Civil Revision No. 2531 of 2008 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
1. Civil Revision No. 2531 of 2008
Date of decision: 25.03.2009.
Shri Rajiv Chanana
Petitioner
Versus
Smt. Gauri Chanana ...Respondent
2. Civil Revision No. 2846 of 2008
Mrs. Gauri Nagpal Chanana
Petitioner
Versus
Mr. Rajiv Chanana ...Respondent
CORAM: HON'BLE MR. JUSTICE S.D.ANAND.
Present: Mr. Akshay Bhan, Advocate for the petitioner
in Civil Revision No.2531 of 2008 and for the
respondent in Civil Revision No.2846 of 2008.
Mr. Hemant Bassi, Advocate for the respondent
in Civil Revision No.2531 of 2008 and for the
petitioner in Civil Revision No.2846 of 2008.
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S.D.ANAND, J.
The controversy between the warring couple is with
regard to the validity or otherwise of the impugned order dated
4.4.2008 passed by the learned Additional District Judge, Panchkula
directing the fixture of a sum of Rs.70,000/- (Rs.25,000/- for
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estranged wife, Rs.20,000/- and Rs.25,000/- for Utkarsh and
Nishkarsh respectively who are concededly siblings of each other
and were born to the respondent-wife from the loins of the petitioner-
husband) as maintenance pendente-lite.
The amount was ordered to be payable with effect from
1.12.2007. While quantifying the amount aforementioned, the
learned Trial Judge also observed that the amount awarded in the
proceedings under Section 125 Cr.P.C. would be inclusive of this
amount. In the course of the application itself, the respondent had
made an averment that she would withdraw the plea under Section
125 Cr.P.C in case maintenance pendente-lite comes to be awarded
by the learned Trial Court in the proceedings under Section 24 of the
Hindu Marriage Act ( hereinafter referred to as “the Act”).
The respondent-wife applied for the grant of litigation
expenses and maintenance pendente-lite for self and two minor sons
(concededly begotten by her from the loins of the petitioner-husband)
who are putting up with her. The maintenance pendente-lite applied
for was quantified at Rs.5 lacs in toto. The respondent-wife further
claimed entitlement to that amount with effect from January, 2005 i.e.
with effect from the date the couple separated. Besides it, she
applied for litigation expenses to the tune of Rs. 5 lacs + a sum of
Rs.55000/- per appearance as counsel fee.
While averring that she has no means of sustenance for
self and her two minor sons, she conceded that interim maintenance
at the rate of Rs.25000/- in her favour and in favour of her two
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children had been awarded in the proceedings under Section 125
Cr.P.C.. That amount was averred to be meager in the context of
her requirements and that of her sons, both of whom are studying in
St.John School, Sector-26, Chandigarh. The elder child is a student
of 10th standard; while the younger child is a student of 6th standard.
In order to quantify the amount required for her children, it was
averred that their monthly expenditure comes to Rs.10,000/- (at the
rate of Rs.5000/-). Besides this, the averment proceeded, money is
also required for purchase of school uniform, stationery,
transportation and participation in other cultural activities including
out station educational trips. Apart therefrom, the elder son is a
patient of chronic Asthma and a sum of Rs.10,000/- per month was
claimed “for his adequate medical care”. For the younger child, the
averment made was that he requires specialised personal coaching
by a private tutor as he is suffering from “NYSTAGAUM” a disease
which blunts his vision to see blackboard. It also restricts his
movement in the open because he cannot face the sun. He is also
on medication and his special spectacles cost Rs.10,000/- per piece.
For the moment, he has only one spectacles. He should otherwise
have two with him at a time because, as a child, there is every
possibility of his breaking or misplacing the same.
