PWTAM Ashok Sadaphule v. Ilima Chugh

9. The husband filed an addit said company stands dissolved on inc. (incorporated in USA), (vii) Pritam (incorporated in India), (viii) IT Quest firm Pritam Software, (ix) IT Quest m). The wife also produced copies of of all companies of the husband except at • t documents onal affidavit dated 04.01.2012 (reference page 1023, Part III ofthe fie) annexing the electronic official copy of register of information datjd 28.12.2011 with regard to UK property in the name of petitioner in the official record there and expressed that she might be earning substantial rental income from the property, the MAT.APP. [RC.) 40/2013 Page 6 official worth of which is $2,46,333 as on 06.07.2007. He also furnished details of four banlc accounts of the wife of which he knew during their cohabitation. In his additional affidavit dated 14.12.2012, the husband alleged that the current rental value of the UK property in the name of the wife is $1250 per month and she is saving/earning $350 per month (INR 27,000) after settlement of repayment of mortgage with interest as in the mortgage statement dated 01.01.2009. The mortgage repayment payable per month is only $860. The husband also claimed that wife was earning $2500 per month as a director, which was credited in her bank account by company IT Quest and he relied upon the true copies of bank statements of the petitioner in this regard. These related to the period January, February, and March, 2009. He denied having started or being a Director of IT.,, Quest Consultant UK Limited as claimed by the wife and affirmed;. i- '; -1 ^. • •;.: that he had taken legal steps to counter the corporate fraud. He claims •';: • that IT Consultants Pvt. Ltd., in India is incurring losses, which in the:;. last year was ^9,12,962/-. He also relies on copies of the latest income tax returns. As regards Pritam Software Solutions Private (^:;.. Ltd., the husband claimed that it was closed by a Board resolution dated 13.09.2011. The husband lastly urged thatthe wife was securing £2000 towards unemployment benefits.

10. The husband filed, on 28.03.2012 yet another affidavit dated 21.03.2012 sworn in a UK where he gave the financial health of the companies in which he was involved as follows: MAT. APP. (RC] 40/2013 Page 7 V

(i) IT Quest Limited (Company No. 07715703) incorporated in

UK on 25.07.2011 - not doing any business since inception so balance sheet account not available and there is no remuneration Director.

(ii) IT Quest Consultant UK Ltd., (Company No. 5210706):

Petitioner was alsp a Director till August 2007 balance sheet with remuneration of Director for ast three years attached at Annexure R[2] (reference Page 1093 to 115 )/ Part II of the file) respondent claims that company is cuiTently incurring loss of $7540/-. (iii). IT Quest Consultants Company is not doing an 25.07.2011, so no remunerat and dormant declaration has Annexure R[3] (reference page UK Limited (Company No.07715757): ' business since its incorporation on on to the respondent,as a Director paid been filed in UK office tax) which is at 1157 part II ofthe file)

(iv) Etude Ltd., (Compary No.07823736): Company not doing business since incorporatior, in LIK on 25.10.2011 and there is no remuneration to respondent as Director and even company has no bank accdiintarit Respondent claimed that he floated his company to help his friend. (v)' "Tquery Consult Ltd., ( 22.2.2011 and closed on 22. There is no balance sheet a IT Quest Consultant UK I respondent got closed by wr I^ompany No'. 07539011) incorporated on.1.2011 and there being no such business, bailable. As per the respondent originally.td., was formed by fraud people which iting to the registrars of Companies of UK

(vi) IT Quest Inc Incorporation in USA) account of 2008 and 2011 only are available and filed a Annexure R[4] (reference page 1159 to 1213 pail ril of the file) Company has no employees, no business no remuneration for Directors. It is in loss of $ 2000 in 2010 and files of 2009 allegedly espondent's file.' deleted by petitioner from i MAT.APP. [F.C.] 40/2013 Page 8 /I

(vii) Pritam Software Solutions Pvt. Ltd, incorporated in 2009 in

India. No remuneration is provided for Directors and balance sheet as on 31.03.2010 is a page 1131 part III of the file. There is Board of Directors resolution dated 13.09.2011 to wound up the company. Year Turnover Net Profit/ Loss Aug. 2008 - $91671 $4216 Aug. 2009 Aug. 2009 127805 4580 Aug. 2010 Aug. 2010 116790 7540 Aug. 2011 Director Remuneration $18500

