Destitution prevention or status prevention

IN THE HIGH COURT OF DELHI AT NEW DELHI FAO (OS) 139/2006

16.01.2009

Reserved on : September 18, 2008 Date of Decision: January 16, 2009 RADHIKA NARANG and ORS. ..... Appellants Through: Mr. Y.P. Narula, Sr. Advocate with Mr. Sanjay Ghose, Advocate. Versus

KARUN RAJ NARANG and ANR ..... Respondents Through: Mr. K.T.S. Tulsi, Sr. Advocate with Mr. Shailen Bhatia and Mr. Rohit K. Aggarwal, Advocate.

CORAM:

HON'BLE MR. JUSTICE MUKUL MUDGAL HON'BLE MR. JUSTICE MANMOHAN

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

2. To be referred to the Reporter or not Yes

3. Whether the judgment should be reported in the Digest Yes J U D G M E N T

MUKUL MUDGAL,J.

1. This appeal by the wife and her two minor children who were the plaintiffs in a maintenance claim by her against her husband, Respondent No.1,

has been filed against the judgment dated 16th February, 2006 passed by the

learned Single Judge in suit No. 1225 of 2003 wherein the interlocutory application bearing No. IA No. 6493/2003 seeking pendente lite maintenance was

disposed of and this appeal only questions the quantum of maintenance granted to

her by the learned Single Judge.

2. The brief facts of the case as per the Appellants are that: (a) The Appellant No.1 is the wife and Appellants No. 2, 3 and 4 are the children of Respondent No.1 and the members of the Hindu Joint

Family whose Karta or Manager is the Respondent No.2. (b) As per the details given by the Appellant No. 1 of the descripttion of the matrimonial home of the Appellants, the Respondents have a

house at Dr. G.C. Narang Marg which is in 1.75 acres (Approx.) of land and the

remaining portion of the land is being used primarily for the business purposes

by the Narang Family. The huge house on Dr. G.C. Narang Marg has a swimming

pool (30x10 metres) and a Billiards room with the Billiards table being an

antique Lazarus piece. There is also a state of the art health club with a

Jacuzzi, steam and massage room and gymnasium with the latest work stations and

other equipment. The interiors of the house have unique collectible items each

of which is priceless. There are about 22 servants at every given time in the

said house.

(c) However, on account of extreme cruelty at the hands of the Respondents, the Appellants were thrown out from the matrimonial home at 3-5

Dr. G.C. Narang Marg and were compelled to take shelter in the house of the

mother of the Appellant No.1.

(d) The Appellants thereafter filed a civil suit bearing CS(OS) No. 1225 of 2003 under Section 9 of the Code of Civil Procedure read with

Section 18 and 20 of the Hindu Adoption and Maintenance Act, 1956 (hereinafter

refer to as the Act ) primarily for maintenance and separate residence.

3. The Appellants in suit No. 1225 of 2003 prayed for a decree of maintenance. The Appellant No. 1 is the mother claiming maintenance of 3 minor

children one of whom has become major. Along with the suit, an application

under Section 23 of the Act was filed by the Appellants against the Respondents

praying for interim directions to the Respondents to pay interim maintenance @

Rs. 1.75 lakhs per month and also to make provisions for living of Appellants

and other amenities as per the status of the family they were used to prior to

the institution of the suit.

4. The learned Single Judge by way of the impugned judgment had categorically recorded the following findings:- (a) The Appellant was neither employed nor had any sufficient means of income

from other sources which would suffice to maintain herself and her children.

(b) The conduct of the husband had not been quite fair in all these proceedings. The Respondent No.1 had withheld his income and had not stated

correctly the facts which were within his personal knowledge. A clear attempt

had been made not to disclose his varied interests in various companies.

(c) The immoveable property owned by the family where the husband and wife were

living together and their standard of living in that place was sufficient

indication of the standard of living and status which the parties enjoyed before

the departure of the wife from the matrimonial home. (d) The wife who was being given Rs. 1,25,000/- p.m. as salary plus perks while

working as Director in one of the Company owned by the Respondents was suddenly

deprived of that benefit without any plausible reason. There appeared to be a

calculated attempt on the part of the husband to withhold correct information

from the court.

(e) The Appellant No. 1 was receiving remuneration of Rs. 1.25 lakhs in addition to various perks, car, petrol, etc. prior to the matrimonial dispute,

but after the Appellant No.1 had left the matrimonial home, she was unceremoniously deprived of these benefits and services .

5. The learned Single Judge by his judgment dated 16th February, 2006 granted the interim maintenance to the Appellant in the following terms:-

``(a) The defendant No.1 shall pay to the plaintiff Nos. 1,3 and 4, a sum of Rs.

40,000/- per month. The amount shall be paid by 7th of each succeeding month.

