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DELHI HIGH COURT
Gita Mittal and I.S.Mehta, JJ.
Shalu —Appellant
versus
Sandeep Soni —Respondent
Mat.APP.(F.C.) No.125 of 2014 & CM No.17392 of 2014
Decided on 3.2.2016
For the Appellant:Mr. Ashwani Kumar Sood and Col.S.K. Varma, Advocates
For the Respondent:Mr. N.U. Ahmed and Mr. Jeewan Chandra, Advocates with respondent and his mother
IMPORTANT POINT
Maintenance is not a bare sustenance and its constituents would include reasonable expenses of accommodation, food, social obligations, transportation, medication, toiletries, clothing etc.
Headnote:(A) Hindu Marriage Act, 1955—Section 24—Grant of maintenance pendente lite and litigation expenses—Divorce suit pending between parties—Wife would be entitled to be maintained in same standard of living to which she was exposed in matrimonial home—However, it has misdirected itself while considering incomes of parties— husband is an able bodied young man of about 35 years—Respondent and his family have clearly admitted/established family affluence, ownership of immoveable properties and monetary assets in their pleadings— Respondent husband is a business man who has not disclosed his real business or its extent, be it in past or present as well as his assets—Mother of respondent is unemployed and a housewife— Maintenance is not a bare sustenance and its constituents would include reasonable expenses of accommodation, food, social obligations, transportation, medication, toiletries, clothing etc. which would enable applicant/spouse to live in same standard of living to which she was accustomed while living in matrimonial home—Wife in instant case is residing in Sonepat with her parents—She is entitled to independent residence and protection of privacy—Appellant deserves to have been awarded maintenance @ Rs.15,000/- per month with effect from date when she had filed application under Section 24—Appellant would be paid a sum of Rs.25,000/- towards litigation expenses—In addition, she would be entitled to travelling costs of Rs.1,000/- for every date on which she attends trial court—Appellant would be additionally entitled to litigation expenses of Rs.15,000/- for present appeal—In addition, she would be entitled to reasonable travelling costs of travel from Sonepat to Delhi to attend court on every date which would be at rate of Rs.1,500/-. (Paras 16, 20, 22, 23, 29, 50 to 55)
(B) Evidence Act, 1872—Section 106—Burden of proof— irrespective of the onus or the burden of proof, a party in possession of the best evidence, is bound to produce the same on record. (Para 32)
Result: Appeal allowed.
Gita Mittal, J.—The present appeal has been filed assailing the order dated 22nd May, 2014 passed by the Principal Judge, Family Courts, Karkardooma Courts, Shahdara, Delhi dismissing the application of the appellant-wife under Section 24 of the Hindu Marriage Act, 1955 (‘HMA’ hereafter for brevity).
We have heard learned counsel for the parties. We have also perused the record of the trial court which has been placed before us.
2. The undisputed facts giving rise to the present petition are that both parties to the present appeal were divorcees at the time of their marriage on 27th June, 2010. The scale of the marriage can be discerned from the admitted fact that the marriage was performed at the Richi Rich Banquet Hall on the Ring Road, Shalimar Bagh, New Delhi.
3. The appellant-wife claims that on 16th August, 2010, she was thrown out of the matrimonial home. On 5th September, 2012, the respondent-husband filed a petition under Section 13(1)(ia) & (ib) of the HMA seeking dissolution of the marriage of the parties by a decree of divorce.
4. The appellant has filed a written statement contesting the claim of the respondent. Apart from the written statement, on 14th December, 2012, the appellant-wife filed a petition under Section 24 of the HMA seeking grant of maintenance pendente lite and litigation expenses on the plea that she was unemployed and without a source of livelihood.
5. This application was contested by the respondent-husband by a reply dated 5th March, 2013. In this reply, the respondent took a blanket plea that he was under depression and was ‘dependent on his parents’. At the same time, he made a bald claim that the appellant-wife was a trained beautician and running a beauty parlour and earning more than Rs.15,000/- per month; that the wife had employed two trained beauticians, to whom she was paying Rs.6,000/- per month and that she did not need any maintenance.
6. This reply was supported by an affidavit of the husband of the same date. In the first column under ‘personal information’, the respondent-husband had disclosed the particulars of past occupation as “helping hand with father”. So far as members of the family dependent on him is concerned, the respondent stated that “there are three members in the family of father and all are dependent upon the father of the petitioner who is hardly earning Rs.7,000/- per month”. The respondent-husband admitted that he was residing in the “house of the mother” and maintaining a landline telephone no. “65391487”. The respondent-husband also admitted that his father was doing the “work of printing”.
7. In the affidavit of income, assets and liabilities dated 28th May, 2013 (and notarized on 19th August, 2013) filed by her, the appellant-wife had staunchly disputed the assertion that she was running a beauty parlour. She disclosed that she was residing with her parents and married brother at 312/22, Durga Colony, Near Sonipat Stand, Rohtak (Haryana). The affidavit contained an unequivocal declaration that she was not employed and was not earning any amount. The appellant-wife had also disclosed that though she was a graduate but she had never been employed and that she had neither any independent source of income nor was having any assets in her name and that her parents were bearing all her expenses. These assertions were additionally supported in her additional affidavit dated 16th May, 2013.
8. In yet another affidavit dated 20th January, 2014 filed by the appellant-wife, she had disclosed the following :-
“3. That as per the knowledge and information the petitioner is running a business of printing press and publication house at Shahdara Delhi. He is owner of movable and immovable properties and has given some property on rent also, the detail of the same are not in the possession of the deponent. But the reference of the said properties has been mentioned in para 6 and 7 of the affidavit by way of evidence dated 29.01.2013 filed by the father of t
