Friday, August 30, 2013

man with crores turnover +properties limits interim maint to JUST Rs 6500 pm!! okay that was 2005!! THOSE YEARS !!! ALSO good discussion when to start interim maintenance from ? time of applicator or date of order


man with crores turnover +properties limits interim maint to just rs 6500 p.m. - okay that was 2005!! THOSE YEARS !!! 

ALSO good discussion when to start interim maintenance from ? time of applicator or date of order 


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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
 
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CASE FROM JUDIS / INDIAN KANOON WEB SITE 
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Madras High Court
  
Dipak Mehra vs Bindiya Hillary Mehra on 24 May, 2005
  
Equivalent citations: I (2006) DMC 512, (2005) 3 MLJ 256
  
Author: S S Hussain
Bench: S S Hussain
  
ORDER
  
S. Sardar Zackria Hussain, J.
  
1. The husband is the revision petitioner and the respondent is the wife. The revision is filed challenging the correctness of the maintenance amount ordered to the respondent payable by her husband, the revision petitioner in I.A. No. 1405 of 2001 in O.P. No. 1327 of 2001 on the file of the II Additional Family Court, Chennai, as per order dated 30.4.2004.
  
2. The revision petitioner filed the main O.P. No. 1327 of 2001 for divorce under Section 13(1)(ia) and (ib) of Hindu Marriage Act on the ground of cruelty and desertion. The said petition was filed in August, 2001. The main O.P. was resisted in the counter filed by the respondent, the wife in August, 2002.  http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/  
  
3. During the pendency of the main O.P., the respondent/wife filed the petition I.A. No. 1405 of 2001 on 15.10.2001 claiming maintenance of Rs. 6,500 per month, besides Rs. 25,000 towards medical expenses and Rs. 25,000 towards litigation expenses.
  
4. The Family Court considering the objections raised in the counter and also the Exs.P-1 to P-8 marked on the side of the respondent/wife and Exs.R-1 to R-5 marked on the side of the revision petitioner/husband, arrived at the conclusion that the respondent/wife is entitled to Rs. 5,000 per month as interim maintenance from the date of the petition I.A. No. 1405 of 2001, besides Rs. 10,000 towards litigation expenses, in view of the fact, the revision petitioner/husband was paying Rs. 6,500 per month till June, 2001 towards maintenance to his wife, the respondent and to the son by name Suhail born to them. The order is under challenge in this revision.
  
5. The learned Counsel for the revision petitioner/husband mainly attacked the order of the Family Court that the maintenance as fixed by the Family Court is on the higher side. It is also submitted by the learned Counsel that the respondent has failed to prove the income earned by the revision petitioner and in fixing the maintenance amount, the Family Court has not considered the income earned by the respondent and that the respondent travelled abroad eight times and also not considered that the respondent acted in the Tamil Film "Anbae Sivam". The learned Counsel further submitted that despite the application filed by the revision petitioner for production of the income tax records relating to the years 2002-2004, the Family Court rejected the said petition as belated and therefore, the Family Court is not correct in fixing the maintenance amount at the rate of Rs. 5,000 per month to the respondent on the basis that Rs. 150 per day is required and monthly Rs. 4,500 to which a sum of Rs. 500 is added to meet her unforeseen exigencies. Finally, the learned Counsel submitted that in any event, the Family Court should have fixed the maintenance payable only from the date of the order and not from the date of the filing of the petition I.A.No. 1405 of 2001. The learned Counsel also relied on the following decisions:  http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/  
  
(1) Vinay Kumar v. Smt. Mithileshbai, 1995 (2) DMC 133 (Madhya Pradesh High Court), in which it is held thus:
  
"The maintenance allowance is normally granted from the date of the order. A special reason is, however, required to be recorded for granting maintenance allowance from the date of the filing of the application." 
 
and it is further held thus:
  
"In the instance case, no special reason has been assigned by the Trial Judge for granting the interim maintenance allowance to the non-applicant from the date of the filing of the application under Section 24 of the Hindu Marriage Act."
  