Defendant No.1 shall be liable to pay the said amount from the date of the

application i.e. 20th May, 2003. The arrears would be paid in six equal installments. The first installment shall be paid by 7th March, 2006. (b) The defendant No.1 shall provide to the wife and children, a house minimum

of two bedroom-cum-drawing cum dinning with an extra room in any of the colonies

in South Delhi, the distance of which would not be more than 5 to 7 kms. from

the school of the children in Vasant Vihar where they are studying. (c ) The defendant No.1 shall reimburse all medical expenses of his wife and

children and any amount spent by the mother during her or her children sickness,

shall be paid to them within 15 days from the date such bills are given by

plaintiff No.1 to defendant No.1 or his counsel. (d) The defendant No.1 shall also provide a car to plaintiff No.1 for the

convenience of the wife and the children particularly for going to school etc.

(e) Since it is conceded position that defendant No.1 also gets petrol from the

company, he shall provide petrol expenses to the extent of Rs. 5,000/- per month

to the wife.

(f) During the course of hearing, the learned counsel appearing for the parties

have agreed that the elder brother shall visit his younger brother and sister

in the flat where they are living on every Sunday at 11 a.m. and spend the day

with them at the house of the mother. The father would be at liberty to pick up

the children from the house of the mother on every alternative Saturday and the

grand children would be at liberty to go and meet their grandparents at the

house of the grandparents.

6. The Counsel for the Appellants contended that what is disputed in the

present appeal is only the quantum of maintenance claimed and not fully granted

to the Appellants. The senior counsel for the Appellant Sh. Y.P. Narula contended that the interim maintenance as awarded by the learned Single Judge in

the present case of Rs. 40,000/- p.m. was wholly inadequate keeping in view the

income of the Respondent No.1 and his assets and also the life style to which

both the parties had been used to during the period they were together. The

interim maintenance as provided by the learned Single Judge is much less than

the status and financial capacity of the Respondent No.1. He further gave a

descripttive detail of the income and assets of the Respondent No.1 and his

family, as given in the plaint wherein the lavish life style of Respondent No.1

has been described in detail. The Appellants have also given the details of the

companies owned by the Respondents.

7. It was submitted that the Respondent No.1 has not provided for the proper house and the appropriate car as was ordered to be given to the Appellants by the learned Single Judge. The medical expenses, as per the actual

cost incurred by the Appellants had also not been paid. The Respondent No.1 in

mock compliance of the Single Judge s order sent a Wagon R Car (Maruti) to the

Appellants without a driver which is not as per the status of the Appellant who

had a chauffeur driven Honda Accord before leaving the matrimonial home.

Similarly, the Respondent No.1 had only offered to the Appellants, a one or two

bed room DDA Flat for providing residence to them, contrary to the direction of

the learned Single Judge, which is not as per the status and life style, to

which they had been used to and is also against the interim directions issued by

the learned Single Judge.

8. It was also stated that the Respondent No. 1 throughout the proceedings

was evasive about his income and it was only when he was examined under Order X

of the Code of Civil Procedure did the following factors emerge that:- (a) The company was making profit and he had interest in other company as well.

(b) He was getting a salary of Rs. 1,25,000/- p.m. with other perks from this

company.

(c) In 2002 and 2003 the turnover of the company was Rs. 60 to 70 crores

(approximately).

(d) He was Managing Director of the company and was living with his father when

his wife went away and even today he was living with his father. (e) The property in which they are living measured merely 1.7 acres (approximately).

9. It was also submitted that the very purpose of an interim maintenance

was defeated as for about 3 years save for two payments of Rs. 1 lakh and Rs.

40,000/- to be made to the Appellant as directed on 30.10.2003 and 10.12.2003

the Appellant was without sustenance. The delay was also largely due to the

following applications filed by the Respondent Husband, his father and mother:-

(a) IA No. 8558/03 filed on 19.08.2003 by Respondent No. 1 for seeking further

time to file written statement.

(b) IA No. 8559/03 filed on 19.08.2003 by Respondent No. 2 to strike off

Respondent No. 2.

(c) IA No. 8560/03 filed on 15.09.2003 by Respondent No. 2 for rejection of

plaint qua Respondent No. 2.

(d) IA No. 9381/03 filed on 15.09.2003 by Respondent No. 2 s wife for deletion

of Madhav Narang.

(e) IA No. 11517/03 filed on 04.12.2003 by Respondent No. 2 to direct Appellant

to withdraw affidavit dated 16.09.2003. (f) IA No. 11518/03 filed on 04.12.2003 by Respondent No. 2 for taking Written

Statement on record.

(g) IA No.11516/03 filed on 06.12.2003 by Respondent No. 1 for taking counter on

record.

(h) IA No. 24/04 filed on 17.12.2003 by Respondent No. 2 for modification of

order dated 10.12.2003 to record alleged statement of Appellant s counsel that

he is not seeking interim relief against Respondent No. 2. (i) IA No. 699/04 filed on 03.02.2004 by Respondent No. 1 for transfer of

custody case to High Court.

