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2021 DIGILAW 1259 (RAJ)

Shobhit Agarwal v. Neha Jain

2021-07-30

MAHENDRA KUMAR GOYAL, SANGEET LODHA

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JUDGMENT : Sangeet Lodha, J. 1. The matter comes up on two applications (IA Nos. 9566/18 and 1/19) preferred by the respondent-Neha Jain under Section 24of the Hindu Marriage Act, 1955 (for short "the Act of 1955"). By way of the first application (IA No. 9566/18) filed on 26.2.18, directions are sought to the appellant to pay the respondent maintenance pendente lite a sum of Rs. 1 lac per month. The second application (IA No. 1/19) is filed on 2.7.19, seeking directions to the appellant to pay the respondent a sum of Rs. 5 lacs for her treatment of brain-tumor. 2. The facts relevant are that a petition preferred by the appellant (husband) under Section 13 of the Act of 1955 against the respondent (wife) seeking dissolution of marriage by way of decree of divorce on the ground of cruelty, which stood dismissed by the Family Court, Jhunjhunu, vide judgment and decree dated 14.12.17 passed in Civil Misc. Case No. 198/17. Aggrieved thereby, the appellant preferred present appeal before this Court on 11.1.18. 3. During the pendency of the appeal, the respondent filed an application under Section 24 of the Act of 1955, claiming maintenance pendente lite, a sum of Rs. 1 lac and litigation expenses Rs. 2 lacs in lump sum. It is averred in the application that the appellant is employed in Bharti Airtel Limited DTH as Zonal Sales Manager and his annual income by salary is Rs. 20 lacs per annum. Besides, he is availing HRA, telephone expenses, petrol charges, medical expenses, health insurance, incentive, bonus etc. from the said company @. Rs. 4 lacs per annum. He also owns six flats in Jaipur; the rental income whereof is more than Rs. 1 lac per month. It is further averred by the respondent that the appellant is maintaining two luxury cars and has membership of two prestigious clubs in Jaipur. 4. By way of second application, the respondent has claimed Rs. 5 lacs for her treatment inasmuch as, she has suffered brain tumor and had to undergo a major surgery. For surgery of the brain tumor, the respondent was admitted and undergone surgery in Fortis Escort Hospital, Jaipur on 27.5.19 and incurred expenditure a sum of Rs. 2,38,173/- towards the medical and hospital expenses and Rs. 1 lac on account of the doctors professional fee. 5. For surgery of the brain tumor, the respondent was admitted and undergone surgery in Fortis Escort Hospital, Jaipur on 27.5.19 and incurred expenditure a sum of Rs. 2,38,173/- towards the medical and hospital expenses and Rs. 1 lac on account of the doctors professional fee. 5. The appellant has filed a reply to the application, taking the stand that he is already paying a sum of Rs. 16,000/- per month to the respondent as maintenance pursuant to order dated 28.2.19 passed by the Judicial Magistrate, Jhunjhunu in proceedings under the provisions of Protection of Women from Domestic Violence Act, 2005 ('the Act of 2005') and therefore, he is not liable to pay any additional amount of maintenance or the medical expenses as claimed by the respondent. According to the appellant, till the filing of the reply to the application on 25.7.19, an amount of Rs. 11,95,000/- has already been paid by him to the respondent against the amount of maintenance as directed by the Court in proceedings under the Act of 2005. 6. On 18.5.18, a coordinate Bench of this Court while deferring the hearing on application preferred by the respondent under Section 24 of the Act of 1955, directed both the parties to file affidavits in proforma settled by Delhi High Court in the decision dated 29.5.17 in FAO No. 369/1996-Kusum Sharma vs. Mahinder Kumar Sharma. 7. In compliance of the directions, the appellant and the respondent both filed their respective affidavits, setting out details in prescribed proforma alongwith documents in support thereof. The respondent also filed objections to the affidavit filed by the appellant. Thereafter, on 26.11.18, taking into consideration, the voluminous documents produced on behalf of the appellant and the respondent, a coordinate Bench of this Court passed an order in the following terms: "1. Parties have filed voluminous documents to show the income of the appellant and the respondent. Parties agree that the documents relied upon by them would be produced by them for purposes of audit before Mr. Sunil Rawat, Partner in M/s. Soni Rajender & Co. (Registration No. 079446) S-3, Goverdhan Enclave 4-B, Yudhishtar Marg, C-Scheme, Jaipur 302005. The mandate of the Chartered Accountant is to apprise the documents and submit a report giving opinion as to what is the income of the two spouses. Sunil Rawat, Partner in M/s. Soni Rajender & Co. (Registration No. 079446) S-3, Goverdhan Enclave 4-B, Yudhishtar Marg, C-Scheme, Jaipur 302005. The mandate of the Chartered Accountant is to apprise the documents and submit a report giving opinion as to what is the income of the two spouses. All relevant documents for the two financial years commencing from 01.04.2016 till 31.03.2017 and 01.04.2017 till 31.03.2018 shall be filed by the parties before Mr. Sunil Rawat. It is agreed that any information sought by the Auditor would be furnished by the parties to the Auditor. Appellant shall pay the fee to the Auditor." 