(2) Smt. Jasbir Kaur Sehgal v. District Judge, Dehradun and Ors., , in which, the Hon'ble Supreme Court held thus:
  
"The question then arises as to from which date the wife would be entitled to claim the enhanced amount of maintenance pendente lite. If wife has no source of income it is the obligation of the husband to maintain her and also children of the marriage on the basis of the provisions contained in the Hindu Adoptions and Maintenance Act, 1956. Her right to claim maintenance fructifies on the date of the filing of the petition for divorce under the Act. Having thus fixed the date as the filing of the petition for divorce it is not always that the court has to grant the maintenance from that date. The Court has discretion in the matter as to from which date maintenance under Section 24 of the Act should be granted. The discretion of the Court would depend upon multiple circumstances which are to be kept in view. These could be the time taken to serve the respondent in the petition; the date of filing of the application under Section 24 of the Act; conduct of the parties in the proceedings; averments made in the application and the reply thereto; the tendency of the wife to inflate the income out of all proportion and that of the husband to suppress the same; and the like. There has to be honesty of purpose for both the parties which unfortunately we find lacking in this case. We are therefore of the opinion that ends of justice would be met if we direct that maintenance pendente lite as fixed by this judgment to be payable from the date of impugned order of the High Court which is October, 1996."
  
6. The learned Counsel for the respondent/wife vehemently contended that inasmuch as the revision petitioner running the catering service in the name of Industrial Catering Service at Mumbai and Chennai and the business turnover is Rs. 5,34,00,000 during the year ending 31.3.2001 as can be seen from Ex.R-4 and as per annexure G & H of the said document, the revision petitioner had amounts to a tune of Rs. 86,19,584 and it is mentioned at page 27 in Ex.R-4 that the office equipment, vehicles, etc., of the revision petitioner and worth about Rs. 19,69,505 and also paying huge amounts towards sales tax and in fact, the revision petitioner was paying Rs. 6,500 per month to the respondent towards maintenance of the respondent and the son born to them, who was studying in Loyola College, till June, 2001, the amount now fixed by the Family Court, viz., Rs. 5,000 per month by way of maintenance, besides Rs. 10,000 towards litigation expenses to the respondent is not on the higher side. As regards the income said to have been earned by the respondent, the learned Counsel submitted that the respondent is not earning any amount and on that aspect there is no documentary evidence let in on the side of the revision petitioner except the self speaking evidence of R.W.1. As regards the income said to be earned by the respondent by acting in the Tamil Film "Anbae Sivam", it is submitted that the respondent acted in the said film without receiving money. With regard to the argument advanced by the learned Counsel for the revision petitioner/husband that the respondent had gone to abroad 8 times, the learned Counsel for the respondent/wife argued that since the respondent's daughter is working as Air Hostess in Gulf AIR ways, as per concession allowed being the dependent of her daughter, the respondent had been to abroad eight times. It is also submitted that the respondent is not employed and also not having any share in the Universal Hospitality Services run along with the sister of the revision petitioner benami in the name of One Prasad. Further, the learned Counsel also submitted that the respondent is entitled for maintenance from the date of the application I.A. No. 1405 of 2001 and not from the date of the order as claimed by the revision petitioner. The learned Counsel for the respondent has relied on the following decisions:  http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/  
  
(1) S. Jayanthi v. S. Jayaraman, , in which, this Court considering the earlier decisions, viz., (i) Venkatesan v. Lalitha, 1991(1) MLJ 297, in which this Court has held that the wife is entitled to payment of interim maintenance from the date of application; (ii) C. Krishnan v. Ponmudi, 1993 (1) DMC 502, in which this Court has held that the normal rule is that the wife must be given the interim alimony from the date of filing of the application for divorce; and (iii) Archanea v. Yogandra, 1994 MPLJ 285, in which, Madhya Pradesh High Court has held that the interim maintenance is payable from the date of application, has held thus:
  
"Normally interim maintenance should be granted from date of application. Failure on the part of the Trial Court to grant interim maintenance from date of application can be interfered with while exercising revisionary power."
  
