respondents through Protection Officer and they had put their appearance before this court through their Ld. Counsel on 01.09.2007. They were also supplied copies of the application and all the relevant papers attached in support of it and they sought time to file reply to this application. However, they did not opt to file any written reply to it and their Ld. Counsel orally opposed this application on behalf of respondents without filing any written reply.

5.  I have heard applicant and her counsel Mr. Danvir Singh and Mr. Manjeet as well as all the respondents and their Ld. Counsel Shri Baldev Sharan on 14.09.2007 pertaining to this matter. Views of Protection officer were also taken into consideration as she was also present on 14.09.2007. The main submissions of applicant and her Ld.

Counsel were that on the basis of entire facts narrated in the application coupled with Domestic Incident Report submitted by Protection Officer, she was in dire need of protection orders as per prayer clause of the application under discussion.

6.  On the other hand, main submissions of the respondents and their Ld. Counsel were to the effect that no domestic violence had ever been committed against the applicant by any of the respondents; that respondent No.1 is the only married person in his family having liability to support his widow mother aged about 75 years; that respondent No.1 was also having liability to support his other three sisters and one brother, who were all unmarried and depending upon the earnings of respondent No.1; that family of respondents was very poor family and they were having only small house of three small rooms and they cannot spare one room for the applicant exclusively out of this small accommodation; that respondent No. 1 was also ready to reside peacefully with the applicant in his parental house but the applicant herself was of quarrelsome nature and was not co-operating at all on any point with the family members of respondent No.1; that respondent No.1 was still ready to keep her in his parental house provided she cooperates with other family members; that respondents were the victims rather than aggressors and that it was the applicant only who was harassing the respondents on trivial matters. Lastly, a prayer was made to dismiss the application under discussion.

7.  I have perused the entire judicial file minutely in view of the above mentioned rival submissions. I have also taken into consideration the view points of the Protection Officer and the Domestic Incident Report submitted by her before this court.

8.  On the basis of entire facts and circumstances of this case, I am prima facie of the considered opinion that behaviour of applicant is of such a nature that she is not cooperating with the respondents. She prima facie appears to be harassing the respondents on trivial matters. The applicant has prima facie failed to satisfy this court that respondent No.1 or any of his other family members have really committed any Domestic Violence against her in the given facts and circumstances of this case. The applicant prima facie appears to be residing at present with her parents without any justified reasons. Her in-laws are very much in need of her company and support because all the three sisters and one brother of respondent No.1 are unmarried at present and prima facie depending upon the earnings of respondent No.1 and the mother of respondent No.1 appears to be quite old and physically weak in health.

She also needs the services of her daughter-in-law namely,applicant for her own care and protection.

9.  On the basis of above mentioned discussion, I am prima-facie of the considered opinion that no domestic violence has taken place pertaining to this matter and the applicant does not deserve any order in her favour from this court at present. Her application under discussion is prima facie found to be devoid of any merits at this stage it is hereby dismissed. No order as to costs.

10.              Let one certified copy of this order be given dasti to the applicant and one such copy collectively to all the respondents as they are all family members. One certified copy of this order be also sent to the SHO of area concerned and one such copy be also given to the Protection Officer for her record, as prayed for. Announced in the open court,

today i.e., on 15th of September, 2007.

( DR. SHAHABUDDIN )

MM. ROHINI / 15/9/07

Supreme Court judgment on misuse of Section 498A of IPC

1  Satyajit Banerjee and others v. State of West Bengal and others (Supreme Court OF INDIA)

Date of Judgment : 23/11/2004

Indian Penal Code, ss. #498A, 306 - Trial Court acquitted accused but High Court set aside acquittal and

directed a de novo trial - Whether High Court right in directing examination of additional witnesses

under s. 311 in revision?; whether direction of High Court to trial court to record further evidence and take a 'fresh decision from stage one' is without jurisdiction?- Held, direction for retrial should not be

made in all or every case where acquittal of accused is for want of adequate or reliable evidence - Even if a retrial is directed in exercise of revisional powers by High Court, evidence already recorded at initial trial cannot be erased or wiped out from record of case - Trial Judge has to decide case on basis of evidence already on record and additional evidence which would be recorded on retrial - Clarified and reiterate that trial Judge, after retrial, shall take a decision on basis of entire evidence on record and strictly in accordance with law....

