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PETITIONER: SMT. JASBIR KAUR SEHGAL

       Vs.

RESPONDENT: THE DISTRICT JUDGE DEHRADUN & ORS.

DATE OF JUDGMENT:       27/08/1997

BENCH: SUJATA V. MANOHAR, D. P. WADHWA

ACT:

HEADNOTE:

JUDGMENT: Present :               Hon’ble Mrs. Justice Sujata V. Manohar               Hon’ble Mr. Justice D.P. Wadhwa Ms. Shalu Sharma, Rajesh K. Sharma, Rakesh K. Sharma, Advs., for the appellant. P.P. Tripathi,  Arvind Varma,  Advs. for  K.L. Mehta  & Co., Advs. for the Respondents.                       J U D G M E N T The following Judgment of the Court was delivered :                       J U D G M E N T D.P. Wadhwa, J.      Leave granted.      This  is  wife’s  appeal  against  the  judgment  dated October  14,  1996  of  the  High  Court  of  Judicature  at Allahabad. She  is aggrieved  by the impugned judgment under which  she  was  awarded  maintenance  pendente  lite  under Section 24  of the  Hindu Marriage Act, 1955 (for short ‘the Act’) at the rate of Rs. 1500/- per month. On an application filed by  the wife  in the  trial court  in  proceeding  for divorce initiated  by her  husband, respondent  No.3 herein, she was  awarded Rs.  2,500/- (Rupees  two thousand and five hundred only)  as expenses  of  litigation  and  maintenance pendente lite  at the  rate of  Rs. 1000/-  per  month.  Her revision before  the District  Judge Dehradun  against  this order was  dismissed. She  further filed writ petition under Article 227  of the Constitution of India in the High Court. By  the  impugned  judgment  the  High  Court  enhanced  the maintenance to Rs. 1500/- per month.      Respondent 1  and 2 in this appeal are respectively the District Judge,  Dehradun and  the  Additional  Civil  Judge (IInd), Dehradun  who are described as proforma respondents. It is  not proper  or even  justified on  the  part  of  the appellant  to   implead  the   courts  as   respondents  and respondents 1  and 2  are, therefore,  struck off  from  the record of this appeal.      Parties were married on October 2, 1963. The husband at that time was an army officer. He retired and Lt. Colonel on August 10, 1986. On September 28, 1989 he filed the petition for divorce  against his wife under Section 13 of the Act on the alleged grounds of cruelty and desertion. He stated that

