Mr. Adab Singh Kapoor, Ms. Sefali Menezes and Mr. Raghav Mittal, Advocates. v. MOHIT KUMAR .....

7.9. This matter was thereafter listed before this Court on several dates however, the Respondent failed to clear the arrears of maintenance in terms of the order dated 04.12.2021. He further failed to make payments of current maintenance and instead made ad-hoc payments, intermittently to the Petitioner.

7.10. Pertinently, the Respondent in the meantime stopped making payment of rent to the landlord of the tenanted premises. In view of the default, the landlord instituted a suit for recovery of possession, which was served on the Petitioner herein on 01.12.2021. The Petitioner herein sought impleadment in the said civil suit, however, her application was dismissed vide order dated 30.08.2022 on the finding that she has no privity of contract with the landlord. Further, it has come on record that the Respondent suffered a consent decree of possession on 28.09.2022 in the said civil suit and consequently, the Petitioner herein is likely to be dispossessed in execution of the said decree.

7.11. The Respondent thus on one hand failed to pay the interim maintenance of Rs. 60,000/- per month to the Petitioner as directed by the Trial Court, which included the amount towards rent; and on the other hand, has consented to a decree of possession of the tenanted premises in favour of the landlord.

7.12. The Respondent has thus, resorted to legal process to have the Petitioner and her children evicted from the tenanted premises.

7.13. The Respondent however, has failed to comply with the direction issued by the Trial Court to pay the interim maintenance to the Petitioner and her children towards their sustenance, including residence.

7.14. In these circumstances and admitted facts, on 28.11.2022, the Respondent was held guilty of contempt and this Court observed as under: -

8. This matter was listed thereafter on 09.12.2022, 15.12.2022, 16.12.2022, 20.12.2022, 22.12.2022, 09.01.2023 and 17.01.2023. The matter was adjourned on the said dates at the request of the Respondent, who was pursuing his appeal against the order dated 04.12.2021. The said appeal as noted hereinabove was dismissed by the Appellate Court on 11.01.2023, upholding the order dated 04.12.2021.

9. The arguments on sentencing were finally heard on 08.02.2023 and the judgment was reserved.

10. The arrears of amount due and payable to the Petitioner is not in dispute, nor the imminent threat of dispossession either.

11. The only submission raised by the Respondent in his defense is that he does not have the financial wherewithal to make the aforesaid payment. However, the said submission of the Respondent was duly considered and rejected by the Appellate Court recently vide its order dated 11.01.2023. The relevant paras of the said order read as under: - “13. Moving further, counsel for the aggrieved has submitted that the trial court has overlooked transactions of several lakhs in the account of respondent no.1. He has further argued that the sale commission from one luxury car is enough to generate an income of atleast Rs. Two Lakh and sale of non luxury car would generate at atleast one lakh income. Further, as per the counsel, respondent no.1 received income from the business in both cash and cheque and additionally he has also opened an Olx Franchies which is an additional source of income. Further, respondent has platinum debit card with Standard Chartered Bank, LIC, Toyota Fortuner, Honda Jez and further that in October 2019 a flat which was in name of respondent’s mother was sold for a sum of Rs. Two Crore etc. He has further argued that the bank statement of respondent merely reveals a fraction of his income and do not account for significant cash transactions that he use. He has further submitted that the respondent is also involved in business of property which is evident by his visiting card “M K Cars & Properties” and further that he is also involved in trading activities on stock exchange platform and therefore the respondent income amounts to at least Rs. Five Lakhs. This court is of the opinion that the court has to assess income of the parties on the basis of the material placed on record and cannot take into account the oral assertion and counter assertions. Of course, some guess work is permitted at interim stage and the law also permits that court may draw adverse inference if it is found that there is some concealment by any party. No substantial material has been placed by the aggrieved before the court to substantiate the fact that the income of respondent is atleast Rs. Five Lakhs. As far as, the entry of credits into the account of respondent no.1 are concerned they have been duly taken note of by the Ld Trial Court while assessing the quantum of maintenance.