(2) C. Krishnan v. Ponmudi, 1993 (1) DMC 502, it is held by this Court that in the revision filed by the husband held that the interim maintenance is payable from the date of the petition filed under Section 24 of the Hindu Marriage Act claiming interim maintenance. It is also held so by this Court in Venkatesan v. Lalitha, 1991 (1) MLJ 297, in which it is held:
  
"The applicant in an application for interim maintenance is entitled to payment of interim maintenance from the date of her application."
  
7. The revision petitioner filed O.P. No. 1327 of 2001 for divorce against his wife that the petitioner and the respondent got married at Mumbai according to Hindu Rites on 8.9.1973, the respondent having embraced Hinduism changed her name from Hillary Brady to Bindiya Hillary and two children were born to them, viz., a female and male. In the O.P. the address of the revision petitioner is given as 15/1, 2nd floor, 1st Cross Street, Lake Area, Nungambakkam, Chennai-34. During the pendency of the O.P., the respondent filed I.A. No. 1405 of 2001 under Section 24 of the Hindu Marriage Act claiming interim maintenance in which a sum of Rs. 5,000 per month is ordered as interim maintenance payable by the revision petitioner to the respondent from the date of the said petition, besides Rs. 10,000 towards litigation expenses.
  
8. In paragraph 5 of the counter filed in I.A. No. 1405 of 2001, it is stated that a sum of Rs. 20,000 was paid to the respondent herein inclusive of the rental amount to the house maintained by his company and since his son was living with her wife and on his son came back to him he was paying Rs. 6,500 towards maintenance of his wife. It is further stated that his wife is employed in Universal Hospitality Services, Anna Nagar, Chennai. In paragraph 6 of the counter, it is stated that in owing to the marriage of his daughter and higher studies of his son in Australia, he incurred heavy debts and also heavy losses in his business and unexpected decline apart from various cases either from customers or from banks or from departments and he has no income to eke out his own livelihood and is in a position to work for gain in other companies of similar business and as such, he is not in a position to give Rs. 6,500 per month to his wife towards maintenance as claimed in the said petition.
  
9. The respondent as P.W.1 has denied that she was working in Universal Hospitality Services, Chennai though admitted that she was working in a Travel Agency at Anna Nagar for two months during 1996. Further, it is her evidence that she returned all her shares in that private limited company and the firm run by her husband and also in Bindaya investments to her husband. She also denied that she had earned money by acting in films and that by acting in Tamil Film "Anbae Sivam". Since her daughter was an AIR Hostess, she had gone abroad 8 times by availing concession and at the expenses of her daughter to Malaysia in connection with her daughter's post natal problems. Since her daughter agreed to pay part of maintenance, her husband reduced the maintenance to Rs. 6,500 from 10,000. At the time she gave evidence on 27.2.2004, she was residing at No. 276/4, Sangam Apartments, Belli Area, Anna Nagar West, Chennai-40. Further, it is her evidence that her husband is running a private limited company under the name and style "Industrial Catering Services Private Limited" given to him by his father and his husband is supplying food to oil rigs like ONGC and some foreign companies and is earning Rs. 5,00,000 as net income per month and his total turnover is in crores. Her husband was paying Rs. 6,500 per month upto September, 2001. Her husband settled flat referred to in Encumbrance certificate Ex.P-5 to his illegitimate son Prajeet under the Settlement deed Ex.P-6, which is a pent house of worth Rs. 55 lakhs. It is seen from Ex.P-6 dated 30.4.2003 that the revision petitioner settled residential apartment No. 21/14, Touchwood Apartments, Ramanathan Street, Mahalingapuram, Chennai-600034 measuring to an extent of 2000 square feet of built up area and exclusive terrace garden of 1000 square feet with all rights to use the common passage, compound and facilities including the common space and two parking slots on the ground floor, and undivided share of land measuring 980 square feet comprised in Survey Nos. 620/26 and 620/46 to his minor son Prajeet Mahin Mehra, aged 3 years, represented by his mother and natural guardian Ms. M.R. Girija. M.R. Girija has given application Ex.P-3 dated 20.12.2000 for registering her company in the name of "Yohann Elite Services Private Limited" represented by its Director M.R. Girija, in which the registration of the company is mentioned as Touchwood Apartments, No. 21, Mahalingapuram, Ramanathan Street, Chennai-600 034. Ex.P-8 is the letter dated 12.7.2003 given by one I. Edwin Raj that the respondent is a tenant at 273/3, Sangam Apartments, Belly Area, paying rent at Rs. 3,000 per month.
  
