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Baby Rashmi Mehra and Another Vs. Sunil Mehra and Others - Court Judgment

LegalCrystal Citation
CourtDelhi High Court
Decided On
Case NumberI.A. 799 and 800/89. in Suit No. 290/1989
Reported inAIR1991Delhi44; I(1990)DMC94
ActsHindu Adoptions and Maintenance Act, 1956 - Sections 18, 20 and 23(2); Code of Civil Procedure (CPC), 1908 - Sections 151 - Order 11, Rule 14; Income Tax Act
AppellantBaby Rashmi Mehra and Another
RespondentSunil Mehra and Others
Appellant Advocate Y.P. Narula, Adv
Respondent Advocate A.N. Parekh, Adv.
Cases ReferredKulbhushan v. RajKumari
Excerpt: rigid rules are laid down. each case has different circumstances. further the disclosure of income in the income tax returns are not necessarily to be accepted. also there is no set formula for fixing percentage of income. normally it is the position and status of parties which is relevant. - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india. the husband thereupon..........four storied building at 10 best marg, colaba, bombay. 9. the case of the defendants is that the husband defendants i has i/ 6th share in both properties in greater kailesh-1, given at seriall no. 2 above; similarly he has 1/6th share in two properties in greater kailash-ii, as given at seriall no. 3 above. defendants say that greater kailash-11 properties are vacant plots of land. admittedly, defendant i has 1/6th share in properties in kailash colony market as given at seriall no. 4 above and has 1/6th share in properties nos. 8/47, 8/48, 8/49 and 8/50 in vikram vihar (behind vikram hotel). regarding other properties in vikram vihar, the case of the defendants is that those are owned by the grand mother, defendant 7. regarding the properties at bombay as given at seriall no. 6 above,.....

1. Plaintiff 2 Ms. Seema Mehra and defendant 1 Mr. Sunil Mehra are wife and husband. They were married on 22nd February 1985. Plaintiff 1, Baby Rashmi, born on 21st December 1985 is their daughter. According to plaint defendant 2 Moti Lal Mehra is the father of Sunil. There is some dispute on this aspect which ,however, is not relevant for deciding the present controversy. Defendant 3 is the mother; defendants 4 to 6 the brothers and defendant 7 is the grand mother of Sunil, defendant 1.

2. The wife and husband last resided together at premises No. C-207, Greater Kailash-I, New Delhi. It appears that since about September 1988 Seema and Rashmi are living at the residence of Seema's father.

3. The suit has been filed under the provisions of Ss. 18 and 20. Hindu Adoptions and Maintenance Act, 1956, No. 78 of 1956 (hereinafter referred as the Act). The daughter and mother have, inter alia, claimed that (a) a decree for maintenance for a sum of Rs. 6500 / - per month against the defendants; (b) a decree against defendant I directing him to provide for the separate residence for the plaintiff as per the status of the Parties and (c) provision be made for the marriae expenses of plaintiff 1. Defendants 2 to 7 have been joined as parties to the suit on the allegations that defendants are holding assets jointly and the share of defendant 1 is to be ascertained in the entire estate belonging to the joint family.

4. Along with the suit two applications have been filed, one-under S. 23 of the Act (I. A. 799 / 89) seeking an order of interim maintenance and, second, under 0. 11 R. 14 and S. 151, Code of Civil Procedure (I. A. 800/ 89) seeking an order that defendants be directed to file all documents of title and also income tax records with regard to the assets owned by them singly or jointly and/or in the name of HUF.

5. Defendants were directed to file documents in their power and possession on which they rely along with their written statements. Defendants have filed a joint written statement, joint replies to the aforesaid two applications and have also filed certain documents. I have heard learned counsel for the parties. Mr. Parekh, learned counsel for the defendants, without prejudict to the right and contentions of the defendants in the suit did not dispute that an order of interim maintenance in favor of the plaintiff is liable to be passed but there is a dispute on the question of quantum of interim maintenance.

6. The Act vests a wide discretion in Court while fixing quantum of maintenance. The said discretion, is to be guided by the sound principles and which exercising it, the Court have to keep in view the object of the Act including the factors enumerated in S. 23(2) of the Act. In the matter of determination of quantum of maintenance no rigid or hard and fast rule has been laid down nor is it possible to lay down any such rule. The Privy Council, in leading case of Ekradeshwari v. Homeshwar AIR 1929 PC 128 has observed that maintenance depends upon a gathering together of all the facts of the situation, the amount of free estate, the past life of the married parties and the families, a survey of the condition and necessities and rights of the members, on a reasonable view of change of circumstances possibly required in the future, regard being of course had to the scale and mode of living and the age, habits and wants and class of life of the parties.' The Supreme Court in 1971 All LJ 1047 Kulbhushan v. RajKumari , : [1971]2SCR672 expressed its agreement with the aforesaid observation of the Privy Council. It would be necessary to consider the position and status of the parties and the overall financial position of the husband as the words position and status' in S. 23(2) of the Act, are wide enough to include the financial position of the parties.

