Shobhit Sharma v. Shweta Dogra

1. The present petitions are filed against the order dated 07.10.2022 (hereafter ‘impugned order’) passed by the learned Judge, Family Court, Dwarka, New Delhi in MT No. 353/2019 titled Shweta Dogra v. Shobhit Sharma.

2. By the impugned order, the learned Family Court assessed the monthly income of the petitioner/husband to be ₹50,000/- per month and awarded interim maintenance to the tune of ₹16,000/per month to the petitioner/wife.

3. The learned counsel for the petitioner/husband submits that the learned Family Court erred in assessing the monthly income of the petitioner/husband. He submits that the said assessment of monthly income of a sum of ₹50,000/- per month is based on guesswork. He submits that the learned Family Court has failed to take into consideration that the petitioner/wife has concealed her income, and awarded interim maintenance to the tune of ₹16,000/- per month to the petitioner/wife.

4. He submits that the petitioner/wife has her own independent source of income, and contends that the payment of interim maintenance to the tune of ₹16,000/- per month to the petitioner/wife is not feasible.

5. The petitioner/wife essentially seeks enhancement of the interim maintenance. The learned counsel for the petitioner/wife submits that the petitioner/husband along with his father and brother are wholesale dealers of all India Level of iron and steel wire Mess. He submits that the petitioner/husband has two shops in Chawari Bazar, two godowns in Badli, Delhi, an ancestral House No. 682, Mukherjee Nagar, Delhi. Petitioner/husband and his family also fetch a rent of ₹40,000/- per month.

6. He relies on certain photographs to contend that the petitioner/husband is actively involved in the business of his father, and prays that the interim maintenance awarded to the petitioner/wife be enhanced.

7. The learned Family Court noted that the petitioner/wife was working as a physical instructor in Queens Marry School from 2015 till December 2016 on the basis of her certificates and experience in the field of NCC and Taekwando. It was noted that the petitioner/wife subsequently could not carry on because of an accident. The learned Family Court noted that though the petitioner/husband claimed to be working on a commission basis and earning only around ₹25,000/-, however, the same primarily was not appealing considering that as per the petitioner/husband himself, he had been working on a commission basis for different traders including his father.

8. The learned Family Court noted that the photographs on record, highlighting the presence of the petitioner/husband in the shop of his father, manifested the active involvement of the petitioner/husband in the said shop. The learned Family Court took into consideration the fact that the parties had started living separately since 01.12.2016, and that the ITRs filed by the petitioner/husband were from the year 2018. It was noted that the ITRs would not be material for inferring the income of the petitioner/husband and the same appeared to be an afterthought since the parties had started living separately.

9. In the light of the aforesaid, the learned Family Court assessed the income of the petitioner/husband to be not less than ₹50,000/- per month and awarded interim maintenance to the tune of ₹16,000/- per month to the petitioner/wife.

10. It has been noted in a catena of judgments that there is a tendency to downplay the income when a person is embroiled in a matrimonial dispute and that income tax returns do not necessarily provide an accurate reflection of the actual income in such cases (Ref. Kiran Tomar v. State of U.P.: 2022 SCC OnLine SC 1539). Thus, the possibility of the petitioner undermining his income to avoid paying maintenance of an appropriate amount to the respondents cannot be ruled out at this stage.

11. It is trite law that a husband cannot shirk his sacrosanct duty to financially support his wife. The Hon’ble Apex Court, in the case of Shamima Farooqui v. Shahid Khan: (2015) 5 SCC 705, observed as under:

with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar. There can be no shadow of doubt that an order under Section 125 CrPC can be passed if a person despite having sufficient means neglects or refuses to maintain the wife. Sometimes, a plea is advanced by the husband that he does not have the means to pay, for he does not have a job or his business is not doing well. These are only bald excuses and, in fact, they have no acceptability in law.If the husband is healthy, able-bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife's right to receive maintenance under Section 125 CrPC, unless disqualified, is an absolute right.” (emphasis supplied)

12. Similarly, the Hon’ble Apex Court in the in the case of Anju Garg and Anr. v. Deepak Kumar Garg: 2022 SCC Online SC 1314, observed as under: “10….The Family Court had disregarded the basic canon of law that it is the sacrosanct duty of the husband to provide financial support to the wife and to the minor children. The husband is required to earn money even by physical labour, if he is an able-bodied, and could not avoid his obligation, except on the legally permissible grounds mentioned in the statute…. x-x-x

13. Though it was sought to be submitted by the learned counsel for the respondent, and by the respondent himself that he has no source of income as his party business has now been closed, the Court is neither impressed by nor is ready to accept such submissions. The respondent being an able-bodied, he is obliged to earn by legitimate means and maintain his wife and the minor child….” (emphasis supplied)