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within two   years of the marriage the wife started creating problem for  him and  she persisted  in her  behaviour right till the  year 1989.  In this  span of  26  years  in  their married life, they have become the parents of four children, two sons  and two daughters. Eldest daughter who is 34 years old and  unmarried is  living with  her mother who maintains her. Second  child is  so who is working with Mukul Overseas Pvt. Ltd. on a monthly salary of Rs. 7500/- per month and is living in  a house in Safdarjung Enclave in New Delhi. Third child is a daughter aged 26 years. She is also unmarried and unemployed and  is living with the father. Fourth child is a son of  20 years  of age,  he is  unemployed and had studied upto 11th  class. Husband says that being head of the family he is  to maintain  two sons  and a  daughter  as  they  are dependent on him. His claim is that he is presently having a meagre salary  of Rs.  5000/- per  month and  is employed as consultant/adviser with  M/s.  Mukul  International  Private Limited.  Both   Mukul   Overseas   (P)   Ltd.   and   Mukul International (P) Ltd. belong to same group.      After  retirement  from  the  army,  respondent-husband joined the  Oil and  Natural  Gas  Commission  (ONGC)  as  a Director and  was posted  at Dehradun.  He retired from that post on  August 21,  1995. Thereafter  from January  1, 1996 husband is  working with  M/s. Mukul International Pvt. Ltd. as aforesaid.  After  deduction  of  income-tax  at  source, husband says  he is  getting an  amount of  Rs.  4700/-  per month. Husband admits that he has a house in NOIDA which was on rent  with the  army and  lease was  terminated by letter dated January 29, 1996 from the Ministry of Defence. He says repairs are  being carried  on in the house and presently he is living  with her eldest son in his house. He further says he is not getting any pension as on his permanent absorption in ONGC,  he had  opted to receive lumpsum amount in lieu of pension and  prorata gratuity  amount in lieu of pension and prorata gratuity  amounting to  Rs. 2,60,456/-.  In addition the husband  also received  an amount  of  Rs.  55,775/-  on account  of   D.C.R.  Gty.   Husband  has   also  filed  his computation of taxable income for the assessment years 1992- 93, 1995-96  and  1996-97.  He  has  though  not  filed  any assessment order. Since he retired from ONGC in August, 1995 it would  be appropriate  to see  his computation of taxable income for  the year ending March 31, 1995. His gross salary income in  Rs. 1,88,281/-  and after deduction of House Rent Allowance it  comes  to  Rs.  1,78,614.  Income  from  house property he  say is  Rs. 22716/-,  interest  income  is  Rs. 3179/-. Total  of these three items would be Rs. 2,04,509/-. Then there  are claims of standard deduction, repairs in the house and  tax rebate  on saving  amounting to  Rs. 68,922/- which include  payment on  account of LIC, PF, PPF, MEP, NSC and general  insurance. The  amount of  tax payable comes to Rs. 35716/-  on a  taxable income of Rs. 1,81,790/-. For the assessment year  1996-97 (year ending on March 31, 1996) the salary  income   shown  is  1,18,151/-,  income  from  house property is  Rs. 18, 930/- and after standard deduction, and other deduction and the rebate the income tax payable is Rs. 18, 464/- on the net income of Rs. 1,31,200/-.      Wife says  that the  husband has not given true account of his assets and income and has rather suppressed the same. Though the  wife has  not been  able to  give  any  specific evidence to  support her  contention but  circumstance  show that the  husband has not given true state of affairs of his income. He  has pleaded  that both  his wife  and his eldest daughter are  earning Rs. 10,000/- per month but there is no basis for such an allegation. The fact remains that the wife has no  source of  income and  she is  also maintaining  her

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eldest unmarried  daughter.  Under  the  Hindu  Adoptions  & Maintenance Act,  1956 it  is the  obligation of a person to maintain her  unmarried    daughter  if  she  is  unable  to maintain herself.  In this case since the wife has no income of her  own, it is the obligation of the husband to maintain her and  her two  unmarried daughters  one of whom is living with wife  and one  with him. Section 24 of the Act no doubt talks of  maintenance of  wife during  the pendency  of  the proceedings but this section, in our view, cannot be read in isolation and  cannot be  given restricted  meaning to  hold that it  is maintenance  of the  wife alone and no one else. Since wife is maintaining the eldest unmarried daughter, her right to claim maintenance would include her own maintenance and that  of her  daughter. This fact has to be kept in view while fixing  the maintenance pendente lite for the wife. We are aware  of the  provisions  of  Section  26  of  the  Act providing for  custody of  minor children, their maintenance and education but that section operates in its own field.      Husband has  filed this counter affidavit in the appeal before us  and on  our direction both the parties have filed additional affidavits.  On one date when this appeal came up for hearing  we were  told that  the husband  had left  that morning itself  for Canada  for further  treatment after his bypass surgery  in India  and that his expenses visiting the Canada and  as well  as the expenses for the treatment there were being  met by  his friend. In his affidavit husband has stated that  his friend  Sontosh Singh  for his treatment in Canada paid  his fare.  He is,  however,  silent  about  the expense if  any met  by Sontosh  Singh for  his treatment in Canada. A copy of the statutory declaration of Sontosh Singh which is  dated March  21, 1997 has also been filed. In this Sontosh Singh  does say  that he  has undertaken to bear the cost of  passage and  maintenance of  respondent during  his stay in  Canada and  North America. It is a matter of common knowledge that  medical treatment  in Canada  is high and an ordinary person  cannot afford the expenses which are met by taking  medical  insurance.  As  to  what  expenses  husband incurred for  his bypass  surgery  in  India  has  not  been disclosed. On  our query  as to  how much  foreign  exchange husband obtained  while going  to Canada, it was stated that Dollar U.S.  1,350 were  obtained at  a cost  of  about  Rs. 50,000/-. From  where all these monies came from we are left in dark. Husband had not filed any certificate of his salary from his present employer though the wife has contended that both  the   firms  Mukul   Overseas  Pvt.   Ltd  and   Mukul International Pvt.  Ltd. are  owned by  the husband  himself which fact  husband had  denied. Though we are not concerned with the income of his son which is stated to be Rs. 7,500/- per month,  it would  have been  better if  the husband  had given complete  details as to the perquisites enjoyed by his son, the  rent he  is paying for his rented accommodation at Safdarjung Enclave  and the  like. Claim of the husband that though his  house in  NOIDA fell vacant in January, 1996, it has neither  been further let nor the husband himself living there because  of certain  repairs and on that account he is residing with  his son does not appeal to us. It does appear to us  from the  affidavit of  the husband  that it conceals more than  what it  tells of  his income  and other  assets. Attempt has  been made   to conceal his true income and that leads us  to draw   an adverse inference against the husband about his  income that  it is  much more  than what is being disclosed to  us. The  claim of  the husband  that  from  an income of  Rs. 4,750/- per month which is getting from Mukul International Pvt.  Ltd. he has to maintain himself, his two sons and daughter is absorb particularly when the eldest son

