Delhi High Court: An appeal was filed by the husband under Section 19 of the Family Court Act, 1984 read with Section 151 CPC assailing the order dated 25-10-2021 passed by the Family Court whereby the husband has been directed to pay maintenance of Rs.50,000 to respondent-wife and children, from the date of filing of the application till final disposal of the petition along with rent, electricity, water and grocery bills as well as educational expenses of both the children. A division bench of Suresh Kumar Kait and Neena Bansal Krishna, J., held that the Trial Court erred in calculating the true income of the appellant and directed the husband to pay fixed interim maintenance of Rs.50,000 per month to his wife and younger child (son) along with his educational expenses.
The appellant-husband in the present appeal has averred that the conjugal relationship was over in June, 2008 and since the year 2011, the parties are not even on talking terms. The appellant-husband has averred that in April, 2014, he filed a case under Section 13(1), (1a) and (1b) of the Hindu Marriage Act, 1955, seeking dissolution of marriage by a decree of divorce on the ground of cruelty and desertion before the Family Court. As an off shoot, the respondent-wife moved an application under Section 26 of the Protection of Women from Domestic Violence Act, 2005 claiming destitution and direction to the appellant to pay rent, water and electricity charges.
After few rounds of litigation, the Court vide order dated 25-10-2021 (impugned order) held that the appellant’s total income was Rs.2,31,000/- per month and directed him to pay a sum of Rs.50,000/- per month to respondent-wife and children along with the payment for rent, water, electricity, grocery bills and educational expenses. Thus, he was directed to pay approximately Rs.1,30,000/- per month towards maintenance of respondent-wife and his children.
The Court noted that the Family Court failed to consider that besides matrimonial litigation, the appellant-husband has also been facing arbitral proceedings and has other pending litigations in respect of his work, which is a bounden liability to be met with. While arriving at the conclusion that wife has no source of fixed income, the Family Court ignored the aspect that the husband has also been facing financial crunch and has liabilities to his credit. There is no dispute to the legal position that the spouse is liable to maintain the other spouse and children, however, equity shall be maintained only if one is directed to pay interim maintenance to his/her capacity.
The Court further noted that there is categoric admission by the wife of spending lavishly on her travel and tours and leading a luxurious life and she has also claimed Rs.60,000/- per annum towards tours and travels, which shall be at the expense of the husband. The elder son of the parties is stated to have already completed his graduation and according to the husband, he is running his firm in the name and style of Mystream Futuretech Pvt. Ltd, which has not been disputed by the wife. The younger son of the parties is said to be still studying and the husband is bearing his educational expenses. The respondent-wife is living in rented accommodation but has a residential house in Greater Noida where she can either live or fetch rental income therefrom to meet her expenses; and second, residential plot in Dwarka in her name.
The Court also observed that the Trial Court failed to note while quantifying the income of the husband based on different businesses that such businesses have been closed long back. Thus, at best, the income of the appellant which could have been taken by the trial court is Rs.2,31,000, before payment of tax etc., and has been in error to hold that the appellant is additionally earning Rs.1.5 lacs from his printing business. Besides maintaining his wife and children, the appellant has to bear his own expenses and meet his liabilities and also has to take care of his old, aged ailing mother, who is fully dependent upon him.
Thus, the Court directed the husband to pay fixed interim maintenance of Rs.50,000/- per month to his wife and younger child (son). In addition, the appellant is also directed to pay the educational fee of the younger child/son of the parties, which shall be directly remitted to the Institute/College where he is studying.
[AS v DS, 2023 SCC OnLine Del 5689, decided on 14-09-2023]
Advocates who appeared in this case :
Ms. Anita Sahani, Mr. Tanuj Gulati & Mr. Shivam Garg, Advocates with appellant in person
Ms. Pratiti Rungta & Mr. Sudhir Sinha, Advocates with respondent in person