8. Pursuant to the directions issued as aforesaid, Soni Rajendra & Co., Chartered Accountants filed two reports; one report concerns the income of the husband Shobhit Agarwal and another concerns the income of the wife Neha Jain. Vide order dated 29.3.19 passed by this Court, Registry was directed to supply a copy of both the reports to the learned counsel for the parties. 9. A perusal of the report submitted by the Mr. Sunil Rawat, Chartered Accountant for Soni Rajendra & Co., Chartered Accountants, on the basis of the documents furnished by the appellant-Shobhit Agarwal, the annual income of the appellant during the financial years 2016-17 and 2017-18 comes, to Rs. 15,20,184/- and Rs. 18,09,691/- respectively whereas, on the basis of the documents and information furnished by the respondent, her annual income during the financial years 2016-17 and 2017-18 has been assessed at Rs. 15,407/- and Rs. 37,315/- respectively. The income of the respondent as shown in the report is the interest accrued on the deposits in the saving bank account and FDRs. 10. The respondent has filed objections to the report submitted by the Chartered Accountant in respect of the income of the appellant. It is averred that the Chartered Accountant has shown the annual income of the appellant during the financial year 2017-18 as Rs. 17,96,361/- whereas, according to the details of the ICICI Bank account wherein the salary of the appellant received from his employer-Dish TV India Limited was deposited, his income during the financial year 2017-18 comes to Rs. 21,07,438/-. According to the respondent, the appellant is earning rental income of Rs. 20,000/- each per month from six flats owned by him and thus, the annual income of the appellant during the financial year 2017-18 comes to Rs. 21,07,438/-. According to the respondent, the appellant is earning rental income of Rs. 20,000/- each per month from six flats owned by him and thus, the annual income of the appellant during the financial year 2017-18 comes to Rs. 43,39,438/-, Accordingly, it is submitted that the amount of maintenance payable to the respondent must be assessed taking the annual income of the appellant during the financial year 2017-18 as Rs. 43,39,438/-. 11. The appellant has filed an additional affidavit on 26.7.21 stating that he has lost his job in Dish TV India Limited. In this regard, he has placed on record an email dated 8.3.21, received from Dish Infra, communicating that the resignation of the appellant has been accepted and he will be relieved on 15.3.21. It is averred that in the communication, the factum of appellant having resigned from service, is mentioned inasmuch as, termination/removal would amount to putting stigma on service career of the appellant. It is further averred that the appellant was out of job for four months and now he has joined service in a new start-up company namely, Ninja Cart as trainee, with the condition that he will be continued subject to need of the company. 12. Learned counsel appearing for the respondent (applicant) contended that the annual income of the appellant assessed by the Chartered Accountant on the basis of the documents produced, by him is not correct. Drawing the attention of the Court to the bank account of the appellant, (earned counsel submitted that during the financial year 2017-18, the annual income of the appellant from salary was Rs. 21,07,438/-. Learned counsel submitted that the appellant deliberately did not disclose his income from house property, he owns six flats constructed on Plot No. 40, Nand Vihar Colony, Vaishali Nagar, situated on 200 ft. wide Jaipur By-pass Read and earning a sum of Rs. 20,000/- per month from each flat. That apart, the annual income assessed does not include income from dividend, PF, shares trading/mutual funds etc. and thus, the amount of maintenance payable has to be assessed taking annual income of the appellant in the financial year 2017-18 as Rs. 44 lacs. Learned counsel submitted that while assessing the income of the appellant from salary and other sources, the factum of huge fixed assets owned by him, cannot be ignored. and thus, the amount of maintenance payable has to be assessed taking annual income of the appellant in the financial year 2017-18 as Rs. 44 lacs. Learned counsel submitted that while assessing the income of the appellant from salary and other sources, the factum of huge fixed assets owned by him, cannot be ignored. Learned counsel submitted that the respondent is entitled to adequate amount of maintenance so as to live the life at the level of the social status of the appellant. In support of the contentions, learned counsel relied upon the decisions of the Supreme Court in Shailja and Ors. vs. Khobbanna, (2018) 12 SCC 199 : 2017 (3) RLW 2490 (SC) and Manish Jain vs. Akansha Jain, AIR 2017 SC 1640 : 2017 (2) RLW 1641 (SC), Bench decision of this Court in Nitesh Agarwal vs. Smt. Aarti (DB CMA Nos. 56/2020 & 99/20 : 2020 (3) RLW 2095), and a decision of the Kerala High Court in T. Muralaeedharan vs. C.P. Vijayalakshmi: 2006 (4) SCC 682 (Kerala). 