Delhi High CourtVishal Kapoor vs Yashna Kapoor on 21 November, 2013Author:S.Ravindra BhatBench:S. Ravindra Bhat,Najmi Waziri*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                              Reserved on: 31.10.2013
                                               Decided on: 21.11.2013

+      MAT. APP. (F.C.) 24/2013, C.M. NO.12007/2013 &
       12008/2013

       VISHAL KAPOOR                       ..... Appellant
                    Through: Sh. Manish Tandon, Advocate.

                          versus

       YASHNA KAPOOR                        ..... RespondentThrough: Sh. S.K. Puri, Sr. Advocate with
                    Sh. Gaurav Puri, Ms. Gayatri Puri and Ms.
                    Kalpana Chauhan, Advocates.CORAM:HON'BLE MR. JUSTICE S. RAVINDRA BHAT
       HON'BLE MR. JUSTICE NAJMI WAZIRI

MR. JUSTICE S. RAVINDRA BHAT
%
C.M. NO. 12008/2013 (for condonation of delay)
       For the reasons mentioned in the application, C.M. No.
12008/2013 is allowed.MAT. APP. (F.C.) 24/2013, C.M. NO. 12007/2013 (for stay)1.     In this appeal underSection 19of the Family Courts Act, the
husband challenges an order of the Family Court directing him to pay
maintenance pendente lite to the wife, Yashna Kapoor (hereafter "the
wife") during the course of divorce proceedings.2.     The facts are that the husband preferred a petition underSection
13 (1) (ia)of the Hindu Marriage Act, 1955 ("the Act") claiming




MAT. APPL(F.C.)24/2013                                           Page 1
 divorce, i.e. HMA 714/2011. Another petition, being HMA 679/12,
was filed by the wife claiming decree of the dissolution of marriage
against the husband underSection 13 (1) (i)& (ia) of the Act. With
this petition the wife filed an application underSection 24of the Act
claiming maintenance for herself and her minor daughter. She also
preferred an application for maintenance underSection 125of the
Code of Criminal Procedure (Cr.PC) for grant of maintenance, for
herself and her minor daughter; an interim maintenance application
was also filed.3.     The marriage between the parties was solemnized on
01.10.1995 according to Hindu rites. From the said wedlock a
daughter was born, who is in the wife's custody. The wife levelled
several allegations outlining insult by the husband and his family
members for bringing insufficient dowry. She alleged that she was
subject to constant and regular harassment; that she was abandoned
and deserted by the husband, the sole earning member and was left to
fend for herself and the daughter. The wife was forced to leave the
matrimonial home on 16.02.2010. She is a housewife and has no
independent source of income. Except one car, she does not have any
movable or immovable property. The car was purchased on instalment
basis, the initial deposit for the car was given by her father and
instalments for it are being paid by her mother. The wife is totally
dependant upon her parents for her day-to-day needs and of her
daughter. Alleging that the husband is a man of means and receives
rental income in respect of his property at Barakhamba Road of not
less than `1,00,000/- per month, apart from his other sources of



MAT. APPL(F.C.)24/2013                                          Page 2
 income. The wife alleged that she and her daughter were entitled to a
separate residence. She claimed that the husband be directed to pay
`56,200/- per month to her and `39,500/- per month for the
maintenance of their daughter.4.     The application was contested by the husband who denied all
allegations of cruelty and alleged that the wife had no justifiable
reason to desert him and that she filed the applications to extort
money from him. He was paying the entire school fee of minor
daughter; he was also paying a sum of `12,500/- per month towards
the maintenance to the wife and their daughter. Further, when he was
released on anticipatory bail (in regard to allegations of his
committing offences punishable underSection 498A, IPC) he had also
paid `2 lakhs to the wife towards her and the daughter's maintenance.Therefore, she is not entitled to any maintenance. He also alleged that
the wife had herself withdrawn from the society of the husband
without any cause. He, therefore, sought dismissal of the application
for maintenance pendente lite.5.     The wife's income affidavit stated that she is educated up to the
12thgrade and had completed a years' NTT course, baking and
chocolate making programmes and a 30-day TATA AIG Insurance
Training Programme. She had supplied lunches commercially in 2003
for a month when the parties were living together. She held a Fixed
Deposit Receipt of `1 lakh. She has furniture, recovered from the
husband as dowry articles. She has an I-10 Hyundai car. The initial
amount was paid by her late father and the instalments are being paid
by her mother. She has two bank accounts and an LIC policy in her