2 Ruchi Agarwal v. Amit Kumar Agrawal and Others (Supreme Court OF INDIA)

Date of Judgment : 5/11/2004

#Quashing  of criminal complaint - Alleging offences under ss. #498A, 323 and 506 IPC, and ss. 3 and 4 of #Dowry  Prohibition Act - #Quashing  on ground of lack of territorial jurisdiction - Whether #Quashing  of criminal complaint sustainable? - Held, that appellant having received relief she wanted without contest on basis of terms of compromise, cannot now accept argument of appellant - Conduct of appellant indicates that criminal complaint from which this appeal arises was filed by wife only to harass respondents - It would be an abuse of process of court if criminal proceedings from which this appeal arises is allowed to continue....

3 Rajkumar v. State of Madhya Pradesh (Supreme Court OF INDIA)

Date of Judgment : 14/9/2004

Indian Penal Code. 1860, s.302 - duty of the prosecution to establish that the accused had or necessarily would have remained at the house around the time when the attack took place - barring the evidence of PW8 who claimed to have seen the accused at 9.00 a.m. at his house, there is no other evidence to establish the presence of the accused in the house proximate to the time of occurrence - vital link in this behalf is missing in the case - no motive has been proved or seriously suggested for inflicting fatal injuries on the pregnant wife whom the accused married a year back - in a case based on circumstantial evidence, this factor also should be kept in view - no reason to set aside findings of trial court - appeal allowed....

4 Y. Abraham Ajith and others v. Inspector of Police, Chennai and another (Supreme Court OF INDIA)

Date of Judgment : 17/8/2004

Code of Criminal Procedure, 1973, s. 482 - Prayer for #Quashing  proceedings - Single Judge of the Madras High Court rejected prayer - Whether judgment of Single Judge sustainable? - Held, in factual scenario disclosed by complainant in complaint petition, inevitable conclusion is that no part of cause of action arose in Chennai and, therefore, concerned magistrate had no jurisdiction to deal with matter - Proceedings are quashed....

5 Sushil Kumar v. State of Haryana (Supreme Court OF INDIA)

Date of Judgment : 10/8/2004

Indian Penal Code, ss. 304B, #498A - Conviction - Appeal against conviction - Whether conviction sustainable? - Held in absence of any evidence to show that victim was subjected to cruelty or harassment soon before death, no offence under s. 304B is made out - Absolutely no evidence of coercion, conviction under s. #498A becomes unwarranted - Convictions and sentences of appellant set aside...

6 Sakatar Singh and Others v. State of Haryana (Supreme Court OF INDIA)

Date of Judgment : 13/4/2004

IPC, ss.306, #498A r/w s.34 - Prosecution has not established allegation of demand - Based on erroneous inferences drawn on unproved facts and placing reliance on statements of interested witnesses trial court came to a wrong conclusion as to guilt of accused persons - High Court failed to notice its legal responsibility of discussing evidence independently and recording its findings on basis of such independent assessment of its own, because it is first court of appeal on facts - Appeal allowed...

7 The State of Andhra Pradesh v. Raj Gopal Asawa and Another (Supreme Court OF INDIA)

Date of Judgment : 17/3/2004

IPC, 1860, ss. 304 B and 498 A and IEA, 1872, s. 113 B - conjoint reading shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment - prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the 'death occurring otherwise than in normal circumstances' - _expression 'soon before' is very relevant - prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates -'Soon before' is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence - hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of #Dowry  death as well as for raising a presumption under Section 113-B of the Evidence Act - held on facts that in view of the death occurring within the very few months of the marriage, and the evidence of PWs 2, 3, 4 and 6 that shortly before the deceased committed suicide, demand of #Dowry  was made, the plea in untenable. The accusations clearly stand established so far as A-1, respondent no.1 is concerned. So far as accused A-3 is concerned, there is no evidence that he ever made any demand of #Dowry  -- custodial sentence of 7 years would meet the end of justice for respondent no.1 - appeal partly allowed....