14. Now, moving to the contentions of counsel for respondent no.1, at the outset he has invited the attention of this court towards several paragraphs of the complaint wherein complainant has herself stated that respondent no.1 was a failure in his life and has admitted his earning to be nil and further that there are specific averments that respondent no.1 never contributed to household expenditure since day of his marriage and therefore there is no question of respondent no.1 being accustomed to any kind of lifestyle on the strength of income of appellant. He has drawn the attention towards specific admissions in para no.5, 6, 8, 11.2, 11.3, 11.5, 11.[9] etc. of the complaint wherein the complainant has averred that right from the beginning of marriage till date it was the aggrieved who was maintaining herself and her children and every business taken up by the respondent no.1 ended in a failure and he never contributed anything towards the household. He has further submitted that in para 11.10 it has been specifically mentioned that complainant’s parents have contributed immensely towards ensuring that the respondent no.1, 2 and 3 and the complainant are comfortable and are able to survive despite their dire financial situation; that complainant parents run a readymade garments shop and would often send clothes, quilts, blanket and other such items for the complainant and respondent so that they would not have to spend their limited financial resources onpurchasing such items. Evaluation of these and similar pleadings of complainant definitely prima facie gives a hint that respondent no.1 may not have been financially stable. But at the same time this by itself is no ground to refuse to maintain his wife and minor child. Moreover, these admission cannot be read in isolation and these cannot completely overshadow the other facts and circumstances of the case particularly their status and lifestyle. Admittedly, the minor son of the parties is studying in Heritage School and as per the admission of respondent no.1 the monthly fees is around Rs.10,000/. The argument of counsel for respondent no.1 that the same was paid by aggrieved (para XII of the appeal) is contrary to the bank statement of the aggrieved as the entry dated 24.09.2020 would show that the same was paid out of the joint account maintained by the respondent no.1 with Mrs Promila Kumar his mother (respondent no.2). Perusal of the entries of the said joint account would reveals that the money generated from business of respondent no.1 was also credited into the same as there are deposit entries in the name of Auto Advisor through RTGS (eg. entry dated 28.10.2020 for a sum of Rs. Nine Lakh) and this point towards the fact that the said account was also used by respondent no.1 for business purpose and therefore credits into the said account cannot be dismissed. Hence, it can be seen that the financial or business condition of respondent no.1 is not as hopeless as he has tried to portray. It has been specifically mentioned by the aggrieved that respondent no.1’s status can also be taken note of from the fact that he owns apple watch and I.Phone II. Ld Counsel for the respondent no.1 has tried to down play this fact by inviting the attention of this court towards the para no. 11.[4] of the reply to the complaint wherein it is mentioned that they were gifted by friend since help was rendered during covid situation. Again, it is a defence that may be proved during the trial. It has also come on record that huge sale proceeds of the property bearing no. G34, SFS Flats, Gaurav Apartments, (situated in Malviya Nagar extension) Saket, New Delhi which was in the name of respondent no.1’s mother was transferred in the aforesaid joint account maintained with Standard Chartered Bank, Saket, Branch. The explanation provided by respondent no.1 that the same was deposited in the joint account because respondent no.2 (mother) was travelling abroad is again a matter of trial, but at this stage prima facie the aforementioned facts clearly point out that respondent no.1 is a man of some means. Finally, it cannot be expected that a person who claims to have meagre income to afford a LIC policy and also two medi claims (this fact has been mentioned by the aggrieved in her income and expenditure affidavit and also given the policy numbers, infact purchasing LIC policy has been admitted by respondent no.1 in his reply).

16. If the lump sum amount of Rs.60,000/- awarded by the Ld. Trial Court for the maintenance of aggrieved and her minor child is seen in the light of principles of the aforequoted judgement then it appears to be just, fair and reasonable.”

12. The Appellate Court and the Trial Court after perusing the record and hearing the parties have passed a detailed order holding that the Respondent herein has the financial capacity to pay a sum of Rs. 60,000/- per month as interim maintenance.