(j) IA No. 890/04 filed on 10.02.2004 by Respondent No. 2 for hearing IA 24/04

first.

(k) IA No. 1338/04 filed on 27.02.2004 by Respondent No. 1 for one month to pay

Rs. 50,000/-

(l) IA No.4956/04 filed on 04.08.2004 by Respondent No. 2 s wife for substitution of Appellant as guardian of Madhav Narang. (m) IA No. 8039/04 filed on 25.09.2004 by Respondent No. 1 for striking out

pleadings relating to Respondent No. 2. (n) IA No. 981/05 filed on 05.02.2005 by Respondent No. 2 for preparation of

decree in terms of order dated 16.11.2004 (o) IA No. 1308/06 filed on 03.02.2006 by Respondent No. 1/husband for directions to subject the Appellant/wife to certain conditions such as:-

(i) Withdrawal of case

(ii) No liquor, night parties

(iii) Appellant s sister and brother in law cannot be permitted to visit

(iv) Appellant must remain a house wife

10. The learned Senior Counsel for the Respondent Shri K.T.S. Tulsi, on the

other hand submitted that though the Appellants had based their case on the

existence of joint family property in the hands of Respondent No.2, yet all

maintenance is only to be paid by Respondent No.1. If the allegations of the

Appellants are correct that there is joint family property, then maintenance is

to be paid by Respondent No.2 and not Respondent No.1. Relying upon the judgment of the Hon ble Supreme Court in the case of Padmja Sharma vs. Ratan Lal

Sharma AIR 2000 SC 1398, he further submitted that the landed property is not to

be considered for maintenance. He further submitted that the Respondent No.1

does not own the company M/s. Eastern Medikit Ltd. and profit and loss of the

said company is not of the Respondent No.1. Though these pleadings were raised in the appeal but they were not urged before us, presumably in view of

the order dated 16th November, 2004 passed by the Learned Single Judge deleting

Respondent No.2, the father, as a party to the suit. This order dated 16th

November 2004 has been challenged by the Appellant in the companion proceedings

FAO(OS) No. 270/2004 which is being dealt with separately, therefore, we do not

deem it necessary in this appeal to go into the merits of these pleadings and

the status of the erstwhile Respondent No. 2 the father of Respondent No.1.

11. The Counsel for the Respondent No.1 contended that in compliance of the

order passed by the learned Single Judge, the Respondent is making a total

payment of Rs. 72,180/- inclusive of Rs. 40,000/- as monthly amount of maintenance. The Respondent No.1 is presently having a salary of Rs. 1 lakh

and his personal expenses amounts to Rs. 33,950/-. He also makes some payment to

his elder son who is in college and living with his paternal grand-mother, and

therefore, any increase in the grant of maintenance would be harsh on the

Respondent No.1. The Appellant has not taken the house on rent as provided by

the Respondent in spite of repeated requests.

12. The learned Single Judge, in our view, had rightly come to the conclusion that interim maintenance is required to be paid by the Respondent

No.1 to the Appellants. However, inspite of recording his finding that the

Appellant was neither employed nor had sufficient needs to maintain herself and

her children and was suddenly deprived of the benefit without any plausible

reason, the learned Single Judge ought not to have restricted her interim

maintenance only to Rs. 40,000/-. While affirming the other findings of the

learned Single Judge, we find ourselves unable to sustain the quantum and

quality of maintenance granted to the Appellant wife.

13. The term Maintenance as defined in the Advanced Law Lexicon, 3rd Edition 2005 as published by Wadhwa Nagpur includes in all cases, provision for

food, clothing, residence, education and medical attendance and treatment. As

per Bouvier Law Dictionary Maintenance is also the means of subsistence,

supply of necessaries and conveniences; aid, support, assistance; the support

which one person who is bound by law to do so, gives to another for his living.

The Hon ble Supreme Court in the case of Rajesh Burmann Vs. Mitul Chatterjee

(Burman) bearing SLP (C) No. 14183/2007 decided on 4th November, 2008 held as

follows:

24. The term `maintenance' is defined in Black's Law Dictionary, (6th Edn.

pp.953-54) thus; ``The furnishing by one person to another, for his or her

support, of the means of living, or food, clothing, shelter, etc., particularly where the legal relation of the parties is such that one is bound to support the other, as between father and child or husband and

wife'`.

25. Likewise, the word `support' as defined in the said Dictionary (p. 1439) reads as under;

``That which furnishes a livelihood; a source or means of living; subsistence, sustenance, maintenance, or living. In a broad sense the term

includes all such means of living as would enable one to live in the degree of

comfort suitable and becoming to his station of life. It is said to include

anything requisite to housing, feeding, clothing, health, proper recreation, vacation, traveling expense, or other proper cognate purposes; also proper care, nursing and medical attendance in sickness and

suitable burial at death'`.

