MAT.APP.(F.C.) 6/2019

9th January 2019

Petitioner Counsel: Ms. Deepti Khanna
Respondent Counsel:

Cases Cited :
Para 6: Jasbir Kaur Sehgal (Smt.) Vs. District Judge, Dehradun and Ors., reported at (1997) 7 SCC 7

JUDGEMENT

G.S. SISTANI, J.:-

1. Challenge in this appeal is to the order dated 22.11.2018 passed by the learned Family Court on an application filed by the respondent/wife under Section 24 of the Hindu Marriage Act (hereinafter referred to as ‘HMA’) by virtue of which the Family Court has awarded maintenance in the sum of Rs.15,000/- per month for the respondent/wife and the minor school going daughter.

2. The necessary facts to be noticed for the disposal of the present appeal are that the marriage between the parties was solemnized on 11.02.2010 at Gurgaon. One daughter was born on 05.01.2011 out of the said wedlock, who is staying with the respondent/wife. Parties have been residing separately since 02.12.2011. On 01.04.2015, the appellant/husband had filed a petition under Section 13(1)(ia)of HMA before the Family Court seeking divorce.

3. Counsel for the appellant submits that the Trial Court has lost track of the fact that the appellant/husband is only earning Rs.15,000/- per month and in this amount besides maintaining himself, he has to pay the house rent, electricity bill, mobile bill and other miscellaneous expenses. Counsel for the appellant further submits that the respondent/wife is employed, which is evident from the fact that she was filing the income tax return. However, post the marital discord, she stopped filing the income tax returns to conceal her true income. It is also submitted that the appellant/husband has suffered losses and in view thereof, his own mother has thrown him out of the house and he is presently residing in a rented accommodation.

4. Learned counsel for the appellant/husband further submits that the Family Court has overlooked the fact that the respondent/wife has suppressed and concealed her true income.

5. We have heard learned counsel for the appellant/husband and carefully examined the order passed by the Family Court. To decide the case on hand, it would be necessary to reproduce paras 15, 16 and 17 of the impugned order which read as under:
“15. Perusal of record shows that though 2-3 ITRs have been filed on record but they are prior to the date of marriage i.e. 2007 to 2010. Marriage was solemnized in 2010 and after 2010 there is only one ITR of 2010-2011 on record, on which also the word ‘cancelled’ is written and cross has been put. In such circumstances, the contention of the counsel for the respondent/applicant/wife bears force that the properties income shown in the ITRs belong to father of the respondent/applicant/wife and in order to save tax he shown the amount in the account of the respondent/applicant/wife.
16. Counsel for the non-applicant/husband stated that the Punjabi Rasoi which was being run by the petitioner has been closed down long in the year 2012 due to the disturbance created by the respondent/wife. Non-applicant/husband has however not filed any document to show that business of Punjabi Rasoi has been closed down long ago. Neither he has filed his ITRs not bank account statement for the last three years to this effect. The present case has been filed in the year 2015 and the bank account statement filed by the non-applicant/husband is only 2015 to 2017 and not prior to that, for which an adverse inference has to be drawn against him. Not only this, non-applicant/husband has filed neither his ITRs nor has filed any document to show that the business of Punjabi Rasoi has been closed down. Perusal of the account statement of the petitioner/husband shows that he is having debit card, of which no particulars have been given by him and there are regular cash deposits in his account. At the Indian Oil Corporation outlet he has paid some amount by card, which shows that he has some vehicle but he has not disclosed the same in his income affidavit.
17. From bare perusal of the income affidavits and the account statements filed by the parties it is clear that both the parties have tried to conceal their true income from the court. The non-applicant/husband himself has stated that he is doing property dealing business. He further stated that respondent has independent source of income like rental etc. from the properties etc. But neither he has filed any document to show that the properties belong to the respondent/wife nor any rent agreement etc.”

6. In the case of Jasbir Kaur Sehgal (Smt.) v. District Judge, Dehradun and Ors., reported at (1997) 7 SCC 7, the Hon’ble Supreme Court has recognized the fact that spouses in the proceedings for maintenance do not truthfully disclose their true income and therefore some guess work on the part of the Court is permissible. Further the Supreme Court has also observed that “considering the diverse claims made by the parties one inflating the income and the other suppressing an element of conjecture and guess work does enter for arriving at the income of the husband. It cannot be done by any mathematical precision”.

7. The present case is a perfect example of the parties not reflecting the true and correct income by the spouses before the Family Court. The Family Court has observed that the appellant/husband has failed to place relevant documents in support of his earning. The Family Court has also taken note of the fact that the wife/respondent was filing income tax return prior to her marriage and post marriage, the income tax return was filed only for one year. The Trial Court has also found favour with the explanation rendered on behalf of the respondent/wife with regard to filing of the income tax return on behalf of her father and not that she has been employed at any point of time. It is also not in dispute that the appellant/husband was running a restaurant in the name of ‘Punjabi Rasoi’. According to him, the same has been closed down, but no document has been placed on record by the appellant herein. Taking into consideration that the wife/respondent is only a class-12th pass woman and she is looking after her minor daughter, we find no infirmity in the order passed by the learned Family Court by which maintenance has been fixed at Rs.15,000/- per month for the wife and minor school going daughter. No ground is made out. The present appeal is devoid of any merit. The appeal alongwith CM APPLs 631-32/2019 is accordingly dismissed.