11. During the course of arguments the wife moved an application under Section 151, Code of Civil Procedure ("CPC") seeking to bring on..irecord certain facts and additional documents. She inter alia averred that the UK property is under threat and re-possession as she is unable to pay. the legal dues to her lenders in UK who wrote her that due to non-payment of dues banlc shall initiate appropriate legal proceedings (sumrhons for possession) against her. She has also annexed relevant documents of sale of Nehru Place property for ^19,24,000/-, and has also placed on record copy of order of this Court in CRP 148/2011 (date of decision: 22.04.2013) by which the revision petition of the husband challenging the order dated 22.09.2011 of Trial court was dismissed. The Trial court had dismissed the application of the respondent/husband under Section 13, CPC by an order dated 22.09.2011. MAT.APP. (F.C.) 40/201.[3] Page 9 'j. s i

12. ly Trial Court observations and onclusions. The Family court was of opinion that both parties did not on their own reveal their coiTect financial status which was revealed after they were confronted about their financial position. The Court noticed that even to have only £ 1000 per month as easure trips and he though the husband claimec income, he had travelled on p "failed to explain ho Australia, Switzerland has also extendedfmai v he could travel extensively to USA, etc. with meager income. Admittedly he icial help to hisfriend byfloating Etude Ltd., Co., as mentioned at para JO (iv) above. From the allegations and counter allegations Mnth regard to veracity of document fded by both the parties to convince that their respective version is trustworthy and rival version is wrong since at this stage court has only to take a primafacie view and is not a adjudge thi respective documents case of the parties on the basis of as it is conducting a trial as their respective relied documents have been challenged by each other, I am proceedi backdrop of given provision oflaw petiti a number of comp losses/closed. Even Petitioner has claim 'hg to dispose of the application in the facts and circumstances and relevant 'mer is admittedly living in Delhi. She has not given the details of her probable expenses under different heads like food, clothing shelter medicines and other miscellaneous expenses etc., she herself is a professional and had beenearning handsomely in UK as per her, there is nojob opportunities in India in her field of expertise as such she is unable to secure any job. On the other hand respondent has portrayed a grim picture of his financial position which appears to be not true when viewed against his living standard. Both the parties have also not placed on record their bank statements ofdifferent bank, accounts. In such circumstances a guess work is required to be made. Respondent has/hadfloated:anies which he claims are turning in floating of company requires expenses. \ed income of respondent as 30, 000 per MAT.APF. [F.C.) 40/201.S Page 10 month which has been denied by its respondent. The claim of respondents income being 1000 per month is also not believable. On guess work income of the respondent is construed to be not less than 5000 per month whereas income ofpetitioner is construed as nil in India as on date.

17. Keeping in view the expenses of respondent in UK and standard of living ofparties in UK and the competency and capability ofpetitioner to earn in India and of the fact that petitioner ispresently living in India and has to spend in Rupee in my considered view ofRs. 75000/-per month is sufficient as pendent lite maintenance w.e.f case of application i.e. 05.02.2011 it is ordered accordingly Rs.50,000/- is awarded as litigation expenses. The arrear be cleared within six months and the monthly payment be made by 10''^ ofevery consecutive months."

13. It is urged on behalf of the appellant that the Trial Court fell into error in holding that the husband did not earn more than £1000 per month. It is argued that the affidavit and the notary's certificate conclusively /,•,established that the financial health ofthe United Kingdom companies was precarious. In these circumstances, it is argued that the Court should not have disbelieved the documents and concluded that the husband was earning more than £1000 per month. Learned counsel also relied upon the income tax and balance sheet of profit and loss statements for the years, 2009-10, 2010-11 and 2011-2012 in respect ofthe Indian companies in which the husband had controlling interest, i.e., I.T. Quest Consultants Ltd., Pritam Associates, Pritam Software Solutions Pvt. Ltd and the oversees company, i.e., I.T. Quest Consultants (UK) Ltd. and I.T. Quest Inc. It was submitted that upon an overall reading and consideration of these documents, there cannot be any doubt as to whether the husband possesses substantial means. MAT. APP. (RC.]40/2013. Page 11

14.

15.