While averring that she is putting up in a rented
accommodation ( 6381 B, Rajvee Vihar, Mani Majra, AWHO
Apartments), the respondent-wife pointed out that the appellant-
husband is financially very well off and leads a luxurious life. During
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the happier times, there was a car assigned to drop the children at
the school and to bring them home as well. There was an Art
Teacher who used to coach the children thrice in a week. An
Aerobics-cum-Yoga instructor had been engaged to assist the
younger son in his exercises in order to enable him to make up for
the lack of out door activity. There were two full time maid as well to
look after the respondent-wife and her children. The appellant used
to present costly gifts like jewellery items and clothes to the
respondent on days of festivals and anniversaries etc. The appellant
retained all these costly gifts etc. when she was turned out of the
matrimonial house. In order to support the averment that the
appellant-husband is the financially well off and had been leading a
luxurious life style, the respondent-wife indicated a number of
instances when she and her children were taken by the respondent
overseas and also inland visits to place like Bombay, Goa, Jai Pur,
Udaipur and Shimla. The out-of-country sojourns included visits to
Singapur, Malaysia, Kathmandu, Nepal, London, Amsterdam,
Hongkong, Indonesia and Switzerland. It was also averred by the
respondent-wife that appellant-husband had been hosting functions
at costly local Restaurants, hotels and clubs like Chandigarh Club,
Pizza Hut, Jail Rock House, Hotel Mountview, Whispering Willows
and Hot Millons. It is also the averment that the respondent had
earlier owned and possessed the following four cars:-
a) Hyundai Santro-Regn. No. CH-03-D-3801
b) Toyota Corolla CH-03-L-5230
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c) Ceilo-HR-03-B-9672
d) Ford Ikon.
The appellant-husband did not deny that he was
leading a comfortable life but he denied following a fabulously rich life
style. Qua the Hyundai Santro and also Ford Ikon cars, he
averred that it is his younger brother Sandeep Chanana who is
registered owner thereof. Qua Toyota Corolla and Ceilo car, he
averred that those are owned by M/s Jesa Ram Vishan Narain. He
did otherwise concede that he is a partner (to the extent of 1/3
share) in that firm, the other partners being his mother and younger
brother Sandeep Chanana. The appellant did not dispute having
undertaken most of the foreign trips in the company of the
respondent-wife and children but averred that those were for an
educational purpose. He did not dispute having held functions at the
local clubs etc. but denied that the expenditure averred by the wife
had been incurred thereon. The plea taken by him was that very
small indicated amounts were spent on those parties. He conceded
that a one kanal residential house (bearing No.511 P, Sector 6,
Panchkula) is in his name but averred that it, infact, is owned by his
mother Mst. Shakuntala Chanana and he is only Benami holder
thereof. Qua another one kanal house (bearing No. 825 Sector 8,
Panchkula), it was alleged that it is owned by his mother and younger
brother. He, however, denied that the house aforementioned had
been inherited from his father. It was alleged, in the context, that
the above indicated house was purchased in the year 1988; whereas
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the father of the appellant had died in the year 1986. Qua the title of
industrial plot ( No.421, Industrial Area, Phase II, Ram Darbar,
Chandigarh), it was averred that Parkash Mills is a sister concern of
M/s Jesa Ram Vishan Narain which is being run over there. He also
conceded being a member of PCA Mohali and Chandigarh club. He,
however, denied being a member of Sterling Resort. He conceded
that he does travel by AIR but asserted that he travels by economy
class. He did not dispute that one of his sons is suffering from
chronic asthma disease. Qua the other child, the averment (that
child aforementioned was also ailing) was denied. Qua the fact that
respondent and her children are residing in rented accommodation, it
was averred that she was earlier putting up at her natal house and
she herself opted to shift to the rented accommodation. The further
averment otherwise was that “however, aforesaid minor sons are
always welcome to live with the petitioner at House No. 511P, Sector
6, Panchkula and to enjoy the same status which they have been
enjoying before they were taken away by the Respondent.”
The learned counsel for the appellant argued, at the very
outset, that the plea under Section 24 of the Act is not competent in
view of the fact that respondent-wife had herself agreed to accept a
sum of Rs.25,000/- as maintenance pendente-lite for self and her
two children in the proceedings under Section 125 Cr.P.C. Once the
respondent had herself consented to that quantification of the
amount payable as maintenance pendente-lite, the argument
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proceeds, she cannot be heard to re-agitate the aspect of
quantification.