7. Before considering the position and status of the parties including the financial position of the husband and the reasonable wants of the plaintiffs, it may be noticed that the defendants have not contended that the plaintiffs have some other property or have earnings from some other source, an it was also not contended on behalf of the husband that he has to maintain some other person besides the plaintiffs.

8. Admittedly, the husband is a partner in the wholesale cloth business under the name and style of M/s. Mohan Lai Mehra, having its place of business in Chandni Chowk, Delhi. The husband has 16% share in the said partnership firm. According to plaintiff, the other assets jointly owned by the defendants are these: -

'1. House No. 39, Hanuman Road, New Delhi.

2. Properties in Greater Kailash-I In,C-Block-House No. 207

In E-Block-House No. 341 and one more house

3. Properties in Greater Kailash-11

In E-Block-plots No. 576, 303, and three more

4. Properties in Kailash Colony Market HS Block-No. 22,35,2.

5. Properties in Vikram Vihar (Behind Vikram Hotel)

House Nos. 5/29/, 5/30, 5/31, 5/32, 8/47, 8/48, 8/49, 8/50.

6. Properties in Bombay A complete four storied building at 10 Best Marg, Colaba, Bombay.

9. The case of the defendants is that the husband defendants I has I/ 6th share in both properties in Greater Kailesh-1, given at Seriall No. 2 above; similarly he has 1/6th share in two properties in Greater Kailash-II, as given at Seriall No. 3 above. Defendants say that Greater Kailash-11 properties are vacant plots of land. Admittedly, defendant I has 1/6th share in properties in Kailash Colony market as given at Seriall No. 4 above and has 1/6th share in properties Nos. 8/47, 8/48, 8/49 and 8/50 in Vikram Vihar (Behind Vikram Hotel). Regarding other properties in Vikram Vihar, the case of the defendants is that those are owned by the grand mother, defendant 7. Regarding the properties at Bombay as given at Seriall No. 6 above, defendants say that it is owned by defendant 2 and defendants I has no right or interest in the said property. With regard to Bombay property, the defendants further say that ground floor portion is let out to Hotel Moti International, a partnership firm of which defendant I is a partner to the extent of 20%. Regarding Hanuman Road property at Seriall No. I above, the case of defendants is that the said premises are rented by grand mother, defendant 7, and none of the defendants owns it.

10. For determining the quantum of maintenance and the financial position of the husband, I will take into consideration only the admitted assets. Admittedly the husband has 1/ 6th share in various properties/ plots as given above and has 16% share in the wholesale cloth business and 20% share in the hotel business at Bombay. Even 1/6th share in the aforesaid properties will run into millions of Rupees. The financial position of the husband appears to be very sound and he appears to be in the higher income bricket with shares, in various properties and in the wholesale cloth and hotel business.

11. The father of Seema is a retired Colonel of Indian Army and now appears to be in consultancy business. The obligation to maintain Seema and Rashmi is that of defendant I and not of his father-in-law, who, it appears, had arranged for the reception of the marriage party in Hotel Taj Palace, New Delhi. The father of Seema also appears to be a fairly well to do person.

12. Rashmi is young child who will attain age of four years in December 1989. It appears that after filing of the petition, she was admitted in Springdales School, in the month of April, 1989. The photostate copies of receipts issued by the bank in token of receipt of her fee etc. have been placed on record. A sum of Rs. 1709 / - was deposited in the account of the school at the time of her admission. It further appears that a sum of Rs. 921 / - was deposited towards her fees etc. for three months, i.e. July to September. Her mother Seema says that the fees of the school is paid in quarterly installment of Rs. 921 / -. A sum of Rs. 2,000/- per month has been claimed as maintenance for her. For day to day needs like food, clothing and medical expenses etc. the wife Seems has also claimed a sum of Rest. 2,000/- per month by way of maintenance. Seema is about 27 years old age and is admittedly neither working nor has any income of her own nor does she own any immovable asset. In addition to claim of Rs. 2,000/- each, plaintiffs have claimed a sum of Rs. 2500/- per month by way of rent for hiring a house in Delhi.