16. )\1 The answer is clearly in the negative. All the business concerns in question are incurring losses. In view of these facts, the findings rendered in the impugned c per month as maintenance tc It was urged next that the n^ by the Illford County Court rder and the directions to pay ?75,000/the respondent/wife is clearly erroneous, arriage between the parties was dissolved n UK on 9.5.20.11. This fact was brought to the notice of the concerned Court hearing the proceedings. However, that was not give that the. respondent/wife's divorce decree and the flirt become final precluded her 24 of the Hindu Marriage A no subsisting marriage be application. It was next argued that the respondent/wife suppressed several material facts which stopped her from claiming any amount towards maintenance. In this regW, it was urged that the wife was the iDwance towards' unemployment from the hermore, the. respondent/wife owned Inland of considerable value. These facts:he disposed of a commercial flat in Delhi this in the Section 24 application, clearly any relief liat the Trial Court misdirected itself into belief that the husband was leading a luxurious and lavish lifestyle' and had access to considerable wealth and income. It was submitted recipient of a monthly all U.K. Government. Furt immovable property in En and the circumstance that and did not mention about •debarred her from claiming Learned counsel argued ti 1 diie weight. Learned counsel submitted cnowledge of these proceedings and the ler circumstance that the said decree has from claiming any amount under Section ct. This was for the reason that there was;ween the. parties as on the date of the MAT.APP. (F.C.] 40/2013 Page 12 -i.-J ( ) 1^ that each of the materials placed on the record established that contrary to the wife's assertions, the husband was barely able to manage his business. In the absence of any material, therefore, the Trial Court proceeded to direct payment of considerable maintenance - to the tune of ^75,000/- per month - and accordingly, this clearly requires to be set aside.

17. Counsel for the wife, on the other hand, contended that the Family Court correctly appreciated the law applicable and arrived at the right conclusions in the facts and circumstances of the case. It was submitted that there was no suppression of facts; the wife disclosed all her assets, the nature of encumbrances, as well as the amount received for sale of the Nehru Place property. It was submitted that the argument regarding the wife being recipient of unemployment allowance from the UK Government is baseless and the appellant did. •. not place any material on the record.

18. It was. submitted that a fair reading,of the documents and materials clearly reveals that the husband had several sources of income, and was attempting to suppress his real earnings^ in order to avoid paying proper maintenance. It was submitted in this context that the submission that the UK companies in which the husband had control •were financially unsound or were incurring losses cannot be believed. It was argued that the husband frequently travels internationally; he not only controls businesses in UK, but also iii India. A close scrutiny of the income and expenditure statement of each of them reveal that considerable expenses are being borne by those enterprises, which betrays the submission ofthe appellant's lack of resources. MAT.APP. [F.C.] 40/2013 Page 13, • (lu -

19. In the present case, the couDle met each other,in the UK and later got married in New Delhi on 04.03.2005. They then started living in the UK thereafter. The wife secured permanent resident status in that country in July, 2005 and also started to work there. The wife complained of domestic v after investigations, no husband. In the meanwh property, a flat at Romfo complaints against.the h circumstances, the husbar divorce in the Ilford Count; been served. Later, the wi olence against the husband in 2009, but proceedings were initiated against the ile, the wife had acquired immovable rd. The wife apparently lodged criminal usband in Mumbai in 2010. In these d claims to have filed proceedings for Court in which the wife is alleged to have fe initiated a suit for permanent injunction (OS 2610/2010) for permanent injunction against the husband from pursuing with the UK div Section 13(ia) of the Hind ' on the ground of cruelty ag

20. This Court first proposes orce case. She later filed a petition under Marriage Act for dissolution of marriage, airist the husband, in 2011. 0 deal with a preliminary argument made on behalf of the appellant, i.e. that the Ilford County divorce proceedings resulted in a binding upon the parties Counsel stressed upon th Procedure and stated that decree nisi on 9"' May, 2011 which is and that this court should recognize it. 2 provision in Section 13, Code of Civil t embodies the principle of res judicata as regards final determinations and findings rendered by foreign courts, which bind and enjoin pa ties from agitating the same cause before Indian Courts. This courtholds the argument to be unpersuasive. This MAT.APP. [F.C.] 40/2013 Page 14 '7 ground, it may be noticed, was urged before the Family Court in the pending divorce proceedings, by way of an application on behalf of the husband, who sought for dropping of the proceedings in the petition, urgingthat Section 13 and the principle underlying it, should preclude the court from entertaining the divorce petition. That objection, in the form of an application, was rejected by the Family Court's judgment dated 22.09.2011. The husband instituted a revision petition (CRP 148/2011) against that order. A learned single judge of this Court by reasoned order of 22.04.2013 rejected the revision petition. The matter does not stop here; the husband unsuccessfially carried the order in appeal by special leave to the Supreme Court (SLP 25871/2013) which was dismissed by the Supreme Court on 26.08.2013. There is no change in the circumstances, the facts or the ' legal position forthis Court to revisit the same plea at another stage of • • the 'same proceedings. The argument is not only misplaced, but even - amounts to willful abuse of the judicial process. The court notices in this context, that the husband had not placed on record the various orders of the Family Court and of this court on the question; it was only in the course of the proceedings, after the attention was drawn to Counsel that copies of those orders were brought on record. The intention was clear, and an attempt to mislead the court without disclosing the previous orders was made.