8 Hans Raj v. State of Haryana (Supreme Court OF INDIA)

Date of Judgment : 26/2/2004

[A] Advocates & Judges - judgments of the learned Additional Sessions Judge and the High Court - constrained to observe that the High Court while disposing of the appeal did not even apply its mind to the facts of the case - disturbing feature noticed by us is that the High Court merely repeated paragraphs after paragraphs from the judgment of the learned Additional Sessions Judge as if those conclusions were its own, reached on an appreciation of the evidence on record - many of the paragraphs are word from word borrowed from the judgment of the learned Additional Sessions Judge without acknowledging that fact - practice deprecated. [B] Deceased committing suicide within seven years of marriage - held, under Section 113-A of the Indian Evidence Act - prosecution has first to establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband (in this case) had subjected her to cruelty - even if these facts are established the Court is not bound to presume that the suicide had been abetted by her husband - section gives a discretion to the Court to raise such a presumption, having regard to all the other circumstances of the case - allegation is of cruelty, nature of cruelty to which the woman was subjected, having regard to the meaning of word cruelty in Section 498-A I.P.C. to be considered - no automatic presumption that the suicide had been abetted by her husband - held on facts, offence under s.306 not made out - conviction under s.#498A ordered....

9 Nallam Veera Stayanandam and Others v. Public Prosecutor, High Court of Andhra Pradesh (Supreme Court OF INDIA)

Date of Judgment : 24/2/2004

Two dying declarations - if the first is accepted all other evidence led by the prosecution would not help the prosecution to establish a case under section 304B IPC because of the fact that even a married woman harassed by demand for #Dowry  may meet with an accident and suffer a death which is unrelated to such harassment - it is for the defence to satisfy the court that irrespective of the prosecution case in regard to the #Dowry  demand and harassment, the death of the deceased has not occurred because of that and the same resulted from a cause totally alien to such #Dowry  demand or harassment - deceased died within 3 years of her marriage - presumption under section 113B of the Evidence Act is available to the prosecution, - first dying declaration accepted - presumption stands rebutted - unless the prosecution is able to establish that the cause of death was not accidental by evidence other than the dying declarations, the prosecution case under section 304B IPC as against the appellants must fail - on facts convicted under s.#498A, IPC....

10 Rishi Anand and another v. Government of N.C.T. of Delhi and others (Supreme Court OF INDIA)

Date of Judgment : 20/3/2002

The High Court, in exercise of its jurisdiction under Section 482 Cr.P.C., ought to have quashed the criminal proceedings against the appellant as there were no allegations, much less of specific nature, even to remotely connect the appellant with the alleged offence under Section 406 IPC.

11 Baburam v. State of Madhya Pradesh (Supreme Court OF INDIA)

Date of Judgment : 29/1/2002

It is extremely dangerous to rely upon the prosecution evidence to base a conviction against the appellant when the prosecution has failed to establish the case against the appellant beyond all reasonable doubt and when there is no motive whatsoever for the appellant to have caused the death or abetted the suicide of the deceased because she failed to bring in sufficient #Dowry ....

12 Satvir Singh and otherswith Tejinder Pal Kaur v. State of Punjab and another (Supreme Court OF INDIA)

Date of Judgment : 27/9/2001

Under Section 304 B, it is not enough that harassment or cruelty was caused to the woman with a demand for #Dowry  at some time, but it should have happened .

13 G. Raj Mallaiah and Another v. State of Andhra Pradesh (Supreme Court OF INDIA)

Date of Judgment : 27/4/1995

JUDGMENT: J U D G M E N T S. Rajendra Babu, J. Leave granted. The appellants were chargesheeted for offences arising under Section 304 I.P.C. and Sect ion 3 and 4 of the #Dowry  Prohibition Act read with section #498A, I.P.C. The allegation made in ...

14 CASE NO.:Appeal (civil) 877 of 2007     DATE OF JUDGMENT: 21/02/2007

PETITIONER:Smt. Mayadevi  Vs. RESPONDENT:Jagdish Prasad

JUDGMENT:  (Arising out of SLP (C) NO. 3686 OF 2006)

Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Rajasthan High Court at Jodhpur dismissing the appeal filed by the appellant under Section 28 of the Hindu Marriage Act, 1955 (in short the 'Act').

Respondent filed an application for divorce on the ground of cruelty alleging that because of the acts of cruelty on several occasions perpetuated by the appellant, the respondent-husband was under apprehension that it would not be desirable and safe to stay with the appellant and to continue their marital relationships.