13. Therefore, the plea of the Respondent as regard his lack of financial capacity has been rejected by the competent Courts and the Respondent cannot be permitted to agitate the said plea again, as it would amount to abuse of process as held by the Supreme Court in HSBC PI Holdings (Mauritius) Limited v. Pradeep Shantipershad Jain and Others, 2022 SCC OnLine SC 82, wherein it was held as under:

14. This Court is also unable to accept the contention that the Respondent does not have income to maintain the Petitioner and the children. The Trial Court and the Appellate Court, which are the competent Courts, after perusal of the record have assessed the monthly income of the Respondent based on the material available on the record and thereafter passed the order of maintenance. The Respondent cannot be permitted to set at naught orders passed by competent Courts by raising bald plea of lack of resources. In this regard, it would be instructive to rely upon a recent judgment of Supreme Court in Anju Garg v. Deepak Kumar Garg, 2022 SCC OnLine 1314, wherein it was held as under:

15. The Respondent has filed his affidavit dated 14.02.2023, wherein he has admitted to making payment of a sum of Rs. 2,95,000/- towards the maintenance between 30.11.2021 and 05.11.2022. He has further stated that he has made a payment of Rs. 58,000/- on 04.11.2022 to the landlord of the tenanted premises towards society maintenance charges and Rs. 88,070/- on 28.11.2022, towards electricity bill. He has further raised a plea that he is unable to deposit further amount in the account Petitioner, due to his personal account being frozen. He states that he has arranged for a further amount of Rs. 1,70,000/- (in cash), which he is willing to pay to the Petitioner, if allowed by this Court.

16. The Petitioner in her reply to the affidavit of compliance dated 14.02.2023, has admitted receipt of a total payment of Rs. 4,15,000/- till date.

16.1. The Petitioner has, however, without admitting to the veracity of the amounts of Rs. 58,000/- towards society charges and Rs. 88,070/- towards electricity bill, has stated in her reply that the said payments have been made in furtherance of a settlement reached between the Respondent and the landlord of the tenanted premises. The said payment has not been paid toward maintenance as directed by the Trial Court and therefore, no adjustment can be claimed for the said payment. He states pursuant to the aforesaid, the executing Court vide order dated 28.09.2022 in SC SCJ NO. 1012/2021, disposed off the execution petition on the basis of undertaking given by the Respondent that he is ready to vacate the tenanted premises within ten days from the date of said order. The relevant portion of the order dated 28.09.2022 is reproduced as under: - “It is submitted by both the parties that the present matter has been settled between the parties. Defendant has submitted that he is ready to vacate the tenanted premises i.e. Flat No. A-2/02, Azad Apartment, Sri Aurobindo Marg, Hauz Khas, New Delhi-110016 within ten days from today. He submits that he shall pay the arrears of electricity and maintenance of the society. He submits that he will not pay the arrears of rent w.e.f. 01.08.2021 till the time of vacation of the tenanted premises as the same has been forego by the plaintiff. Let separate statements of both the parties be recorded. In view of the statements of defendant and Ld. Counsel for plaintiff, the present matter stands disposed off as settled.” Respondent husband’s resort to legal process

17. The facts aforesaid evidence that the Respondent has taken resort to legal process to have the Petitioner and her children evicted from the tenanted premises, by willfully abstaining from payment of rent which led to the filing of a suit for possession by the landlord and thereafter consenting to a decree of possession.

18. Similarly, on 05.01.2022 in the present proceedings, the Respondent had sought an adjournment in this petition to avail his remedy of appeal against the Trial Court’s order dated 04.12.2021. Similar requests were made between 28.11.2022 and 09.01.2023 to this Court to await the orders of the appellate Court on the correctness of the interim maintenance. However, having failed in the appeal, the Respondent is unwilling to comply with the order dated 04.12.2021, which has attained finality.

