JUDGMENT
Usha Mehra, J.
(1) $THE petitioner husband sought divorce against the respondent wife on the ground of cruelty and desertion. The respondent wife moved an application in that petition under Section 24 of the Hindu Marriage Act (hereinafter called the Act). That application was dismissed because the learned Court came to the conclusion that wife has independent source of income. Hence not entitled to any maintenance. The revision filed against that order was also dismissed. However, in the review application filed by the wife, the learned Additional District Judge granted her litigation expenses.
(2) Thereafter the respondent wife due to illness was admitted in the MoolChand Khairati Ram Hospital. She submitted the medical bill for reimbursement to the employer of the petitioner. The employer of the husband had issued letter to the said hospital that medical bill be submitted directly to it for reimbursement. However, subsequently when the bill was not directly paid by the employer of the husband the wife made the payment and claimed reimbursement from husband’s employer. It is this claim of medical reimbursement which has been objected by the petitioner, inter alia, on the ground that since wife’s application for maintenance has already been dismissed being employed and earning, she is not entitled to medical reimbursement. At best she can opt for medical reimbursement from her own employer i.e., “The Statesman”. Her employer also has a scheme for medical reimbursement for its employees. Since the respondent was not living with the petitioner hence she cannot claim medical reimbursement from petitioner’s employer. There is a term and condition in the form stipulating that only dependent wife living with the petitioner could claim medical reimbursement. Admittedly respondent is neither dependent nor living with the petitioner hence she does not fulfilll the conditions of eligibility. Reimbursing the amount of Rs. 26,466.82 in such eventuality would be wholly unauthorised. It would amount to unjust expense on the public ex-chequer. Petitioner cannot give false declaration that the respondent was living with him. She has of her own volition separated since 1988. Therefore, her application for reimbursement of medical expenses should be rejected.
(3) By the impugned order dated 21st July,1995 the learned Additional District Judge allowed respondent’s application. He held that she was entitled to medical reimbursement from the employer of the petitioner husband. It is against this order that the present petition has been preferred. Petitioner has urged that if medical expenses of the respondent are reimbursed it would add to the tax liability of the petitioner. Secondly it would amount to mis-representation and fraud on the statute because in that case petitioner would be forced to give false declaration that the respondent is residing with him. Moreover, her application for maintenance having been dismissed, she is not entitled to medical reimbursement.
(4) I have heard Ms. Geeta Luthra for the petitioner and Dr.Aurbindo Ghose for the respondent. At the outset it must be made clear that so far as the objection of the petitioner that it will be a tax liability on him there is a circular issued by his employer dated 3rd September, 1993 clearly indicating nine hospitals having been accorded approval for exemption for medical benefits from perquisite value in respect of medical treatment or prescribed diseases or ailments by the Office of the Chief Commissioner of Income-tax. One of such hospital appears to be MoolChand Khairaiti Ram Hospital. The said circular is reproduced as under :
CIRCULAR
UNDER the provisions of Sub-clause (b) of Clause (ii) of Proviso to Clause (2) of Section 17 read with Rule 3A of Income Tax Rules (Income-Tax (19th Amendment) Rules, 1992), the hospitals are accorded approval for exemption of medical benefits from perquisites value in respect of medical treatment of prescribed diseases or ailments by the Office of the Chief Commissioner of Income-Tax. 2. In order to provide Income-Tax benefit as per the relevant provisions of the Income-Tax Act, it is necessary that the recognised hospitals of Sail are accorded approval by the Chief Commissioner of Income tax, New Delhi, for exemption of medical benefits from perquisite value in respect of medical treatment. Amongst the hospitals with which Sail has tie-up arrangement, the following hospitals have already been accorded exemption by the Chief Commissioner of Income Tax : (i) Mool Chand Kharaiti Ram Hospital (ii) Jaipur Golden Hospital (iii) Sir Ganga Ram Hospital (iv) National Heart Institute (v) Deepak Memorial Hospital & Medical Research Centre. (vi) Batra Hospital & Medical Research Centre. (vii) Holy Family Hospital. (viii) Dr. B.L. Kapoor Memorial Hospital (ix) Escorts Heart Institute and Research Centre.
(5) The response from the other tie-up hospitals is still awaited. Sail is continuously following up this matter with the remaining tie-up hospitals. (4) Meanwhile, it is brought to the knowledge of all concerned employees that in case the indoor treatment is taken from the Sail tie-up hospitals, even against direct payment, which have not been granted exemption by the Chief Commissioner of Income Tax from the relevant provisions of the Act, this may be subject to the levying of Income Tax as per the existing rules.
SD/-(RAM MOHAN) SR. Manager (PERS.)