13. According to plaintiffs, the income of defendant No. 1 is more than Rs. 1 lakh per month, whereas, according to defendants, yearly income of defendant I is approximately Rs. 45,000/-. By orders made on April 12th, 1989, defendants were directed to file documents in their power and possession on which they rely along with the written statement. The written statement was filed on 4th July 1989 but not the documents. On August 1st, 1989, defendants were directed to file documents including income-tax and wealth tax returns. Defendant I has filed on 7th August 1989, the assessment orders and Income-tax returns for the assessment years 1986-87 1987-88 and 1988-89. Wealth Tax returns of assessment orders have not been filed for any year. For the assessment year 1988-89 which corresponds to accounting year ending 31st March 1988, the net taxable income of defendant I has been assessed at Rs. 45,700/-. Relying on this assessment learned counsel for defendant I submitted that the income of defendant I is as assessed and on that basis, a sum of Rs. 1,000/- per month be fixed as interim maintenance jointly for daughter and mother. Even this assessment order shows that yearly income of defendant 1 is about Rs. 55,570/ -. The total income, even as per the Income Tax return is Rs.52,700/- and by deducting interest income of Rs. 7,000/- as permissible under the provisions of Income-tax Act, a sum of Rs. 45,700/ - has been worked out. The said sum of Rs. 7,000/ -has to be added to the assessed income to determine the yearly earnings of defendant 1. Besides that the amount of about Rs. 3,000/- claimed as repairing and collection charges has also to be excluded because it is not the case of defendants that any amount was spent on repairs or towards collection charges. Thus total yearly income of defendant I would be Rs. 55,700 / -. Defendant I will be entitled to deduct the amount pay as income -1 ax which would be to the tune of about Rs. 7,000/ -. The yearly income would, thus, work out to be about Rs. 48,000/ -i.e. Rs. 4,000/- per month, as per income tax record. For determining yearly income of defendant I for the purposes of this case, he has not claimed any other deduction.

14. Mr. Narula and Mr. Parekh, learned counsel for the parties, have both sought support from the judgment of Supreme Court in Kalbushan's case (supra). In the said case the Supreme Court was considering appeals filed by the husband against the judgment of Allahabad High Court fixing monthly maintenance for wife at Rs. 250/ - subject to a limit that the husband would not be liable at any time to pay more than 25% of the total income as accepted by Income-tax authorities. With regard to the daughter, the High Court fixed the amount of maintenance at Rs. 1501- per month subject to similar limit as in the case of the wife, the quantum being directed not to exceed 15% of the average monthly income of the father. The wife's suit for maintenance had been filed on April 27, 1954 and daughter's suit was filed on April 5, 1955. The High Court found that the husband was receiving a salary of Rs. 682 / - per month and that his private practice which was of the order of Rs. 250/ - per month in 1953-54 could higher in 1957. The husband was a Reader in Medicine in Medical College, Lucknow and also had some private practice.

15. Mr. Parekh relied upon the aforesaid Supreme Court judgment in support of his contention that: --(1) Income as given in Income-tax orders has to be accepted; and (2) maintenance for wife and daughter cannot exceed 25% and 15% of the assessed income. I cannot accept any of these contentions. The Supreme Court did not lay down the broad propositions being put forth by the learned counsel. The Supreme Court was considering case of a person who was primarily in service and as such did not interfere with the directions fixing a limit out of the total income accepted by the Income-tax department. Even otherwise, the wife and the daughter had not challenged the judgment of the High Court. The Supreme Court did not also lay down any such formula. The fixation of maintenance depends on the facts and circumstances of each case. Whether to accept or not to accept the income of a defendant as given in income tax assessment order, for purposes of determining the financial position of a defendant will also depend on facts and circumstances of each case. On this aspect also no broad proposition or hard and fast rule can be laid down. In one case income given in income-tax assessment order may be accepted and in another case, it may not be accepted. No rigid formula about that percentage of income should be fixed as maintenance can be laid down. In one case it may be 25%, in another it may be 50% or even less or more. The quantum of maintenance depends upon the position and status of the parties including financial position of the defendant as also on the reasonable demands of the claimants or any other relevant factor.

16. In this case, it is apparent that both parties belong to affluent class of society. The husband has free estate of millions of rupees. His yearly income as per income-tax records after giving deduction for income-tax payable is Rs. 48,000 / - though it is hard to believe it. The wife is a young lady of about 27 years and daughter is about 4 years of age and her school fee is more than Rs. 300/- per month.

17. Keeping in view the amount of free estate of defendant 1, the past life of the married parties and the families, scale and mode of their living, the age, habits, wants and class of life of the parties, day to day needs, cost of reasonable living, position and status of the parties and in short on totality of all the circumstances, a sum of Rs. 1400 / - per month for wife and a sum of Rs. 1100/ - per month for daughter, in my view would be just fair and reasonable amount of interim maintenance. The application for maintenance was filed on 25th January 1989 but for convenience sake I direct defendant I to make payment of maintenance with effect from 1st February 1989. Defendant I is directed to make payment of amount of maintenance for the period from 1st February up to August 1989, in terms of this order, within one week and is further directed to make payment of the amount of future maintenance to plaintiff on or before 10th of each month, starting from September 1989. Regarding I.A. 800/89 defendants have filed certain documents and at this stage, no further orders are necessary to be passed for the production of documents by them.

18. Accordingly, I.As. Nos. 799 and 800/89 are disposed of in the above terms.

19. Applications disposed ofaccordingly.

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