[quote] the appellant used to make demands for money frequently and used to quarrel when money was not paid. She did not even provide food to her husband or the children and used to threaten the

husband to falsely implicate him in a case of #Dowry  demand and to kill the children and to put the blame on the respondent-husband and his family members.[quote]

Job Qualified woman can't claim maintenance - Powerful Judgment maintenance denied judgements

IN THE FAMILY COURT MUMBAI AT BANDRA

                                 PETITION NO. E­ 119 OF 2013

Firdos Mohd. Shoeb Khan           ..  Petitioner

       Vs.

Mohd.Shoeb Mohd.Salim Khan              .. Respondent

ORDER BELOW EXH.27

1.                 This is an application moved by petitioner­Firdoz Mohd. For grant of maintenance from her husband Mohd.Shoeb, during the pendency of petition for grant of maintenance u/s 125 of Cr.P.C. It is submitted by the petitioner that at the time of Nikah Meher amount of Rs.14 lakhs was fixed, yet said amount was not paid by the respondent. Throughout their cohabitation at the matrimonial house the respondent and his family members had illtreated her, harassed her physically and mentally for bringing less dowry.  The respondent and his family members had demanded more Rs.50 lakh as dowry and gold ornaments, Mercedes Benz Car etc. from her parents. Due to demand of dowry the petitioner was forced to live separately from April 2011, since then she is residing with her parents.  She has no source of income and she is totally depend upon the mercy of her parents. The respondent is capable to pay maintenance to her but he has neglected and refused to pay maintenance.

2.                 The respondent is a successful businessman, his family is business family.  The respondent alongwith his family members was doing business not only in India but also in Dubai and other countries. They are running their business jointly and earning the income more than Rs.15 lakh per month.  The respondent and family members were having property at Mumbai, Bangalore, Dubai and other places.  The respondent is having six companies, 20 bank accounts at Mumbai, Dubai and Bangalore.  His younger brother is working at London, his two siblings are in family business. The respondent is travelling abroad for garment business work.  Considering the status of her husband she prayed for grant of maintenance @ Rs.2 lakhs per month.

3.                 The respondent has filed his reply below Exh.29.  According to him, the petitioner­wife is not entitled to get maintenance as she is not legally wedded wife.  The marriage between petitioner and respondent was dissolved by way of Talaq on 7.09.2014.  Secondly, the petitioner is well qualified having good experience and good income therefore, she is not entitled for grant of maintenance.  The petitioner has given false address before this Court, actually all earlier communication was made on the address of ancil Tower, New Mill Road, Kurla.

4.                 The petitioner is living luxurious life, she has huge investment including over rs.1 crores worth of gold and diamond jewellery hidden in separate locker.  She is flying international destination at least thrice every year for 15 to 30 days.  The petitioner is graduate and working independently in a prime institute likely Nair hospital, Larsen & Tubro etc.  Presently she is practicing as a dietitian.  Her income is not less than Rs.50,000/­­per month. She is having sufficient means from her own source, on that count also she is not entitled for grant of maintenance hence, respondent prayed for rejection of application.

5.                 Heard learned counsel for petitioner and respondent. It is argued by the learned counsel for respondent that on 7.9.2014 their marital tie was dissolved as he had given talaq to her therefore, petitioner has lost the status of wife and being divorcee Muslim wife she is not entitled to get maintenance from the respondent.  The Mohd. Law is drastically changed in a recent era. Now a days a Muslim woman who is divorcee or who obtained divorce from her husband is entitled to get maintenance from her husband till she gets remarried. Apart from this, Section 125 of Cr.P.C., itself has given defination of 'wife' which includes divorcee wife.  Section 125 explanation (b) read as under :(b) “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.”

6.                 The above clause clearly shows that the wife though divorcee is entitled to get maintenance from her husband and divorcee wife is included by Legislature in the defination of wife for the purpose of maintenance. The Law in respect of maintenance of Muslim wife is day by day changing. First time in the case of Shabana Banoo Vs. Inbram Khan, reported in I (2010) D.M.C. 37, (SC), the Hon'ble Supreme Court has held that the Muslim Divorcee wife is entitled to get maintenance from her husband.