MAT. APPL(F.C.)24/2013                                           Page 3
 name which lapsed. She owns a cell phone and old household items.
She has no shares in any companies, except to the extent that the
husband made her the Director in some of his companies of which she
has no knowledge. She pays `8,000/- as monthly school fees of her
daughter and tuition fee as `4500/- She has a credit card with a
maximum limit of `40000/- Her daughter is studying in K.R
Mangalam School, Greater Kailash -II, New Delhi.6.     The affidavit of the husband stated that he completed B.Com
from Delhi University, and is running Vastu Consultancy since 2008
besides having worked as a jewellery store manager. He had also
designed jewellery books catalogues and was into trading and
directory publishing. He also had modelled and acted as Assistant in
Film/TV Serial; he was into the business of solar products trading,
import and export. His mother and sister are dependent upon him. His
father disowned him and his two younger brothers are living in their
own accommodation and working. He earns monthly rent of
`69,000/- from the property owned by the father and the rent has been
provided to him for his sustenance. He did not receive rent for the last
15 months. He is receiving interest of `1500/- per annum on an FDR.
He owns two plots on the Jaipur-Ajmer Highway. All his furniture
was taken away by his wife, alongwith two female dogs. He owns a
second hand car - 2000 model Hyundai Accent, and maintains a
saving bank account as well as current account. He has 9500 shares of
V.K. Solar Pvt. Ltd., Four life insurance policies and joint policies
with the name of applicant/wife and owns SBI Mutual funds. He has
taken credit card loan of `56,766/- from HDFC Bank and `74,998/-MAT. APPL(F.C.)24/2013                                           Page 4
 from HSBC Bank and pays property tax of `2,40,540/- per annum. He
has to pay `7000/- as rent and office rent charges of `6000/- and
maintenance, electricity, water and gas charges of `3000/- per month.
His conveyance expenditure is around `5000/- per month. He is a
member of the Resort Company Club and its subscription is `4000/-
per annum and his usage, subscription to newspapers, periodicals,
magazines etc. are `700/- per month. He pays internet charges of
`850/- per month. His expenditure on travel, including outstation and
foreign travel, business as well as personal, are `2500/- per month.
His mode of travel in city and outside city is metro, bus and auto-
rickshaw and he last traveled in 2007 by Air India in economy class
and stayed in a budget hotel. He has two credit cards and maximum
credit limits are `39000/- and `54000/- respectively. He has
membership of a South Delhi Club at Greater Kailash but now the
club is closed. He has a PAN card.7.     The Trial Court recollected the relevant principles to be applied
by Courts, outlined inSanjiv Sangwan v. Sangeeta Sangwan143
(2007) DLT 306;Bharat Hegde v. Smt. Saroj Hegde, 140 (2007) DLT
16 and Jayant Bhargava v. Priya Bhargava181 (2011) DLT 602, i.e.
status of parties; reasonable wants of the claimant; the independent
income and property of the claimant; the number of dependents of the
non-applicant whom he has to maintain; the amount should aid the
applicant to live in a similar life style as he/she enjoyed in the
matrimonial home; non applicant's liabilities, if any; provisions for
food, clothing, education, medical attendance and treatment etc., of
the applicant; payment capacity of the non-applicant. The Court also



MAT. APPL(F.C.)24/2013                                           Page 5
 stated that some guesswork is not ruled out while estimating the
income of the non-applicant when all the source of correct sources are
not disclosed and that the non-applicant would defray the cost of
litigation.8.     The Trial Court then observed that the wife had placed on
record material which revealed that the husband was possessed of
means greater than what he had disclosed to the Court:"10. (the wife has produced).............. ...visiting
       cards of the non-applicant/husband which shows that he
       is Chairman of the V.K. Solar and said firm runs its
       business at Chiae and Hongkong also. He has also filed
       other photographs which shows that the non-
       applicant/husband is running a Astro Vastu Consultancy
       also. Non-applicant/husband in his affidavit husband has
       stated that he is paying rent of the office also which
       means that he is maintaining an office. Though he has
       stated that his Vastu business as well as business of V.K.
       Solar is in losses but still he is maintaining the office and
       paying rent for the same. He has stated that he has his
       mother and sister dependent upon him but at the same
       time in his affidavit he has stated that his father is still
       alive and therefore, it is the duty of his father to maintain
       his wife i.e. mother of the non-applicant/ husband and his
       daughter i.e. the sister of the non-applicant/husband.
       From the affidavit of non-applicant/husband it is clear
       that he has no other liability except to maintain the
       applicant/wife and their daughter. Again and again
       arguments have been put forth by counsel for the non-
       applicant/husband that the applicant/wife is working and
       is able to maintain herself but neither in the entire reply
       nor in his affidavit the non-applicant/husband has taken
       this plea. Nether he has stated what type of work
       applicant/wife is doing nor he has taken any such plea
       that applicant/wife is working or is able to maintain
       herself.Applicant/wife is maintaining the daughter of the