19. Thus, in the opinion of this Court, on one hand the Respondent is seeking refuge in the legal process to deny and defeat the rights of maintenance of the Petitioner and her children (including residence), however, on the other hand he has been defiant and has willfully disobeyed the order dated 04.12.2021 even though admittedly, there is no stay operating against the said order. The Respondent has not complied with the orders obtained by the Petitioner through legal process, as the same is not convenient to him; and has thus shown scant regard for the orders of the Court, directing him to pay maintenance. There are admitted arrears of Rs. 6,65,000/- as on February, 2023 and the threat of homelessness to the Petitioner and her children, while the Respondent literally twiddles his thumbs, refusing to pay the maintenance due.

20. The Appellate Court has already taken note of the luxurious lifestyle of the Respondent who drives high end luxury car of the brand Toyota (Fortuner), uses an iPhone, which is admittedly, one of the most expensive brands for mobile phones in the world and wears an Apple watch. It has further been observed by the Appellate Court that it cannot be expected that a person who claims to have a meagre income, can afford a LIC policy and two medi-claims.

21. In the present case as well, the Respondent is a 46-year-old man, holding a graduation degree and has valuable experience in running a business. The non-payment of maintenance in compliance with the orders of the Court is, therefore, wilful and deliberate.

22. The record evidences that the Respondent has failed to make payment of the interim maintenance despite grant of opportunities and has, therefore, shown wilful disobedience of the orders and the directions passed by the Court. In the affidavit dated 14.02.2023 filed after the orders were reserved, the Respondent has averred that he is willing to make a payment of Rs. 1,70,000/-. No such offer was made during the hearing. No permission of the Court is required to make payment towards the arrear. The Respondent despite making the offer, did not pay the said amount to the Petitioner as is evident from her affidavit dated 15.02.2023. In fact, the said conduct of the Respondent shows that he has funds for making payment but he is withholding the same to prejudice the Petitioner and her children, while showing complete disobedience and disregard for the orders of this Court.

23. Accordingly, this Court imposes a fine of Rs. 2,000/- on the Respondent and sentences him to simple imprisonment for a term of two (2) month for the wilful default committed by him in payment of interim maintenance from September, 2021 until February, 2023.

24. This Court has considered that mere imposition of fine of Rs. 2000/would not meet the ends of justice, and that the sentence of imprisonment is necessary considering the facts that arrears owed by Respondent are far in excess of fine imposed, and the fact that he has deliberately, willfully, intentionally and defiantly disobeyed the directions issued to him by the Trial Court, as upheld by the Appellate Court and by this Court, despite grant of opportunities.

25. The learned counsel for the Petitioner has relied upon the judgment of the Division Bench of this Court in Sonali Bhatia vs. Abhivansh Narang passed in CONT. CAS (C) 429/2021 on 25.11.2021 and has relied upon paragraph 39 therein, more specifically, where in similar circumstances the Division Bench after awarding sentence had given last opportunity to the Respondent to clear the arrears of maintenance. Following the said judgment, and in view of the affidavit dated 14.02.2023 filed by the Respondent offering to make payment, this Court directs that, in case, the Respondent exhibits his apology by complying with the orders of the Trial Court and this Court, makes payment of entire arrears of maintenance within ten (10) days and undertakes to continue to pay the maintenance until the order dated 04.12.2021 continues to remain in force, and tenders an unconditional apology to this Court, this Court shall consider recalling the punishment of Respondent undergoing simple imprisonment, provided the Respondent complies with the aforesaid directions within ten (10) days. However, in case, he does not comply with the said direction within the time granted, he is directed to surrender before the Jail Superintendent, Central Jail, Tihar, New Delhi on 20.04.2023.

26. The Respondent is directed to appear before the Registrar General on 12.04.2023 to furnish a security bond for his surrender on 20.04.2023 in the sum of Rs. 50,000/- with one surety of like amount.

27. It is made clear that the non-compliance and disobedience arising in the present contempt petition pertains up to the maintenance dues for the period of February, 2023. Any further default by the Respondent will give rise to fresh cause of action.

28. With the aforesaid directions the present contempt petition stands allowed and the pending applications stand disposed of.

MANMEET PRITAM SINGH ARORA, J APRIL 10, 2023