Chander Shekhar Manchanda v. Aarti Manchanda

1. This is a petition under Article 227 of the Constitution of India against the order dated 19.4.2011 passed by the Family Court, Rohini by virtue of which the interim maintenance @ `15,000/was granted to the respondent/wife.

2. I have heard the learned counsel for the petitioner. He has stated that the documents filed by him have not been considered. In this regard, the learned counsel has drawn the attention of the Court to pages 28-29 of the petition showing identity card of the respondent/wife and a receipt purported to be showing that she had 2013:DHC:924 deposited a sum of `6,000/- with some institute for taking some computer training.

3. It has also been contended by the learned counsel that the respondent has a flat in Rohini and she is earning rental income from the said flat. It has also been urged by him that the respondent/wife in her application under Section 24 of the Hindu Marriage Act has not revealed the material fact that two minor children of the parties are with the petitioner and their entire expenses including the school fees, are being borne by the petitioner himself. On the basis of these broad averments, he has assailed the impugned order.

4. I have carefully considered the submissions of the learned counsel for the petitioner and gone through the impugned order.

5. The petitioner had filed a petition for divorce on the ground of cruelty and desertion. During the pendency of the said petition, the respondent /wife filed an application for grant of maintenance @ `50,000/- apart from litigation expenses of `55,000/-. It was alleged in the application that the petitioner is running his own business of shoe material and cotton cotted fabric in the name and style of M/s N.C.Enterprises and is earning around `2 lacs per month. Apart from this, it was alleged that he has 2 flats in Rohini from which he is earning rental income. It was also alleged that the appellant has two luxury cars and the maintenance of the cars itself will entail huge expenses.

6. All these facts were averred in order to show the status of the petitioner and on the basis of all these facts, an ad interim maintenance of `50,000/- was claimed. The petitioner filed reply to the application under Section 24 of HMA and contested the claim. It was submitted by him that the petitioner is not earning `2 lacs per month as is sought to be alleged by the respondent on the contrary, his actual income is `3.[5] lacs per annum only.

7. With regard to the flats, the petitioner admitted ownership in respect of only one flat and stated that he is living in the same and therefore, there is absolutely no question of making any income from the said flat. With regard to the ownership of the luxury cars, no averment was made by the petitioner in the reply. On the contrary, it was alleged by the petitioner that so far as the respondent is concerned, she herself is doing business of beauty parlour and is earning `20,000/- per month. The petitioner had also stated that he has to maintain his widowed mother and bear the expenses of his two minor children, which consume his most of the income. He had also filed his income tax returns for the year 2010- 2011 which showed his gross income to the tune of `4,25,664/-.

8. The trial court after taking into account the factual matrix and prima facie evidence produced by both the parties, took a view that the petitioner is a businessman and it is a common knowledge that the businessmen do not disclose their correct income in their returns and therefore, it took the income of the petitioner as `1 lac per month. The said income of `1 lac was sought to be divided in terms of the judgment of this Court in six parts. Only one out of six parts was allocated to the respondent/wife for the purpose of her maintenance which was accordingly fixed at `15,000/-.

9. The learned counsel for the petitioner herein feeling dissatisfied has filed the present petition under Article 227 of the Constitution of India assailing the impugned order making submissions as having reproduced herein above. The jurisdiction of the appellate Court under Article 227 is very limited. It has to be exercised only when there is a jurisdictional error or trial court acts in excess of its jurisdiction or a perverse finding is returned prima facie by the court below.

10. I do not feel that the trial court has arrived at a perverse finding or it was not within its power to fix ad interim maintenance as has been done.

11. Admittedly, both the parties in the instant case have failed to produce any documentary evidence other than income tax return of the petitioner which shows the income of the husband to the tune of `4,25,664/- per month. It is a common knowledge and rightly so believed by the trial court that the professionals, businessmen and all other similarly placed persons earn much more than what is reflected in the income tax record that is to say that if a person has shown his income as `4.[5] lacs, it could be very reasonably assumed that his actual income is at least three times more than what has been reflected in the income tax record. Apart from this, the petitioner admittedly being a businessman, all his transactions would not be reflected only by way of cheques. There is also certain amount of money flowing by way of cash over a period of time. Therefore, under these circumstances, I feel that the trial court was perfectly justified in assuming his income as `1 lac per month. Having done so, the only question was with regard to the apportionment of that income for the purpose of fixation of maintenance of the respondent/wife. In this regard also, on the basis of the judgment of this Court, the income of the petitioner has been divided into six parts.

12. Keeping in view his other liabilities pertaining to his widowed mother and two minor children and other expenses of his own self, only 1/6th of his income has been allocated to the respondent/wife which is `15,000/-. Keeping in view the income of `1 lac per month being earned or made by the petitioner a sum of `15,000/cannot be said to be highly excessive to sustain a person in the present times when each day, the cost of the articles of daily routine is increasing. Therefore, I do not feel that the quantum of maintenance which has been fixed by the trial court is excessive and would warrant interference by this Court.

13. There are two other factors which have been urged by the petitioner; one with regard to the alleged concealment by the wife with regard to the custody of the children being with the petitioner. The submission of the learned counsel for the petitioner is that this fact ought to have been disclosed by the wife in the application. This fact becomes inconsequential because ultimately no money has been given by way of an ad interim maintenance for the children to the respondent.

14. As regards, the question of earning of the respondent herself from the beauty parlour, I feel that so far as the employment of the respondent in a beauty parlour is concerned, this is only a submission without any documentary evidence on record. The petitioner would be well within his right to adduce evidence during the course of trial and thereafter, file appropriate application for modification of the order in the light of the facts so brought on record. So far as two documents which are the identity card and the receipt of deposit of `6,000/- by the respondent with some institute for undergoing a course of computer training are concerned, it only reflects expenses having been incurred by her and does not reflect her income. Since the respondent is living separately and has specifically stated that she is not gainfully employed, there is absolutely no reason for her not to pursue some course or attain some skills which can get her employed, so that she is financially independent. This cannot be construed against her at this stage.

15. In the totality of facts and circumstances, I do not find that this is a fit case where the Court must exercise its jurisdiction under Article 227 of the Constitution of India, accordingly, the petition is dismissed. V.K. SHALI, J. FEBRUARY 19, 2013 RN