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is earning  more than  the husband and it is the husband who is living  with him.  Husband has also not disclosed retrial benefits if  any from  the ONGC  and the amount of provident fund he  obtained from  there. Husband  has interest  income from Unit  Trust of  India and  also from  the fixed deposit receipt but  again he  has not disclosed the number of units he is  holding and  the amount  of the fixed deposits in his name, from  all these we have to hold that the annual income of the  respondent-husband is  even on modest estimate to be Rs. 2,40,000/- annually which would come to Rs. 20,000/- per month. 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.      Wife has  no fixed  abode of  residence She  say she is living in  Gurudwara with her eldest daughter for safety. On the other  hand husband has sufficient income and a house to him. Wife  has not  claimed and  litigation expenses in this appeal. She  is aggrieved  only because of the paltry amount of maintenance  fixed by  the court.  No set  formula can be laid for  fixing the  amount of maintenance. It has, in 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  those; he  is obliged  under  the  law  and statutory but  involuntary payments or deductions. 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.      The question then arises as to from which date the wife would  be   entitled  to   claim  the   enhanced  amount  of maintenance pendente  lite. If  wife has no source of income it is the obligation of the husband to maintain her and also children of  the marriage  on the  basis  of  the  provision contained in  the Hindu  Adoption and Maintenance Act, 1956. Her right to claim maintenance fructifies on the date of the filing of  the petition  for divorce  under the  Act. Having thus fixed  the date  as the  filing  of  the  petition  for divorce it  is not  always that  the court  has to grant the maintenance from  that date. The court has discretion in the matter as to from which date maintenance under Section 24 of the Act should be granted. The discretion of the court would depend upon  multiple circumstance  which are  to be kept in view. These  could be the time taken to serve the respondent in the  petition the date of filing of the application under Section 241  of the  Act; conduct  of  the  parties  in  the proceedings; averments made in the application and the reply there to; the tendency of the wife to inflate the income out of all  proportion and  that of  the husband to suppress the same; and  the like.  There has to be honesty of purpose for both the parties which unfortunately we find lacking in this case. We  are therefore  of the opinion that ends of justice would be  met if we direct that maintenance pendente lite as fixed by  this judgment  to be  payable  from  the  date  of impugned order  of the High Court which is October 16, 1996. We order  accordingly. The  impugned judgment  of  the  High

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Court shall  stand modified  to that  extent. All arrears of maintenance shall be paid within a period of two months from today and then regularly every month.      The appeal  is allowed  with  costs.  Counsel  fee  Rs. 2,500/-.