(6) Para 4 of this circular says that in case indoor treatment is taken from the Sail tie-up hospitals even against direct payment which have not been granted exemption by the Chief Commissioner of Income-Tax from the relevant provisions of the Act, this may be subject to the levying of Income-Tax as per the existing rules. Too much stress has been laid by Ms. Geeta Luthra on this para to show ground that since the respondent made direct payment to the said Hospital, therefore, exemption granted by the Chief Commissioner of Income-Tax as per the circular would not apply. I am afraid this argument of Ms. Luthra has no force. Annexure ‘R-2’ dated 20th September, 1994, which is reproduced as under : ANNESURER-2 Steel Authority Of India (A Govt. of India Undertaking) PER/ESS/13509 20.9.94 The Medical Superintendent, Mool Chand Khairati Ram Hospital, New Delhi. Dear Sir, Mrs. Alpana Bhowmik, wife of Shri D. Bhowmik, Manager (Projects), (P. No. 13509) has already been admitted in your hospital for treatment. Necessary treatment may please be extended to her and your bill in this connection may please be sent to us for direct payment. Thanking you, Yours faithfully, sd/- (S.D. TEWARI) SR. Manager (P & A) (Remarks of Moolchand Hospital) Mr. S.D.-Tewari’s signatures are not in authorisation list. Only (1) Mr. Bhim Sen, (2) Mr. J.K. Chopra and (3) Ms. Kiran Nijhawan are valid signatures. sd/- (Illegible)
(7) Reading of this Annexure ‘R-2’ shows that Shri D.S. Tewari, Senior Manager (P & A), Steel Authority of India wrote to the Medical Superintendent of Mool Chand Khairaiti Ram Hospital that Mrs. Alpana Bhowmic, wife of the petitioner herein has already been admitted in the said Hospital for treatment. Necessary treatment b( extended to her and bill in this connection may be sent to the Sail for direct payment. In view of this admission by the employer of the petitioner that direct bill be raised on it, it does not lie in the mouth of the petitioner now to contend that the respondent wife made direct payment hence there would be tax liability. Reading of Annexure R-2 dated 20th September,1994 would show that the employer of the petitioner knew that the respondent had been admitted in the Hospital. Petitioner’s employer had given its consent to the hospital to raise the bill directly on the employer of the petitioner for direct payment. In view of this admission of the employer, the tax liability cannot be fastened on the petitioner. Trial Court rightly rejected this contention of petitioner. I see no force in this argument of Ms. Luthra as it is devoid of merits.
(8) Now turning to the objection that since respondent had not been living with the petitioner nor dependent upon him, hence she was not entitled to any medical reimbursement from the employer of the petitioner. This argument as observed by the Trial Court has no force. As far back as in 1986 parties decided that medical reimbursement would be from the employer of the petitioner. Accordingly, the employer of the respondent gave a ‘No Objection Certificate’ which is Annexure R-3 dated 6th October, 1986 filed on record. By virtue of that certificate respondent lost her right to get medical reimbursement from her employer. She was to get the medical reimbursement from the employer of her husband only. In view of this certificate which was issued at the instance of petitioner, the respondent was left with no alternative but to lodge complaint with petitioner’s employer. Argument of the petitioner that respondent is living separately hence not entitled to reimbursement has no force. She remains to be his wife till divorce. Divorce has yet not been granted. Her living separately can be termed temporary. Moreover, for the purposes of medical reimbursement being the wife of the petitioner she is dependent upon him, hence her claiming medical reimbursement by no stretch of imagination would amount to unjust enrichment or wastage of the public exchequer. So long as she remains the wife of the petitioner, she can exercise this right. Admittedly, she can claim only reimbursement from one source i.e., either from the employer of the husband or from her own employer. Since she has chosen to get reimbursement from the employer of the husband wherefrom she can be better compensated than her own employer, I see no reason why she should be deprived of the same. The argument of Ms. Luthra that her maintenance application was rejected, to my mind, that decision has neither any bearing nor any relevance with the relief claimed in this application. So far as granting of maintenance under Section 24 of the Act, there the wife had to prove that she was not having sufficient means to maintain herself. However, she had sufficient means then the husband cannot be burdened to maintain her, keeping this in view her application for maintenance was rejected because she was found gainfully employed. Hence not entitled to the same. But that principle will not apply so far as this application claiming medical reimbursement is concerned. Hence mere rejection of application under Section 24 of the H.M. Act will not effect the merits of this application.
(9) Turning to the objection of the petitioner that as per the certificate of the petitioner’s employer she has to reside with the petitioner, this argument is contrary to the facts on record. The Court below rightly concluded that since she has not been divorced, living separately in these circumstances by itself cannot deprive of this relief. Moreover, the petitioner has been protected by the Trial Court from being prosecuted for any mis-representation or fraud being committed on the employer. In the impugned order the Trial Court has in no uncertain words observed that the employer of the husband would not take any departmental action against the petitioner in respect of his giving declaration on the form as required by the employer for the grant of medical reimbursement. Therefore, this objection of Ms.Luthra has also no force because Trial Court took due precautions to safeguard the petitioner against any of his apprehensions.
(10) I also find no substance in the contentions of Ms. Luthra when she urged that as per Section 17(2) of the Income Tax Act, 1961 any sum paid by the employer of the petitioner in respect of any expenditure actually incurred by the employee on his medical treatment or treatment of any member of his family it would be taxable. Reading of this section shows that it has no relevancy in view of the circular issued by the employer of the petitioner. Reading of the circular issued by Sail it is apparent that exemption has been granted by the Chief Commissioner on such expenditure. If direct payment is made to the hospital then no tax liability can he fastened on the petitioner. Since in this case the employer through its Senior Manager admitted that the bill be raised by the hospital on the employer directly for direct payment hence it cannot be said that employer is exonerated from its liability. In fact respondent wife was forced to make payment of the bill because of technical fault of the petitioner’s employer. Hence if now employer reimburses the bill no tax liability would be fastened on the petitioner. That tax liability would be discharged by the employer.
(11) FOR the reasons stated above, I find no infirmity in the impugned order. The petition is accordingly dismissed.