* IN THE HIGH COURT OF DELHI AT NEW DELHI
+Crl. M.C. No. 4066 of 2009 & Crl. M.A. No. 13807/2009
%
01.09.2010
AMIT KHANNA ... Petitioner
Through: Mr J.C. Mahindro, Advocate
Versus
PRIYANKA KHANNA & ORS. ... Respondents
Through: Respondent No. 1 in person
Mr Sunil Sharma, APP for the State
Date of Reserve: 23rd July, 2010
Date of Order: 1st September, 2010
AND
+Crl. M.C. No. 1416 OF 2010
%
.2010
PRIYANKA KHANNA ... Petitioner
Through: In person.
Versus
STATE ... Respondent
Through: Mr Sunil Sharma, APP for the State.
Mr Sunil Sharma, APP for the State
Date of Reserve: 23rd July, 2010
Date of Order: 1st September, 2010
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.
JUDGMENT
1. By these petitions petitioners, husband and wife have assailed order dated
26th October, 2009, passed by learned Additional Sessions Judge (ASJ) in appeal.
Ms Priyanka Khanna had moved an application before learned Metropolitan
Magistrate (MM) under Section 12 of Protection of Women from Domestic Violence
Act and also made an interim application for residence, protection and maintenance.
Learned MM considered the income of the husband for the financial years 2004-05,
2005-06, 2006-07 and 2007-08 and found that annual gross income of the husband
for the latest financial year i.e. 2007-08 was ` 3,47,550/- (before deduction of tax).
She considered that gross monthly income of the husband was between ` 28,000/-
and ` 29,000/-. She awarded monthly maintenance of ` 10,000/- to the wife. Apart
from that, she also awarded ` 5,000/- per mensem (p.m.) as rent for residence.
Thus, she awarded ` 15,000/- p.m. to the wife. In appeal, the learned ASJ enhanced
the house rent payable to the wife from ` 5,000/- p.m. to ` 15,000/- p.m. and
maintenance from ` 10,000/- p.m. to ` 30,000/- p.m., although, the husband had
placed before the learned ASJ his latest salary slip showing gross monthly income of
` 41,000/-. This enhancement was done by the learned ASJ on the ground that
husband was a man of status and owner of vast movable and immovable properties
and it was a matter of common knowledge that parties generally conceal their actual
income and do not show their real income in the Income Tax Returns. The
respondent-wife was alone in this world. She had lost her job and was unemployed
and was living with her parents and dependent on them. It was also observed by the
learned ASJ that it was very difficult to find a suitable residence by paying ` 5,000/-
p.m.
2. It is noteworthy that a petition for divorce was filed by the husband which is
pending before the court of ADJ and the learned ADJ after considering the material
vide order dated 16th September, 2008, granted to the wife a monthly maintenance of
` 25,000/- from the date of filing of application under Section 24 of Hindu Marriage
Act till the disposal of the case and awarded ` 10,000/- towards litigation expenses.
3. It is evident from the order passed by the learned ASJ that he has not
enumerated the vast movable and immovable properties owned by the husband.
Mere allegations made by the wife that husband was a man of status and had vast
movable and immovable properties would not give jurisdiction to the Court to pass an
order of maintenance beyond the means of the husband. When allegations are
made by the spouses about the vast movable and immovable properties of other,
even for passing an interim order the allegations must be substantiated by some sort
of documentary evidence. The properties existing in the name of sister-in-law,
mother or father cannot be considered to be the properties of the spouses. If such
properties are considered as properties of husband, then property existing in the
name of father of the wife, mother of the wife or brother or sister of the wife could
reflect her status and income and the courts can think that a wife has sufficient
properties and she does not need maintenance.
4. After attaining self sufficiency and being employed, a man’s own income has
to be the basis for fixing maintenance for his dependants whether wife, parents or
children. Properties of his brothers or parents cannot be a basis for fixing
maintenance. Status of a man is not determined from the status of his brothers or
parents. There may be many cases where a man is egoistic and does not take help
from his rich parents or rich brother and does not maintain same status which his rich
brother and parents may maintain.
5. In the present case, the marriage between husband and wife was not a
marriage arranged by respective parents. It was a love marriage after courtship of 8
years and I do not think that this courtship or love was there between the parties
before marriage because of the status of brothers of the husband or status of parents
of the husband. It has to be presumed that love was with the person and not with the
property and it is the income and wealth of the husband which is to be looked by the
Court for deciding proper maintenance. When the income of the husband was `
41,000/- p.m., granting maintenance plus rent of ` 45,000/- p.m., under no
circumstance is justified. I find the order passed by the learned ASJ unjustified and
contrary to settled legal preposition. The order of learned ASJ is hereby set aside.
6. Since the income of the husband is now ` 41,000/- p.m. without deducting tax
and after deducting tax it would be around ` 38,500/-, a maintenance of ` 15,000/-
p.m. and rent of ` 5,000/- p.m. would be the just maintenance. This would be
payable from the date of order of the Appellate Court. Prior to the date of order of
the Appellate Court, since the income of the husband was only ` 29,000/- p.m., the
order of the Court of Metropolitan Magistrate would prevail. However, this
maintenance and amount towards rent is not over and above the maintenance
awarded by the matrimonial court, neither this order shall affect the order passed by
ADJ granting maintenance @ ` 25,000/- p.m. The amount payable under this order
shall be adjustable against other maintenance order.
7. Both petitions stand disposed of in view of my above finding and conclusion.
SHIV NARAYAN DHINGRA, J.
SEPTEMBER 01, 2010
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