13. On the other hand, learned counsel for the appellant (non applicant) submitted that the respondent has deserted the appellant and living separately for last more than ten years without any reasonable cause and thus, she is not entitled to claim any maintenance from the appellant. Learned counsel submitted that the respondent has already been awarded maintenance a sum of Rs. 16,000/- per month by the Court of competent jurisdiction in proceedings under the Act of 2005 and therefore, on the application preferred by the respondent under Section 24 of the Act of 1955, the Family Court declined to award the maintenance as prayed for. Learned counsel submitted that the appellant has already paid huge amount to the respondent towards the arrears of maintenance in terms of directions issued by the competent Court in proceedings under the Act of 2005 and thus, the expenses for her medical treatment has already been taken care of. Learned counsel submitted that there is no evidence on record suggesting that the appellant had any source of income other than income from salary. Learned counsel submitted that appellant himself is suffering from grave brain disease and incurring huge expenditure every month. Besides, his father is suffering from heart disease and had undergone angioplasty twice. Precisely, it is contended that the appellant is not position to pay any amount more than Rs. Learned counsel submitted that appellant himself is suffering from grave brain disease and incurring huge expenditure every month. Besides, his father is suffering from heart disease and had undergone angioplasty twice. Precisely, it is contended that the appellant is not position to pay any amount more than Rs. 16,000/- per month, which he is paying pursuant to the order passed by the competent Court in proceedings under the Act of 2005. 14. We have considered the rival submissions and perused the material on record. 15. Indisputably, the purpose behind Section 24 of the Act of 1955 is to provide necessary financial assistance to the party to the matrimonial dispute who has no independent income of his own, sufficient for her or his support or to bear the expenses of the proceedings. While considering the application for award of interim maintenance, the relevant consideration is the inability of the spouse to maintain himself or herself for want of independent income or inadequacy of the income to maintain at the level of social status of other spouse. However, no hard and fast rule can be laid down for determination of the amount of maintenance pendente lite. 16. A bare perusal of the material on record reveals that the respondent does not have sufficient source of income to maintain herself. Even as per the report submitted by the Chartered Accountant pursuant to the directions issued by this Court, clearly reflects that the annual income of the respondent by way of interest accrued on deposits in the bank during the financial year 2017-18 was Rs. 37,315/-. There is nothing on record suggesting that the respondent has any other source of income. The fact that the respondent has recently suffered brain tumor, undergone surgery and thereby incurred huge expenditure, is also not controverted by the appellant. In this view of the matter, it can be fairly concluded that the respondent is entitled to claim adequate amount as maintenance pendente lite from the appellant in terms of provisions of Section 24 of the Act of 1955. 17. Coming to the income of the appellant, the fact that at the relevant time, the appellant was engaged in Dish TV India Limited as Zonal Sales Manager, is not disputed. As per the details furnished by the appellant, the Chartered Accountant has assessed his annual income during the financial years 2016-17 and 2017-18, as Rs. 15,20,184/- and Rs. 17. Coming to the income of the appellant, the fact that at the relevant time, the appellant was engaged in Dish TV India Limited as Zonal Sales Manager, is not disputed. As per the details furnished by the appellant, the Chartered Accountant has assessed his annual income during the financial years 2016-17 and 2017-18, as Rs. 15,20,184/- and Rs. 18,09,691/- respectively. The contention sought to be raised by the respondent that as a matter of fact, as per the statement of bank account of the appellant wherein, his income from salary was being deposited comes to Rs. 21,07,438/- is also substantiated from the documentary on record. Though, during the course of hearing, the appellant has filed an affidavit asserting that he has quit the job in Dish TV India Limited and presently, he is engaged with new startup company Ninja Cart but it is not the case set out by the appellant that after his engagement with the new company, his income has substantially reduced. Be that as it may, the fact remains that there is consistent trend of increase in the annual income of the appellant over the years. 18. It is pertinent to note that in the application filed, the respondent has specifically averred that the appellant has six flats and monthly rental income from the flats is about Rs. 1 lac. The averments made as aforesaid, have not been specifically controverted by the appellant in the reply to the application filed, 19. In the considered opinion of this Court, keeping in view the income of the appellant and the standard of life he is living, the meagre amount of Rs. 16,000/- per month awarded by the competent Court in proceedings under the Act of 2005 cannot be considered to be sufficient amount for maintenance of the respondent so as to enable her to live the life at the level of social status of the appellant. 20. In Bhuwan Mohan Singh vs. Meena, (2015) 6 SCC 353 : 2014 (4) RLW 2959 (SC), the Hon'ble Supreme Court while dealing with the question with regard to determination of the amount of maintenance in proceedings under Section 125 of, Criminal Procedure Code, observed that the concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. The Court observed that the wife is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. The Court further observed that in proceedings of such a nature, the husband cannot take subterfuges to deprive the wife the benefit of living with dignity. 