7.                 While dealing with the case of Parveen Rao Vs. State of Utterakhand and another, reported in I (2013) D.M.C., 743, the Hon'ble Utterakhand High Court in para No.12 held that,

“In view of proposition of law laid down in aforesaid precedent, it is abundantly clear that the Muslim woman cannot be forced to claim maintenance under the Act only.  She is well entitled to claim maintenance u/s 125 of Cr.P.C. irrespective of fact whether she has been divorced or not provided she has not remarried herself.”

8.                 In the anvil of above legal position it is clear that the Muslim woman who is either divorcee or who obtained divorce entitled to get maintenance till her remarriage.  In such circumstances the story brought by respondent that on 7.09.2014 talaq took place between them does not affect the right of petitioner to claim maintenance.  The story brought by the respondent that on 7.9.2014 he had given talaq to her is the subject matter of evidence and it can be proved during the course of proceeding but at this stage, the status of respondent cannot be denied.  She is having status of wife which is required u/s 125 of Cr.P.C., may be or may not be she is divorcee or non divorcee wife but she is entitled to get maintenance from her husband. Secondly, making story that the husband has given divorce to wife itself entitles the wife for seeking relief of maintenance.  When the husband is coming with the case that he has already given divorce and wife is denying the same, then certainly this act comes under the purview of cruelty which entitle the petitioner for seeking relief.

9.                 It is argued by learned counsel for petitioner that respondent is owner of (i)Khwaja Exports Pvt.Ltd.,(ii) Khan Holdings Pvt.Ltd.(iii)Keygien Textile Industries Pvt.Ltd.(iv) Keygien Global Ltd.(v)Radium Garments Pvt.Ltd. And (vi) MSK Technology Solutions Pvt.Ltd. The petitioner has placed on record the internet output documents respondent is managing director/directors of above stated company. The respondent is joined Keygien Global Ltd. on 26.3.2001, he had joined Keygien Textile Industries Pvt.Ltd. On the same day.  He was joined the Khan Holdings Pvt.Ltd. On 25.3.2001. The companies joined him at similar period.  A single document is not placed on record to show the net income getting by respondent from above company. The petitioner has given list of the bank accounts hold by respondent and his family.  The respondent is holding bank account before HSBC, DIB, ADID (two accounts), S.B.I., Oriental bank of commerce (three accounts) and she has given account nos. She had also given the details of bank account hold by respondent's family, in all total she had provided list of 20 bank accounts. Either of the parties has not placed on record a single bank account statement or passbook issued by Bank.

10.            It is admitted position that the respondent and his family members are connected with five companies namely (i)Khwaja Exports Pvt.Ltd.(ii) Keygien Global Ltd.(iii)Radium Garments Pvt.Ltd.(iv) Khan Holdings Pvt.Ltd. The letter issued by P.L. Babaria & Associates Chartered Accountant dated

19.12.2014 shows that the respondent is having 500 share in Khawaja export Pvt.Ltd. Having paid value of rs.5,000/­.  In other companies he have no share.  The above stated Chartered account also certified that in the year 2011­12 the income of respondent was rs.1,50,670/­, in the year 2012­13 it was Rs.1,81,844/­, in 2013­14 rs.2,00015,/­, and in the year 2014­15 his income was rs.2,10,013/­.  The income tax returns filed alongwith record shows same story.

11.            The statement made by the parties in their earlier proceeding is admissible statement.  It appears from the record that the respondent has filed reply to the application of petitioner before 29^th Court M.M.Dadar, Mumbai in case No.25/RA/2012 N 372/2012 relating to Cr.No.367/2011. In her reply she had stated as follows :

I would further like to bring it to your notice that my husband Mohammed Shoeb Khan has not travel out of India. Since August 2010 for any purpose (i.e. not even for business nor for Umrah).

12.            The statement made by the petitioner­wife clearly shows that the respondent never went to abroad since 2010.  Similarly in the same application she had stated that, “I would further like to inform you that my husband has been residing in Dubai since 1992 ( for 16 years) he holds property in Dubai and re­issued Passport of Dubai and he has no property in Mumbai and elsewhere in India and he merely holds 500 shares of value Rs.10 (5000 Rs.) in his Garment business”. The above statement made by petitioner support the version of respondent as well as C.A.,of respondent that respondent is holding only property worth Rs.5,000/­ in Khawaja Export Pvt.Ltd.