10. The revision petitioner admitted in his evidence as R.W.1 that he and the respondent were living together till the middle of 1995 in a flat of Kothari Road and though he has stated that he has let out that flat to one M.R. Girija, mother of minor son Prajeet Mahin Mehra, to whom he settled the property, under Ex.P-6, viz., residential apartment No. 21/14, Touch wood Apartments, Ramanathan Street, Mahalingapuram, Chennai-600034 measuring to an extent of 2000 square feet of built up area and exclusive terrace garden of 1000 square feet with all rights to use the common passage, compound and facilities including the common space and two parking slots on the ground floor, and undivided share of land measuring 980 square feet comprised in Survey Nos. 620/26 and 620/46, no such rental agreement had been marked and he has admitted that he has not married M.R. Girija, but in view of the relationship with her, his son Prajeet Mahin Mehra was born on 15.7.2000. In the property mentioned under Ex.P-6 in favour of his minor son Prajeet Mahin Mehra, the mother of the minor child started a company in the name "Yohann Elite Services Private Limited" in December, 2000 which could have been by the revision petitioner benami in the name of the mother of his minor son Prajeet Mahin Mehra. In his evidence though he had admitted that Industrial Catering Service for the last 7 or 8 years, according to him, is not doing any business, in connection with the firm he has to pay commercial tax a sum of Rs. 11 to Rs. 12 lakhs as sales tax and penalty and he has also admitted that he was paying a sum of Rs. 6,500 per month to the respondent towards education of her children and for herself and that he stopped paying the amount from August or September, 2001 and his daughter informed him that she will pay the same amount that he was paying throughout her life. In the cross-examination, he has stated that he has not filed house tax details to his flat settled under Ex.P-6 to his minor son Prajeet Mahin Mehra which flat earlier mortgaged in favour of State Bank of India as a collateral security by way of equitable mortgage around Rs. 25,00,000 for the purpose of his business and he redeemed the equitable mortgage by raising loan from others about 15 months before. It is his further evidence that his company had turnover of Rupees Five Crores and thirty four lakhs during the year ending 31.3.2001 as per Ex.R-4 and as per annexure G and H, he had amounts to a tune of Rs. 86,19,585 and as per page 27 in Ex.R-4 his office equipment, vehicles, etc., are worth Rs. 19,69,505. He has further admitted that he has deposited Rs. 39,02,436 which amounts were paid by customers. Further, according to him, his wife was working in Universal Hospitality Services and the Universal Company is the benami company of his sister and which is a proprietary concern of his sister's paramour Rajendra Prasad.
  