26. The Court below also considered some of the decisions cited before them. In Pradeep Kumar Kapoor v. Ms. Shailja Kapoor, AIR 1989 Delhi 10, the High Court of

Delhi interpreted `maintenance' and `support' under Section 24 of the Hindu

Marriage Act, 1955 and observed; ``Under Section 24 of the Act, the court has to see if the applicant who may

either be wife or husband has no independent income sufficient for her or his

support and the necessary expenses of the proceeding, and then award expenses of

the proceeding and such sum every month, having regard to the applicant's own

income and the income of the Respondent which may seem to the court to be

reasonable. This section may be contrasted with Section 25 of the Act which

deals with permanent alimony and maintenance. Under Section 25, the court

may order the Respondent to pay to the applicant for her or his maintenance and support, till her or his lifetime, either a lumpsum amount or such monthly or periodical sum, having regard to the respondent's

own income and other property, if any, and the income and other property of the

applicant, the conduct of the parties and other circumstances of the case, which

the court might deem just. It may be noticed that heading of Section 24 of the

Act is ``Maintenance pendente lite and expenses of proceedings'`. The section,

however, does not use the word ``maintenance'`, but, to me, it appears that the

words ``support'` and ``maintenance'` are synonymous, ``Support'` means ``to provide money for a person to live on'`, like ``he supports a

family'` or ``he supports his old mother.'` Maintenance is ``an act of maintaining'`, i.e. to support with money. For example, ``he is too poor to

maintain his family'`. It may be useful at this stage to refer to the definition of ``maintenance'` as given in the Hindu Adoptions and Maintenance Act, 1956 (for short 'the Act of 1956'). Under Section 3 of that

Act, ``maintenance'` includes-(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment ; (ii) in the case of an unmarried daughter also the reasonable expenses of and

incident to her marriage. I would, therefore, think that when we talk of

maintenance and support, the definition of ``maintenance'` as given in the Act of 1956 should be adopted. Section 18 of the Act of 1956 also refers

to maintenance of wife and gives the circumstances under which a Hindu wife is

entitled to live separately from her husband without forfeiting her claim to

maintenance'`.

27. In Atul Sashikant Mude v. Niranjana Atul Mude, AIR 1998 Bombay 264, the Court considered the provisions of the Hindu Adoptions and Maintenance Act, 1956 and held that a Court is empowered to pass interim and ad-interim orders of maintenance. It was held

that the inclusive definition of the `maintenance' under the Act would include food, clothing, residence, education, medical attendance and treatment.

Thus, as found above by the Hon ble Supreme Court in the case of Rajesh Burmann

(supra), that maintenance amounts provide the daily necessities of life, we are

of the view that the urgency in passing an order of maintenance is self-

evident. In the case of Atul Shashikant Mude v. Niranjana Atul Mude, AIR 1998

Bom 264 it was held that the maintenance under Section 18 of the Act is the

support to life having provision for food, clothing, residence, education,

medical attendance and treatment and shelter which when denied, are required

immediately to be granted and cannot await the duration of long trial. The

urgency becomes more pronounced when an order of interim maintenance is sought.

The order of interim maintenance brooks no delay as is evident from the following passage from the judgment of the learned Single Judge of this Court,

Justice Vikramajit Sen in S.S.Bindra vs. Tarvinder Kaur AIR 2004 Delhi 442.

The normal expectation is that an application would be decided within one month

of its being filed. This, however, is an impossibility keeping in perspective

the present strength of Judicial Officers. It would be unfair, therefore, to

restrict a prayer for maintenance in a mindless manner to what has been made not

just several months but years earlier Orders should be passed keeping the

present in perspective and with a view to bringing about justice between the

parties. The Court does not grant exactly what is prayed for, but usually much

less. By that very yardstick it is not precluded to grant more, if the circumstances call for it.

(emphasis supplied)

14. We fully agree with and reiterate the above view that in matrimonial

disputes, the interim maintenance and custody issues deserve the most expeditious disposal. We are further of the view that maintenance and custody

cases must take precedence over matters of property or money claims. The learned

Single Judge in the above judgment had rightly recorded the expectation that

period for award of interim maintenance to be one month from the date of filing

the application. However, in view of the pressure of work on matrimonial courts

due to proliferation of matrimonial disputes and considerable shortage of

judicial manpower, a more realistic time frame has to be prescribed. In our

view the interim maintenance applications in matrimonial disputes ought to be

disposed of with dispatch and certainly should not take in any event more than 1

year at the highest. The very purpose of interim maintenance is defeated if it

takes about 3 years, as in the present case as an interim application for

maintenance filed on 23rd May, 2003 came to be disposed of only on 16th February, 2006. We therefore direct that all the Courts in Delhi, therefore,

must keep the need for urgent disposal of such applications in mind, and ensure

the disposal of the interim maintenance applications within one year from the

date of filing of such applications in matrimonial matters.