21. On the merits, this court notices that though the wife's affidavit did not conform to the format required to be followed injudgments ofthis Court, it contained essential particulars with regard to her having MAT. APP. [F.C.) 40/2013 Page 15 f. taken a house on a 99. years lease in London.in 2007 for £2,48,000/funded by mortgage of the property to the extent of 52% from Leeds Building Society and the Metropolitan House Ownerf loan amount in installment. £2,47,659.40 which has-res interest. She holds accounts balance 48% through a loan from hip. She could repay £24,807.98 of the till September 2009 and defaulted the alted in escalated liabilities and punitive in two banks-i.e with HSBC Bank, UK •.and the, other, ICICI Bank tJK. The total outstanding to her credit is about £ 1000/- in the two ' maintain any vehicle car or about having disposed of a for herself He also alleged that she is actually a recipi UK Government. Howev allegations. Furthermore, tl ccounts combined. She does not own or scooter. She also revealed in her affidavit:ommercial flat at Nehru Place for Rs. 19 odd lakhs,, and having invested part of it in securities. The husband alleged that the wife is possessed of means and is capable of earning:hatshe indulged in suppression of facts in ent of unemployment allowance from the iv, there is no substantiation of these lat the wife is not employed presently has not been disputed by the husband.

22. As far as the assessment bi' evaluation of the husband's income goes, a look at the Trial Court's impugned judgment v^'ould reveal that all the materials and circumstances were duly taken into consideration. Undoubtedly, the husbanc's companies have been reporting losses. However, the income tax returns in respect of IT Quest Consultants, • (Pvt) Ltd show that for.2C 10-2011, the software consultancy income was Rupees 4.83 laldis; the Director's remuneration paid •was MAT.APP. [RC.] 40/2013 Page 16 ^3,55,000/-. IT Quest Consultants (UK) Ltd, for the same period showed that Director's earnings were UK £ 35,000/- and sundry expenses were £87,000/-. The income and expenditure statements of other concerns, such as Pritam Software, the US company, consistently show that the husband reported losses. However, at the same time, the husband is able to sustain himself and live abroad; he even carries on business in three different countries, by incurring some expenditure. In these circumstances, the Court would not be remiss in assuming that he is less the forthcoming in his affidavits and responses about income earning abilities as well as truly accounting the resources he owns or has access to. The Family Court, in these circumstances held that the wife was entitled to monthly maintenance of?75,000/-.

23. In Jasbir Kaiir Sehgal (Smt.) v. District Judge, Dehradun & Ors., (1997) 7 see 484, the Supreme Court obsei"ved as follows:

MAT. APP. [RC.] 40/2013 Page 17 11... the parties in the application and the inflate the income oui to suppress the same; proceedings; averments made in the eply thereto; the tendency of the wife to ofall proportion and that ofthe husband and the like..." '

24. Courts have also recognized that income tax returns are inconclusive laintenance in matrimonial proceedings.

V. Kanak Vinod Mehta, AIR 1999 Bom

Vlahavir Prashad Jain AIR 1987 Del 43). 1 the husband has reported losses in his le time, the director's report, and income and expenditure reveal that Director's vi^n in the companies in which he has a iness in most of these concerns appears to lant has not filed for bankruptcy or:o all these factors, the Court is of opiniop that the limited role it has t^play in an appeal over the determination of maintenance pendente lite amounts in this instance cannot be termed as unreasonable or untenable. in determining award of r (see Vinod Diderai Mehta ]20). In Smt. Renu Jain v. j In tlie present case, thougl business venture, at the sar tax statement of income remuneration has been she controlhng interest. The bu be proceeding; the appe insolvency. Having regard ?5. In view of the above disc merit. It is accordingly disn jssion, it is held that the appeal lacks in lissed without any order on costs.

DECEMBER 10, 2013 MAT. APP. (RC.J 40/2013

(JUDGE! NA^MI WHZIRi (JUDGE) Page 18