The plea raised is denuded of merit. Annexure P-2 is a
true copy of the statement made by the counsel for the parties in the
context on 3.1.2007. It is reproduced hereunder for facility of
reference:-
“Statement of both the parties who have agreed upon a
sum of Rs.20000/- P.M. interim maintenance and are
ready to give the same as per the court order. Petitioner
i.e. all the three petitioners are ready to take a sum of
Rs.20000/- P.M. and the respondent is ready to pay the
said amount until the final decision is arrived at.”
On that basis, the learned Trial Court passed the
following order:-
“In view of the statement given by the parties the
application for interim maintenance is disposed in terms
that the petitioner no.1 shall be entitled to Rs.10000/- per
month as maintenance and petitioners no.2 and 3 shall
be to Rs.5000/- each per month i.e. total Rs.20,000/- per
month from the date of application. A sum of Rs.50000/-
by cheque has been paid today, which is taken by the
counsel for the petitioners, subject to realization. Now the
case is adjourned to 18.1.2007 for payment of arrears of
maintenance by the respondent and reconciliation amonst
the parties.”
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It would be apparent from a perusal of the statement and
order quoted above that the parties had agreed upon a sum of
Rs.25,000/- per month only as an interim maintenance. By the very
nature of things, any consented fixture of interim maintenance
cannot, by any stretch of interpretation, disable the respondent-wife
from raising a plea for the award of (higher) maintenance in the
proceedings under Section 24 of the Act.
It is apparent, from a conjunctive perusal of the pleadings
of the parties, that the appellant-husband did not dispute the fact that
a son of the parties is suffering from chronic Asthma; while the other
is suffering from “NYSTAGAUM” disease. The only difference of
opinion is qua the seriousness of ailment of those children. The
respondent-wife made a presentation of the fact that those diseases
are of serious character. The appellant-husband presented those in
a diluted form. Nonetheless, it is apparent that the appellant-
husband conceded that two children of the parties are not in normal
state of health and they do require medication etc. for which extra
expenditure is to be incurred.
Learned counsel for the petitioner-husband argued that
the impugned order passed by the learned Additional District Judge,
Panchkula, deserves to be negatived in view of the fact that the
Court had not taken into consideration the income tax liabilities of the
petitioner and that the Trial Judge also ignored from consideration
the fact that the respondent-husband is required to pay instalments
of certain loans which he had raised from a nationalised bank.
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Learned counsel for the appellant, then, argued that the
impugned fixture (Rs,70,000/- per month as maintenance pendente-
lite) is apparently on the higher side in view of the fact that the annual
income of the husband was much lesser than averred by the
respondent-wife. In support of the advocated view, reliance was
placed upon the Income Tax Returns, copies whereof were placed on
record. As per Annexure P-7 (copy of Income Tax Return), the
headwise income earned by the appellant-husband was given as
under:-
1. Income from the salary : Rs.1,20,000/-
2. House property : RS. 85,000/-
3. Business income : Rs.1,39,200/-
4. Income from other sources : Rs. 39, 234/-
5. Interest from M/s Jessa Ram Vishan Narain Rs.17618/-
It would be relevant to notice hereunder certain
averments made by the appellant-husband in the course of the reply.
