M.S. v. S.S.

1. The present matrimonial appeal under Section 19 of the Family Courts Act, 1984, filed belatedly, challenges an order dated 25.05.2017, whereby two applications instituted on behalf of the respondent/wife under Sections 24 and 26 of Hindu Marriage Act, 1955 seeking maintenance for herself and for the two minor children, was allowed by the Principal Judge, Family Courts, Central District, Tis Hazari Courts, Delhi in HMA No. 62043/2016 titled as “M.S. vs. S.S”; 2018:DHC:3379-DB MAT. APP. 121/2018 Page 2 as well as an order dated 05.04.2018 dismissing the application seeking review of the order dated 25.05.2017.

2. At the outset, it must be pointed out that aggrieved by the impugned order dated 25.05.2017, whereby the above-stated applications were allowed, the appellant/husband instituted an application seeking review of the said order dated 25.05.2017 which came to be dismissed vide the impugned order dated 05.04.2018.

3. In the latter order, the learned Family Court observed as under:- “The petitioner requests for an adjournment on the ground that his counsel is not available today due to certain personal reasons. Adjournment is declined. A review application u/s 114 r/w Order 47 Rule 1 and Section 151 CPC dated 30.06.2017 is filed on behalf of the applicant/ petitioner husband which is pending for disposal. A reply to the review application has already been filed. Heard and perused the record. Shorn of all details, it may be stated that this Court vide order dated 25.05.2017 disposed of application u/s 24 & 26 of the Hindu Marriage Act thereby directing the petitioner husband to pay a sum of Rs. 10,000/- to the respondent wife w.e.f. June 2015 i.e time after she left her services: and the petitioner husband has further been directed to pay adinterim maintenance @ Rs.7,500/- to each of the minor children from the date of filing of the petition till they attain the age of majority. The petitioner husband was also directed to pay litigation cost of Rs.11,000/-. Suffice to state that the said order has not been complied with by the petitioner husband. He has been MAT. APP. 121/2018 Page 3 given several substantive opportunities to make payment towards arrears of maintenance and also to pay maintenance on current basis but in vain. Ex- facie, in the review application, I find that there are brought out no grounds so as to reconsiders or recall the earlier order dated 25.05.2017. No iota of case is made out that there is any error apparent on the face of the record. This Court took into account social and economic factors including the life style of the parties while passing the order on maintenance. Moreover, since the order u/s 24 & 26 of the HMA is an appealable order, no review can be entertained. It appears that the review petition is an appeal in disguise, which cannot be entertained by this Court. It is quite noticeable in matrimonial proceedings that it has become unsavoury trend on the part of the defaulting spouse moving review application, whenever an order of maintenance is passed and thereby derailing the proceedings and frustrating the letter and spirit of the law. In the said view of the matter, the review application dated 30.06.2017 is hereby dismissed with cost of Rs.10,000/- which be paid to the respondent on the next date of hearing. The petitioner husband is afforded one more opportunity to pay the arrears of maintenance as per the order dated 25.05.2017, failing which the present petition shall be adjourned sine die. Now to come up for status of payment on 16.05.2018.” MAT. APP. 121/2018 Page 4

4. A plain reading of the above order clearly reflects that despite directions contained in the earlier order dated 25.05.2017, directing the appellant to pay a sum of Rs. 10,000/- to the respondent w.e.f. June 2015 i.e. time after she left her services; and maintenance at the rate of Rs. 7,500/- to each of the minor children from the date of filing of the petition till they attain the age of maturity; and litigation cost in the sum of Rs. 11,000/-; the appellant/husband despite several opportunities, refused to make payment of the arrears of maintenance, as well as, the monthly maintenance directed to be paid thereafter.

5. It is further observed that the learned Family Court came to a finding that having regard to the social and economic factors including, the lifestyle of the parties, which had been elaborately considered in the earlier order, there were no grounds to reconsider or recall that order.

6. In this behalf, learned counsel appearing on behalf of the appellant/husband would urge that the respondent/wife admittedly had a source of income which she had purportedly sought to suppress and that even otherwise, from the material on record, it would be evident that the appellant/husband did not have sufficient resources to disburse the amount of maintenance directed to be paid.

7. We find that the submission made on behalf of the appellant/husband is untenable for the following reasons:a) That the appellant/husband in his affidavit in reply to the applications under Sections 24 and 26 of the said Act did not specifically deny that he was undertaking coaching classes earning upto Rs. 50,000/- per month; MAT. APP. 121/2018 Page 5 b) Further the asseveration that the children were studying in the Bhai Joga Singh Khalsa Public School and the Shanti Bal Niketan, New Patel Nagar, New Delhi, respectively, which resulted in incurring a spending of about Rs. 5000/- to Rs. 10,000/- per month, on their education was also not denied; and c) That the parties enjoyed a moderately good and comfortable lifestyle at the time they were residing together in the matrimonial home; d) Lastly, it is evident that the appellant/husband was selfemployed and owned and operated a coaching centre, which in his submission, has been closed down subsequently because of the complaints of the respondent/wife.

8. Insofar as, the asseveration in relation to the suppression or non-disclosure of the working status of the respondent/wife is concerned, the same is patently contrary to the record inasmuch as, in her affidavit filed in terms of the directions contained in the decision of this Court in “Kusum Sharma vs. Mahender Kumar Sharma” reported as 2017 SCC Online Del 12534, she has voluntarily disclosed that she was initially employed at the salary of Rs. 5000/- per month with M/s Aroma Cargo Services at Nehru Place, Delhi from August 2012 to May, 2015; which salary had subsequently been increased to Rs. 8000/- per month and that, at the time of the filing of the affidavit, she was not regularly employed but received a sum of Rs. 600/- per day.

9. On the contrary, the appellant/husband has proceeded to state his income purely on the basis of denial, and in these circumstances, MAT. APP. 121/2018 Page 6 the assumption based on which the learned Family Court directed payment of maintenance to the respondent/wife, as well as the minor children of the parties, cannot be faulted.

10. In view of the foregoing discussion, in our considered view, the present appeal is devoid of merit and the same along with the pending applications is accordingly dismissed.

SIDDHARTH MRIDUL (JUDGE)

DEEPA SHARMA (JUDGE) MAY 22, 2018 ss