15. We, however, must also take into account the spate of interim applications largely filed by the Respondent No.1 husband, his father and mother

and the concealment of the Appellant s income and the disclosures eventually in

the proceedings under Order X of CPC.

16. For computing maintenance the following test have been laid down by the

Hon ble Supreme Court in Jasbir Kaur Sehgal v. District Judge, Dehradun and

Ors., 1997 (7) SCC 7, wherein it has been observed that ``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 circumstances of each

case. Some scope for leverage can, however, be always there. The court has to

consider the status of the parties, their respective needs, the 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.'` (emphasis supplied)

A learned Single Judge of this court, Justice Vikramajit Sen, in the case of Annurita Vohra Vs. Sandeep Vohra, reported in 110 (2004) DLT 546, while

applying the above judgment laid down the following principles of law for

ascertaining the quantum of maintenance:- In other words the court must first arrive at the net disposable income of the

Husband or the dominant earning spouse. If the other spouse is also working

these earnings must be kept in mind. This would constitute the Family Resource

Cake which would then be cut up and distributed amongst the members of the

family. The apportionment of the cake must be in consonance with the financial

requirements of the family members, which is exactly what happens when the

spouses are one homogeneous unit. Ms. Geeta Luthra, learned counsel for the

Respondenthad fervently contended that normally 1/5th of the disposable income

is allowed to the Wife. She has not shown any authority or precedent for this

proposition and the only source or foundation for it may be traceable to Section

36 of the Indian Divorce Act, 1869. This archaic statute mercifully does not

apply to the parties before the Court, and is a vestige of a bygone era where

the wife/woman was considered inferior to the husband as somewhat akin to his

chattels. The law has advanced appreciably, and for the better. In the face of

Legislatures reluctant to bring about any change over fifty years ago the Courts

held that the deserted wife was entitled to an equal division of matrimonial

assets. I would be extremely loath to restrict maintenance to 1/5th of the

Husband's income where this would be insufficient for the Wife to live in a

manner commensurative with her Husband's status or similar to the lifestyle

enjoyed by her before the marital severance. In my view, a satisfactory approach

would be to divide the Family Resource Cake in two portions to the Husband since

he has to incur extra expenses in the course of making his earning, and one

share each to other members.

We are in respectful agreement with the felicitous reasoning of the learned Single Judge and reiterate the same.

17. While dealing with the issue whether interim maintenance could be granted under section 18 of the Act, a learned Single Judge of this Court

Justice D.K. Jain (as he then was) in the case of Neelam Malhotra Vs. Rajinder

Malhotra and Ors., AIR 1994 Delhi 234 observed as follows: That being the position in law, when it is imperative for the husband to

maintain his wife, it does not stand to any reason that during the pendency of

the suit for grant of maintenance, which may take decades to attain finality,

the wife in the first instance be forced to face starvation and then subsequently is granted maintenance from the date of the filing of the suit, if

she is fortunate enough to survive till then. I feel that such a view will be

against the very intent and spirit of section 18 of the Act. On the question of interim maintenance and the assets of joint family, the learned Single Judge held as follows:- (10) The next question which remains to be considered is as to what should be

the amount of interim maintenance particularly when, based on professional

accounts of defendant No.1, it is strenuously urged on his behalf that he does

not have sufficient means to pay any amount to the plaintiff. (11) There can be no precise or settled formulae to assess the quantum of

interim maintenance. Each case depends upon its own facts, in Dev Dutt Singh vs.

Smt. Rajni Gandhi, 1984 Delhi 320, Avadh Behari, J. (as he then was), while

considering the question of grant of maintenance pendente lite under Section 24

of the Hindu Marriage Act, 1955 observed that the Section is not a code of rigid

and inflexible rules, arbitrarily ordained to be blindly obeyed; it does not

enact any mathematical formulae; it gives wide power, flexible and elastic to do

justice in a given case and leaves everything to the Judge's discretion. Both

section 18 of the Act as also sections 24 and 25 of the Hindu Marriage Act,

deal with grant of maintenance allowance and in the absence of any set procedure

for determining maintenance in proceedings under section 18 of the Act, the

aforesaid observations in Dev Dutt Singh's case (supra), in my view, hold good.

(12) .It is urged by Ms. Geeta Mittal, learned counsel for the plaintiff that

coupled with the fact that defendant No. 1 is admittedly having a joint kitchen

with other members of the family, the statement of his account in the books of

account of the said firm leaves little room for doubt that the business of the

said concern is being carried on by the brother of defendant No. I for the

benefit of the entire family, including defendant No. I and, therefore, the

income of the said firm should be taken into account not only to determine the

social status of defendant No.1 but also for fixing the quantum of interim

maintenance.