MAT. APPL(F.C.)24/2013                                                 Page 6
        parties also who is school going and is presently about
       17 years of age. From the reply as well as affidavit of
       non-applicant/husband it is clear that he has concealed
       his true income and status from the court. Reference can
       be had to the judgment of Hon'ble Supreme Court titled
       asJasbir KaurSehgal Vs. District Judge, Dehradun and
       Others1997(7) SCC 7................."9.     Thereafter, the Court considered all the material on record and
directed the husband to pay `15,000/- per month to the wife and
`10,000/- to the daughter, towards their maintenance, from the date of
the application. The Court also directed payment of litigation
expenses.10.    It is argued by the husband, through his counsel, that the
Family Court fell into grave error in concluding that the husband was
possessed of considerable means. It was highlighted that the husband
had not been receiving rent for long- a fact revealed to the Trial court
itself. Counsel also submitted that the husband's business in solar
equipment trading, as well as vastu consultancy is incurring losses
and that the inferences drawn by the Trial Court about his alleged
concealment are not borne out by the record. It was argued that the
premises in Greater Kailash are used by the appellant for his business
and he has to pay rent for it. Counsel relied on the documents
produced before the Family Court, and contended that the amount
directed to be paid is excessive and having regard to the limited and
meagre amount that the husband is left with, after expenditure, the
sum directed, i.e. `25,000/- cannot be termed reasonable.11.    Learned counsel for the wife, on the other hand, argued that the




MAT. APPL(F.C.)24/2013                                            Page 7
 Income tax documents in the form of income and expenditure
account, asset statements, etc. clearly revealed that there was nothing
wrong in the Family Court's assessment of the husband true income.
It was argued that the impugned order is neither incorrect in law, nor
does it omit any material fact or circumstance. In these circumstances,
there is no occasion for the Court to interfere with the findings of the
Trial Court.12.    The material on record reveal that the individual income tax
returns of the Appellant for the year 2011-2012 showed a rental
income of `8,56,577/- of which he claimed standard deduction
permissible, i.e. 30%. This meant that the real rental income was over
`71,000/- per annum. For M/s V.K. Solar, the total sales disclosed
during the year ending 31.03.2011 was `3,82,810/-. Interestingly, a
deduction of `95,000/- has been shown towards salary; telephone and
internet expenses for the year are `37,436/-; the rent has been shown
at `36,000/-. It is a matter of record that the Greater Kailash premises
were gifted to the appellant by his father. M/s Vastu Benefit earned an
income of `1,54,050/- during the same period. Of this, the sum of
`35,942/- was towards car expenses; `22,824/- towards website
charges, `26,307/- towards general expenses and `68,497/- towards
depreciation. The appellant showed two properties as owned by him- being two plots of land on the Jaipur-Ajmer Highway for which he
has paid `18.75 lakhs. These were revealed in his affidavit;
concededly he owns a commercial property which fetches about
`71,000/- as monthly rent, and also owns premises in Greater Kailash-
I, New Delhi, a residential locality generally regarded as posh. All



MAT. APPL(F.C.)24/2013                                           Page 8
 these clearly point to his being economically sound and quite well off.
As against this, the wife has revealed that she owns a car, the
instalment payments for which are undertaken by her mother. She has
no source of income and is not working. Her needs and that of her
child have to be taken into account. She is at the moment, entirely
dependent upon her parents for her maintenance, defraying of day-to-
day expenses and the expenditure incurred by her for the upbringing
of a growing child, i.e. educational, health, recreational and other
needs.13.InJayant Bhargava(supra) the Supreme Court held that
though there cannot be an exhaustive list of factors to be considered in
guessing the true income of the spouse, an order based on guesswork
should not be arbitrary or fanciful.Whenever it is necessary to guess
the income of the spouse, if the source of income are either not
disclosed or not correctly disclosed, the Court can taken into
consideration some relevant factors such as:"(i) Life style of the spouse.(ii) The amount spent at the time marriage and the manner
         in which marriage was performed.(iii) Destination of honeymoon.(iv) Ownership of motor vehicles.(v) Household facilities.(vi) Facility of driver, cook, other help(vii) Credit cards(viii) Bank account details(ix) Club Membership(x) Amount of insurance premium paid(xi) Property or properties purchases;(xii) Rent Income
         (xiii) Amount of rent paid