11. Therefore, it is clear from such evidence adduced on either side before the Family Court that both parties belong to high class family and have been living in an affluent position and in fact admittedly, the revision petitioner was paying Rs. 20,000 per month towards maintenance of his son and his wife, the respondent and thereafter reduced the same to Rs. 6,500 per month till September, 2001. Though according to the revision petitioner, he stopped making such payment, since his daughter informed that she would support her mother, the respondent by paying the same amount as was paid by the revision petitioner, it is the bounden duty of the revision petitioner to maintain his wife and despite the fact he was paying Rs. 6,500 per month till September, 2001, admittedly he stopped making payment thereafter and has filed the main O.P. No. 1327 of 2001 for divorce on the grounds of cruelty and desertion. Though it is stated by him that his wife is also working in Universal Hospitality Services, Chennai and also that company is also partly owned by her, besides her sister's paramour Rajendra Prasad, such a case has not been proved by the revision petitioner. Similarly, he has also not proved that his wife earned money by acting in the films and particularly by acting in Tamil Film "Anbae Sivam". Admittedly, the respondent is residing 276/4, Sangam Apartments, Belly Area, Anna Nagar West, Chennai-600040 and her son is at Australia and her daughter working as AIR Hostess is also residing separately in Dubai. The revision petitioner settled residential apartment No. 21/14, Touchwood Apartments, Ramanathan Street, Mahalingapuram, Chennai-600034 measuring to an extent of 2000 square feet of built up area and exclusive terrace garden of 1000 square feet with all rights to use the common passage, compound and facilities including the common space and two parking slots on the ground floor, and undivided share of land measuring 980 square feet comprised in Survey Nos. 620/26 and 620/46, as per Ex.P-6 on 30.4.2003 to his minor son Prajeet Mahin Mehra born through the mother of the minor son M.R. Girija and it appears in the said address, the company by name Yohann Elite Services Private Limited has been started by her which would have been benami by the revision petitioner. It is admitted by the revision petitioner that his turnover was Rupees Five Crores and thirty four lakhs during the year ending 31.3.2001 and was having the amount to the tune of Rs. 86,19,585 and as per page 27 in Ex.R-4 that his office equipment, vehicles, etc. are worth Rs. 19,69,505. Similarly, it is admitted by him that he has deposited Rs. 39,02,436 and his company was not a sick industry. Though it is claimed by him that he is residing in the rental premises at Royapuram, such a case is not acceptable and is not proved by the revision petitioner. Admittedly, he has settled the residential apartment No. 21/14, Touchwood Apartments, Ramanathan Street, Mahalingapuram, Chennai-600034 measuring to an extent of 2000 square feet of built up area and exclusive terrace garden of 1000 square feet with all rights to use the common passage, compound and facilities including the common space and two parking slots on the ground floor, and undivided share of land measuring 980 square feet comprised in Survey Nos. 620/26 and 620/46, to his minor son Prajeet Mahin Mehra born through the mother of the minor son M.R. Girija, it is unacceptable that he is residing in a rented premises at Royapuram and only to countenance the case of the maintenance claim of the respondent, such a case has been put-forth by revision petitioner.
  
12. As per Section 24 of the Hindu Marriage Act, on the application of the wife or the husband, who has no independent income sufficient for her or his support and the necessary expenses of the proceeding, the Court can order the respondent to pay the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the Court to be reasonable. The revision petitioner filed the H.M.O.P. No. 1327 of 2001 for divorce on the ground of cruelty and desertion in August, 2001. The respondent herein being the wife of the revision petitioner filed I.A. No. 1405 of 2001 on 15.10.2001 subject matter of this revision, claiming maintenance of Rs. 6,500 per month, besides Rs. 25,000 towards medical expenses and Rs. 25,000 towards litigation expenses and as such, it is clear that the respondent is entitled for such sum fixed towards maintenance payable monthly from the date of such application, besides the litigation expenses, in that the cause of action for such claim arose on the date of filing of the said application I.A. No. 1405 of 2001. Therefore, taking into consideration, the circumstances of the case, the claim made by the respondent/wife for payment of maintenance amount from the date of filing of the application under Section 24 of the Hindu Marriage Act is in order and justifiable as also held by the Hon'ble Supreme Court in Smt. Jasbir Kaur Sehgal v. District Judge, Dehradun and Ors., (cited supra). As such, the argument advanced for the revision petitioner that the respondent is entitled to claim maintenance from the date of the order in I.A. No. 1405 of 2001 is without any force.
  
13. The Family Court considering all these aspects in a proper perspective and inasmuch as the revision petitioner admittedly was paying Rs. 6,500 per month till September, 2001 and the respondent is residing at No. 276/4, Sangam Apartments, Belly Area, Anna Nagar West, Chennai-40, has rightly ordered that the revision petitioner is to pay Rs. 5,000 per month towards maintenance from the date of the application I.A. No. 1405 of 2001 filed under Section 24 of the Hindu Marriage Act, besides Rs. 10,000 towards litigation expenses, which amount cannot be said to be excessive or higher. Such order not being improper is to be confirmed.
  
14. In the result, this Civil Revision Petition is dismissed. No costs. The order dated 30.4.2004 in I.A. No. 1405 of 2001 in O.P. No. 1327 of 2001 passed by the II Additional Judge of Family Court, Chennai is confirmed. Consequently, the connected petition C.M.P. No. 13976 of 2004 is closed.
  

  



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