(emphasis supplied)

We are in respectful agreement with the view taken by the learned Single Judge which holds the importance of interim maintenance and the wide

powers of the matrimonial judge under Section 24 of the Act including the power

to take into account the income of the firm of the husband s family.

18. We find force in the contention of the learned counsel for the Appellant. The Hon ble Supreme Court in the case of Dr. Kulbhushan Kunwar vs.

Raj Kumari AIR 1971 SC 234 approved the principle enunciated in Mt. Ekradeshwari

vs. Homeshwar, AIR 1929 PC 128 that Maintenance depends upon a gathering

together of all the facts of the situation, the income of the parties, a survey

the conditions and necessities, regard being had to the scale and mode of

living, and to the age, habits wants and class of life of the parties. The

Hon ble Supreme Court in the case of Mangat Mal v. Punni Devi (1995) 6 SCC 88

held as follows Maintenance, necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more

or less, to which she was accustomed. The concept of maintenance must, therefore, include provision for food and clothing and the like and take into

account the basic need of a roof over the head. The Hon ble Supreme Court in

the case of Maharani Kesarkunverba v. I.T. Commissioner, AIR 1960 SC 1343, held

that Maintenance must vary according to the position and status of a person.

It does not only mean food and raiment.

19. The Appellant before her departure from her matrimonial home indisputably enjoyed a life of luxury and had a high standard of living. The

Appellant was enjoying the position of the Director in one of the family owned

companies, M/s. Eastern Medikit Ltd. (for short EML ) and was being paid a

salary of Rs. 1,25,000/-. The terms of the remuneration of the Appellant as a

Director of EML are as under: -

I. SALARY

Salary of Rs.1, 25,000/- p.m.

II. PERQUISITIES

In addition to the above, she shall be entitled to the following perquisites.

a. Housing : House Rent Allowance @ Rs.75,000/- (Rupees Seventy Five Thousand Only) per month or in the alternative arrange residential

accommodation for her subject to the amount not exceeding 60% of the salary.

b. Medical Reimbursement : Expenses incurred for self and her family members to a ceiling of one month s salary in a year or three months

salary over a period of three years. c. Leave Travel Concession : For self and family members once in a year incurred in accordance with the rules specified by the company.

PART-C

Car and Telephone : Provision of car with driver and telephone at residence for

official business of the company. III. Commission: Commission @ 2% of the net profits provided further that the aggregate of remuneration payable to her shall not exceed 5% of the net

profits in a financial year.

i. Resolved further that in the event of loss of inadequacy of profits in any financial year the remuneration payable to the Mrs. Radhika

Narang as a whole time director (Marking Division) shall be regulated in

accordance with schedule II of part II of Schedule XIII of the Companies Act,

1956.

ii. The Board of Directors of the company be and is hereby authorized to vary and or modify terms and conditions related to remuneration,

perquisites and yearly increment to be provided to Mrs. Radhika Narang as a

whole time Director (Marketing Division) of the Company, in accordance with the

provisions of the Companies Act, 1956 including schedule XIII for the time being

in force or as amended/modified from time to time by the Central Government.

The agreement may be terminated by either side giving three months notice in

advance.

20. We specifically asked the learned Senior Counsel for the Respondent/husband Sh. K.T.S. Tulsi whether the Appellant had any professional/managerial/financial expertise which led to her being appointed as

a Director and he stated that the Appellant did not possess any of such qualifications. This would prima facie show beyond doubt, that the aforesaid

payment from a company owned by the Respondent No.1 s family, where the Respondent No.1 was the only son and whose only sister was married, was really

the day-to-day maintenance then provided to the Appellant wife, at company

expense. This is demonstrated eloquently by the statement of the learned Senior

Counsel for the Respondent that Appellant No.1 was possessed of no special skill

or qualification. The control of the respoondent s family over the said company Eastern Medikit Ltd. is evident from the fact that his wife the Appellant, without any qualifications could be appointed as a Director with such

monthly remuneration of Rs.1.25 lakhs and handsome perquisites. Thus without

any professional skill, qualification or expertise the Appellant was being paid

a director s fees. Thus, there could be no other reason for this payment except

for meeting the day to day expenses of the Appellant.

21. Moreover, the most important aspect of this case is that the conduct of

the Respondents has been found by the learned Single Judge to be evasive in

these proceedings. The Respondent No. 1, his father and mother had filed

numerous applications in the various proceedings being IA Nos. 8558/03,8559/03,

8560/03, 9381/03,9753/03, 11517/03, 11518/03, 11516/03, 24/04, 699/04, 890/04,

1338/04,4956/04, 8039/04, 981/05, 1308/06 which led to the passage of about 3

years time before the interim maintenance came to be awarded to her.