He did concede having presented valuable gifts to the respondent-
wife on her birthday and on their marriage anniversary.(“However,
petitioner did present gifts in the shape of a gold set, valuable saree,
camera, and a watch on different occasions such as on marriage
anniversary and her birthday but the total valuation thereof does not
exceed more than Rs.2,00,000/-.”) He otherwise proceeded to aver
that “she had removed from there all jewellary, valuable clothes, 6
years National Saving Certificates, very valuable watches make
Omega Constellation & Patak Philippe and other valuable household
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articles all of which are with her.” He conceded that he is a man of
means and has been undertaking inland and frequent overseas
travel with the family (“However, petitioner is a man of means but
the regular travels which he had initially with the respondent
whereafter with the respondent & Master Utkarsh Chanana, elder
son of the petitioner & the respondent, whereafter, with the
respondent, Master Utkarsh Chanana, elder son of the petitioner and
the respondent, were with the idea of getting them educated,
resultantly they were more of the nature of educational trips rather
than pleasure trips.”), he also conceded that he had taken the
respondent to Bombay and Goa for honeymoon. The averment was
that the couple stayed in hotel Sea-Rock for two days at the former
place; whereas at the latter place, the couple stayed for five days in
Dalmia Resort “at the courtesy of Shri Munish Khurana, brother-in-
law of the petitioner, who is a member thereof.”). That the parties
visited Singapore and Malaysia in May, 1991 and that they also paid
a four days visit (by Air) to Kathmandu in the year 1993-94 was
conceded by the appellant-husband who also claimed to have visited
London and Amsterdam for a spell of 12 days in the company of the
respondent and the elder child of the parties. That the parties and
their two children paid five days long visit to Hongkong in the year
1998 and that they visited Singapore and Indonesia in December,
2001 was also conceded by him. He proceeded to aver that he had
brought the respondent and the two children of the parties to
Malaysia-Langkawi-Pennang, Singapore. He added that they had
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gone there on Cruise. That the petitioner brought the wife and two
sons of the parties to Switzerland and London in the year 2004 was
also conceded by him. In that very context, the appellant-husband
made the following averments:-
“However, before leaving for Switzerland & London in
2004petitioner had on 14.6.2004, Respondent purchased
foreign currency of Rs.1,98,916/- from M/s Paul Merchant
Ltd. S.C.O. No. 829-830, Sector 22-A, Chandigarh and on
15.6.2004 petitioner purchased foreign currency of
Rs.4,04,668/- from M/s Paul Merchants Ltd., S.C.O. No.
829-930, Sector 22-A, Chandigarh.”
He also conceded the get togethers organised by him at
Chandigarh Club in 1992 and another time in the year 1995. The
holding of a function at Hotmillion in the year 1996 was also
conceded by him. He only differed with the respondent-wife on the
number of invitees and the expenditure incurred thereon.
There is force in the plea on behalf of the respondent-
wife that the Income Tax Returns filed by an individual do not
necessarily reflect the actual annual professional intake. However, if
we strictly go by the amount shown as income in the account books,
it would be impossible to fathom how exactly he could frequently
undertake foreign trips in the company of the respondent-wife and
their children. The conceded facts (quoted in an earlier part of this
order) are a clear pointer to the effect that the appellant-husband is
leading a luxurious life style and that his income tax return is not
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reflective of the truthful factual income.
In the totality of the circumstances of the case, the finding
recorded by the learned Trial Court with regard to the quantification
of the entitlement of the respondent-wife (for self and her two
children), and reasoning noticed in support thereof, cannot be
faulted on any score.
Though the averment made by the respondent-wife to
the effect that she has been forced to live in rented accommodation
with the two children of the parties was denied by the appellant-
husband who alleged that it was she only who left the matrimonial
house in the company of her children, it is apparent that she is
presently putting up in a rented accommodation. By the very nature
of things, the wife and the children of the parties do require a shelter
for protection and safe living. Both the children of the parties are
studying in reputed convent school. The wife and the children are
entitled to retain that very level of economic existence as they were
enjoying when all was well in the family.
An able bodied husband is legally bound to provide for
his wife and children who have no means of sustenance. The
provision to be made has to include the living arrangement and other
facilities in day-to-day life which they were enjoying during happier
times when the family was united. The accurate equivalence may be
a far cry but the estranged spouse and the progeny can legitimately
claim entitlement to a near equivalence. The adjudicatory exercise in
the context has to be an endeavour aimed at that object and that is
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what the learned Trial Judge did in this case with care. The exercise
is affirmed by this Court.
In the light of the foregoing discussion, the petition filed
by the husband is held to be denuded of merit and is ordered to be
dismissed. The amount of maintenance pendente-lite shall, however,
be payable with effect from the date of the application.
In that view of things, the respondent shall not be entitled
to any amount of maintenance in the proceedings under Section 125
of the Code of Criminal Procedure.
The learned counsel appearing on behalf of the
petitioner-respondent requests for the issuance of a direction to the
learned Trial Court to dispose of the petition itself on priority. The
learned counsel appearing on behalf of the respondent-wife has no
objection to the allowance of the request. It is ordered accordingly.
The learned Trial Court shall dispose of the trial itself on an early
date by giving priority over the other files.
March 25, 2009 (S.D.Anand) Pka Judge