MAT. APPL(F.C.)24/2013                                           Page 9
        (xiv) Amount spend on travel/ holiday
       (xv) Locality of residence.
       (xvi) Number of mobile phones
       (xvii) Qualification of spouse(xviii) School (s) where the child or children are studying when
       parties are residing together.(xix) Amount spent on fees and other expenses incurred
       (xx) Amount spent on extra curricular activities of children
               when parties were residing together."InJayant Bhargava v. Priya Bhargava, 181 (2011) DLT 603, this
Court, based on the decision of the Supreme Court inJasbir Kaur
Sehgal (Smt.) v. District Judge, Dehradun and Ors., (1997) 7 SCC 7
observed as follows:"12. It is settled position of law that a wife is entitled to
       live in a similar status as was enjoyed by her in her
       matrimonial home. It is the duty of the courts to ensure
       that it should not be a case that one spouse lives in a life
       of comfort and luxury while the other spouse lives a life
       of deprivation, poverty. During the pendency of divorce
       proceedings the parties should be able to maintain
       themselves and should be sufficiently entitled to be
       represented in judicial proceedings. If in case the party
       is unable to do so on account of insufficient income, the
       other spouse shall be liable to pay the same."14.    In the present case, the appellant's admissions reveal that he
owns a commercial flat at Barakhamba Road; even after payment of
the annual property tax paid, the rental amount would be substantial.
He has three sources of income; though he claims that the two
businesses are incurring losses, the nature of expenditure incurred in
those businesses, coupled with the earnings by him, are revealing.MAT. APPL(F.C.)24/2013                                                 Page 10
 There is no denial to the fact that he is the beneficiary of a gift of
property by his father, of a Greater Kailash-I property. He uses credit
cards; the petrol and depreciation expenses claimed in balance sheets
are in the range of about `1,00,000/-; he also has shown salary
expenditure to the extent of `95,000/-. It is recognized by Indian
Courts that parties are not always candid in revealing their true
income; especially in the context of matrimonial disputes, where
when discord arises, and legal proceedings are anticipated or initiated,
efforts are made by spouses to underplay their earnings. From all his
earnings (primarily through rental income as then assessed) he has no
liability towards any of his parents or siblings. Therefore, all the
monies at his disposal would be for himself and his duty towards
maintenance of his wife and their daughter. That the minor daughter is
studying and her growing needs are to be taken care of are
undeniable; equally the wife's right to maintenance, under the
circumstances cannot be disputed. The husband has not shown that
she is possessed of any known and steady source of income.Having
regard to the overall conspectus of circumstances, and in the light of
the above discussion, this Court is of the opinion that the Trial Court's
determination that the applicant/wife should be granted interim
maintenance @ `15000/- per month and minor daughter (Sagarika
Kapur) is entitled to `10,000/- per month from the date of filing of the
applications till the disposal of the case on merits or till they are
legally entitled to receive the same does not call for interference. The
husband is directed to clear all arrears of maintenance within four
weeks from today in equal installments and to furnish the monthly



MAT. APPL(F.C.)24/2013                                            Page 11
 maintenance after the date of orders by way of money order or by
deposit in the bank account of the wife on her furnishing the account
number of the same, by or before 10th date of each English calendar
month. The default shall be viewed in terms of the Trial Court's order,
i.e. the consequences spelt out by judgment of this Court inGaurav
Sondhi v. Diya Sondhi120 (2005) DLT 426. Furthermore, in
accordance with settled law, the respondents would be entitled to the
maintenance of the highest amount among the various allowances
awarded, if any to them by various courts. The present appeal and
pending application are dismissed, in the above terms.S. RAVINDRA BHAT
                                                        (JUDGE)



                                                    NAJMI WAZIRI
                                                         (JUDGE)
NOVEMBER 21, 2013




MAT. APPL(F.C.)24/2013                                          Page 12