22. It has also been found by the learned Single Judge that the Respondent

No.1 had withheld his income and had not stated correctly the facts which were

within his personal knowledge. A clear attempt had been made not to disclose

his varied interests in various companies. The Respondent No.1 had withheld the

correct status of his income and assets from the court. These findings of the

learned Single Judge have not been challenged by the Respondent. Thus, the

intention of Respondent No.1 can be clearly seen from the fact that he has shown

his monthly income to be Rs.1 lakh only inspite of the fact that one of the

companies EML in which he is the Managing Director, had an approximate turnover

of about 60 to 70 crores which has been substantially increasing annually.

However, on the other hand he has shown a decline in his salary which clearly

demonstrates that the intention of the Respondent No.1 was to escape the

liability thrust upon him by way of grant of interim maintenance. The High Court

of Calcutta in the case of Jagdish Prasad Tulsan Vs. Smt. Manjula Tulsan, AIR

1975 CAL 64 observed as follows:- Even if it is so, the Appellant did not disclose this property nor any papers

or documents in support of the statement now made before us. The Appellant has

also not produced the income-tax return relating to his income from his properties and assets at the material time. It is, however, contended that

income-tax papers are no longer confidential documents and the Respondent could

have caused those papers to be produced from the authorities concerned. We

think, in the facts and circumstances revealed in this case, it is not for the

Respondent but for the Appellant to produce the relevant papers including the

income-tax assessment of relevant periods to show his income. The Appellant has

also failed to produce, a noticed by the trial Court, his Bank accounts or books

of accounts and other material documents relating to all his properties and

income thereof So, from the conduct of the Appellant it would be perfectly

legitimate to draw an adverse inference against him for his failure to produce

the above papers from his custody. Thus, as observed above, we also reiterate the view that a party which tries to

conceal his income not only deserves to have an adverse inference drawn against

him, which the learned Single Judge did, but also at this interim stage must be

made to pay for it, which in our view the learned Single Judge did not adequately do.

23. Apart from the reasons as stated above it is also to be seen that the

Appellant does not admittedly have any professional qualifications and is not

employed anywhere. The only source of her income from the time the suit and

application for maintenance was filed in the year 2002 is the fixed deposit in

one of the Banks which has also reduced drastically since then. The Respondent

No.1, on the contrary, is the owner of innumerable assets and has been living

his life in the manner when the parties were together.

24. The Hon ble Supreme Court in the case of Komalam Amma Vs. Kumara Pillai

Raghavan Pillai and Ors. in SLP(C) No. 3670/2005 decided on 14th November, 2008

has laid down the following proposition of law with regard to maintenance:

9. Maintenance, as we see it, necessarily must encompass a provision for

residence. Maintenance is given so that the lady can live in the manner, more or

less, to which she was accustomed. The concept of maintenance must, therefore,

include provision for food and clothing and the like and take into account the

basic need of a roof over the head. Provision for residence may be made either

by giving a lump sum in money, or property in lieu thereof. It may also be made

by providing, for the course of the lady`s life, a residence and money for other

necessary expenditure. Where provision is made in this manner, by giving a life

interest in property for the purposes of residence, that provision is made in

lieu of a pre-existing right to maintenance and the Hindu lady acquires far more

than the vestige of title which is deemed sufficient to attract Section 14 (1).

(emphasis supplied)

25. In accordance with the law laid down by the Hon ble Supreme Court in the

abovementioned case of Komalam Amma (supra) and also in accordance with the law

laid down by the Hon ble Supreme Court in the case of Mangat Mal (supra) and

Maharani Kesarkunverba (supra), we are also of the view that the Appellant wife

certainly cannot be put in a position where she and her children are suddenly

deprived of the lifestyle and comfort they were used to merely because of the

separation from the husband. The payment of maintenance to an estranged spouse

provides means for sustenance so as to ensure that so far as possible, the same

living standards, obtaining prior to the breakup of spouses, are retained. Even

the interim maintenance order, in the present case took about 3 years to be

pronounced, aided in no small measure by the repeated filing of various applications by Respondent No.1, his father and his mother. The wife claiming

interim maintenance can therefore not be put to a severely disadvantaged

position of a drastic reduction in the quality of her life on the premise that

she would get the appropriate maintenance at the final award of maintenance/alimony. The existence and survival of an estranged wife seeking

interim maintenance cannot be treated akin to a suit for rendition of accounts

on recovery of money, where at the final hearing of the suit accounts can be

adjusted and parties re-compensated by costs and interest. A human life is far

more precious than a ledger, particularly when lives of children living with the

wife are also involved. It would be no solace to the wife to be given adequate

maintenance three years later, as about six valuable years of her life and

formative years of her children would have passed then under a stage of deprivation of the appropriate lifestyle. We have taken the time span of six

years after taking into account the period of 3 years occasioned by a spate of

interim applications mostly by the Respondent and his father which led to a

three year delay in the award of interim maintenance.