21. In Neeta Rakesh Jain vs. Rakesh Jeetmal Jain, 2010 AIR SCW 441, the Supreme Court observed: "8. Section 24 thus provides that in any proceeding under the Act, the spouse who has no independent income sufficient, for her or his support may apply to the court to direct the respondent to pay the monthly maintenance as the court may think reasonable, regard being had to the petitioner's own income and the income of the respondent. The very language in which Section is couched indicates that wide discretion has been conferred on the court in the matter of an order for interim maintenance. Although the discretion conferred on the court is wide, the Section provides guideline inasmuch as while fixing the interim maintenance the court has to give due regard to the income of the respondent and the petitioner's own income. In other words, in the matter of making an order for interim maintenance, the discretion of the court must be guided by the criterion-provided in the Section, namely, the means of the parties and also after taking into account incidental and other relevant factors like social status; the background from which both the parties come from and the economical dependence of the petitioner. Since an order for interim maintenance by its very nature is temporary, a detailed and elaborate exercise by the court may not be necessary, but, at the same time, the court has got to take all the relevant factors into account and arrive at a proper amount having regard to the factors which are mentioned in the statute." (emphasis added) 22. In Manish Jain, relied upon by the counsel for the respondent, the Hon'ble Supreme Court laid down as under: "15. An order for maintenance pendente lite or for costs of the proceedings is conditional on the circumstance that the wife or husband who makes a claim for the same has no independent income sufficient for her or his support or to meet the necessary expenses of the proceeding. An order for maintenance pendente lite or for costs of the proceedings is conditional on the circumstance that the wife or husband who makes a claim for the same has no independent income sufficient for her or his support or to meet the necessary expenses of the proceeding. It is no answer to a claim of maintenance that the wife is educated and could support herself. Likewise, the financial position of the wife's parents is also immaterial. The Court must take into consideration the status of the parties and the capacity of the spouse to pay maintenance and whether the applicant has any independent income sufficient for her or his support. Maintenance is always dependent upon factual situation; the Court should, therefore, mould the claim for maintenance determining the quantum based on various factors brought before the Court." (emphasis added) 23. In the backdrop of the settled position of law discussed as above, adverting to the facts of the present case, indubitably, the appellant husband is earning more than Rs. 1,50,000/- per month. He has his own residential accommodation whereas, the respondent wife apparently does not own her own accommodation. The respondent has undergone a major brain surgery and already incurred huge expenditure. Obviously, she needs adequate amount so as to take care of her own health and live the life at the level of the social status of the appellant, who has adequate sources of income. 24. For the aforementioned reasons; taking into consideration the material on record, establishing the sources of income of the appellant and the facts regarding his capital assets, which remain uncontroverted, we consider it appropriate and accordingly, direct the appellant husband to pay the respondent wife maintenance pendente lite a sum of Rs. 50,000/- per month. The amount of maintenance shall be payable from the date of application filed by the respondent claiming maintenance before this Court i.e. 26.2.18. The arrears of maintenance payable in terms of this order from 26th February, 2018 to 31st July, 2021 shall be paid by the appellant to the respondent in three equal monthly installments. The first installment shall be paid on or before 31st of August, 2021 and subsequent two installments on or before 30th September, 2021 and 31st October, 2021 respectively. The arrears of maintenance payable in terms of this order from 26th February, 2018 to 31st July, 2021 shall be paid by the appellant to the respondent in three equal monthly installments. The first installment shall be paid on or before 31st of August, 2021 and subsequent two installments on or before 30th September, 2021 and 31st October, 2021 respectively. The appellant shall continue to pay the amount of monthly maintenance to the respondent during the pendency of the proceedings before this Court by 7th Day of every month. The amount of maintenance being paid by the appellant to the respondent in terms of the order passed by the Court of competent jurisdiction in proceedings under the Act of 2005, shall be adjusted against the amount of maintenance payable in terms of this order. The respondent shall be paid a sum of Rs. 50,000/- in lump sum by the appellant towards the litigation expenses. 25. In view of the amount of maintenance determined as aforesaid, we are not inclined to award any separate amount to the respondent towards the medical expenses incurred by her. 26. Accordingly, the application (IA No. 9566/18) preferred by the respondent claiming maintenance pendente lite stands allowed in the terms indicated above. The application (IA No. 1/19) preferred by the respondent claiming, reimbursement of the medical expenditure incurred is rejected. No order as to costs.