13.            In respect of the allegations made by the petitioner in her application filed before M.M., that he is having property at Dubai.  Said version if taken into consideration then also she had not filed single documentary evidence to establish above fact. The petitioner has not taken pain to file the memorandum and article of association of company which shows real pictures.  The petitioner has not asked the respondent to file the memorandum of his company or memorandum of companies hold by his family. The copies of article of association and memorandum is easily available before the Competent authority.

14.            The respondent is submitting that he is earning meagre amount and he is residing on leave and license basis.  The respondent has filed on record leave and license deed dated 20.10.2014. Said leave and license agreement is not challenged by the petitioner.  It is further argued by the learned counsel for petitioner that the respondent and his family members are doing business and they are earning an amount of Rs.15 lakh per month.  The respondent has moved an application for travelling abroad before M.M. Dadar, in criminal case No.1067/PW/2012. In the said application para No.3 the respondent has submitted that he is businessman and he had registered office at Shivri and factory at Bangalore.  He is doing business of export of readymade garment to the Gulf countries.  In connection with business he is required to travel abroad.  In para 6 of that application he further stated that he has come from business family and he has deep root in the society, his family is respectable family. The application for return of passport filed before M.M. Dadar, at the hands of respondent shows that the respondent himself has stated that he was going to London from Bangalore for business deal as his factory is situated at Bangalore.  He is engaged in garment factories and required to go abroad in connection with his business.  The above statements made by petitioner and respondent are the admissions given by them.

15.            The petitioner has admitted that respondent have no property except worth Rs.5,000/­in India but at the same time she tried to affirm that respondent is having property at Dubai. The statements made by petitioner as well as the statement made by respondent that he is having office at Mumbai and factory at Bangalore, he used to travel abroad for garment business purpose shows that the parties have affirmed some facts by way of this admission.  Admittedly the respondent and his family are connected in garment business. To show details of share no factory details, account statement of factory or memorandum and article of factories are not placed on record.  The above admissions given by both the parties come under the purview of Section 17 of Indian Evidence Act which suggests the existence and non existence of economic affairs of both the parties.  Once the fact is affirmed by the parties to the proceeding subsequently the parties are not entitled to change their view as per the evidence act admission operates estoppel.

16.            The learned counsel for respondent has argued that the petitioner is well qualified and she is earning an amount of Rs.50,000/­per month, she is having sufficient income for her maintenance.  It is argued by the learned counsel for respondent that before the police station Worli on 12.11.2011 the petitioner has given statement u/s 161 of Cr.P.C.  The petitioner has admitted that she has completed degree in Food and Science Nutrician, she had worked as a dietician, she is Post Graduate in Dietician field, she had also worked with Larcen and Tubro etc. but at present she is not working.  The above statement made by the petitioner clearly shows that she is well qualified and able to do job. The respondent though submitted that she is having huge investment in crores of rupees but nothing is placed on record. It is clear from the statement of petitioner that petitioner is well qualified having capacity to earn.  The Hon'ble Madhya Pradesh High Court in the case of “Mamta Jaiswal Vs. Rajesh Jaiswalheld that well qualified wife is not entitled to remain as an idle and claim maintenance from her husband.  In short, the wife is not entitled to advantage of her own wrong, she cannot harass the husband on the count of maintenance though she is capable to earn.  In the present case in hand, the petitioner­wife is very qualified, she has worked with various companies. This admitted by herself, now she is claiming that she is a housewife, having no source of income.  The wife who is well qualified and claiming maintenance by sitting idle is not entitled to get maintenance, secondly she herself has admitted that though her husband is connected with garment business but he has share worth rs.5,000/­only.  Considering the above circumstances, it is clear that the wife is having good capacity to earn. According to respondent, she is earning but no any documentary evidence is on record that she is earning. Nothing is on record to prove the income of respondent at this primary stage.  In such circumstances, in my view, at this juncture petitioner is not entitled to get maintenance.  Hence I pass the following order : O R D E R

1.         The application is rejected.

Sd/­20.2.2015

( S.A. Morey )

                 Judge,

Dt: 20^th February, 2015.  Family Court No.7, Mumbai.

Wife to pay 20,000/- maintenance to Husband u/s24 Hindu Marriage Act- Delhi High court

Wife to pay 20,000/- maintenance to Husband u/s24 Hindu Marriage Act- Delhi High court

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CM(M) 169/2009

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)

1.    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 Jainreported 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‟