26. Thus, after considering the above position of law, it is evident that

the following principles emerge from the above judgments:- a. Maintenance depends upon the summation of all the facts of the situation [as laid down in Dr. Kulbhushan Kunwar vs. Raj Kumari AIR 1971 SC

234].

b. For granting maintenance, the scale and mode of living, the age, habits, wants and class of the life of the parties has to be regarded [as laid

down in Dr. Kulbhushan Kunwar vs. Raj Kumari (supra)]. c. Maintenance being such that the wife could live in a reasonable comfort; considering her status and mode of life which she was used to while

living with her husband [as laid down in Jasbir Kaur Sehgal vs. District Judge,

Dehradun and Ors. 1997 (7) SCC 7 ] d. During the pendency of the suit for maintenance, which may take a considerable time to attain finality, the wife cannot be forced to face starvation till she is subsequently granted maintenance from the date of the

filing of the suit [as laid down in Neelam Malhotra vs. Rajinder Malhotra and

Ors. AIR 1994 Delhi 234 ].

e. Maintenance must necessarily encompass a provision for residence. Maintnenace is given so that the lady can live in the manner, more or less, to

which she was accustomed. [as laid down in Komalam Amma Vs. Kumara Pillai

Raghavan Pillai and Ors. SLP (C) No. 3670/2005 decided on 14th November, 2008]

f. Maintenance, necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less, to

which she was accustomed. The concept of maintenance must, therefore, include

provision for food and clothing and the like and take into account the basic

need of a roof over the head. [as laid down in Mangat Mal v. Punni Devi (1995) 6

SCC 88]

g. Maintenance must vary according to the position and status of a person. It does not only mean food and raiment. [as laid down in Maharani

Kesarkunverba v. I.T. Commissioner, AIR 1960 SC 1343]

27. The purpose of providing maintenance, in our view, is thus meant to secure to a wife/spouse claiming maintenance, as far as possible, the status and

facilities enjoyed by her prior to her separation from her husband when her

maintenance claim is finally determined. The determination of maintenance not

being governed by any rigid or inflexible rule gives wide power and discretion

to the Court to do justice.

28. Thus, keeping in view the facts and circumstances of the case coupled

with the conduct of the Respondent No.1, in concealing the true facts from the

court, we are of the view that award of only Rs.40, 000/- per month by the

learned Single Judge was wholly inadequate after taking into account the social

and financial status of the Respondent No.1 and his family, because the fact

that he was the only son whose share in the various family properties was not

denied. A query to the father of the Respondent No. 1 i.e. erstwhile Respondent No.2 s counsel in FAO(OS) No. 420/2007 failed to evoke a response as

to the extent of the share of the Appellant in the joint family property.

29. Thus, in light of the above principles of law and the factual matrix of

this appeal we hold that the Appellant would be entitled to the following

interim maintenance in addition/modification of the maintenance granted by the

learned Single Judge:

a. In substitution of the sum of Rs.40, 000/- per month awarded by the learned Single Judge, to the Appellant in respect of a claim of

Rs.1.75 lakhs per month made by her, she would be entitled to interim maintenance at Rs.1.25 lakhs per month from the date of the application and all

arrears as per this order are required to be paid on or before 31st March, 2009.

b. We direct the Respondent to provide for the use of the Appellant, a new car of Honda City make and provide the same facilities of

petrol and driver provided along with the car which were provided by the company

M/s Eastern Medikit Ltd. as a director to the appellant. c. We also affirm and reiterate the directions of the learned Single Judge that the Respondent is to provide to the Appellant a house minimum

of two bed rooms-cum-drawing cum dining with an extra room in any of the

colonies in South Delhi, the distance of which would not be more than 5 to 7 kms

from the school of the children. In our view, the offer of a DDA Flat by the

Respondent to the Appellant does not in any way comply with the directions of

the learned Single Judge. We, therefore, direct that the order of the learned

Single Judge qua the house, which we affirm, shall be complied within 60 days

from the date of pronouncement of this judgment. d. The rest of the directions of the learned Single Judge such as the reimbursement of medical expenses etc. shall be followed as provided for

by the learned Single Judge.

30. There is no doubt that the courts have to be cautious and ascertain the

true facts and circumstances of a given case in granting maintenance in case of

matrimonial dispute. However, in cases where the income of the husband is

concealed and it is difficult to ascertain the correct current position, the

court may fix the amount of maintenance based on factors which were in existence

before the souring of the relation as we have done in the present case.

31. Consequently, the appeal is partly allowed in the above terms with costs

of Rs.30, 000/- payable on or before 30th January, 2009. MUKUL MUDGAL

(Judge)

MANMOHAN

(Judge)

January 16, 2009