MAT.APP.(F.C.)/226/2018 of PARVIN KUMAR JAIN Vs ANJU JAIN

*IN THE HIGH COURT OF DELHI AT NEW DELHI

CORAM:HON'BLE MR. JUSTICE RAJIV SHAKDHERHON'BLE MR. JUSTICE AMIT BANSAL

[Physical Hearing/Hybrid Hearing (as per request)]

AMIT BANSAL, J.

PREFACE

1.Both the appeals arise out of the same impugned judgment dated 16[th]August, 2018. Via the impugned judgment, the learned Principal Judge,Family Courts, Tis Hazari Courts, Delhi (‘Family Court’) disposed of anapplication filed by Mrs Anju Jain (‘Wife’) under Sections 24 and 26 of Hindu

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Marriage Act, 1956 (‘HMA’) seeking enhancement of interim maintenancegranted earlier.

2.MAT.APP.(F.C.) 226/2018, has been filed by Mr Parvin Kumar Jain(‘Husband’) seeking setting aside of the impugned judgment, whereasMAT.APP. (F.C.) 120/2019, has been filed by the Wife seeking enhancementof the interim maintenance granted by the Family Court.

3.The Family Court, vide the impugned judgment, directed the Husbandto pay the following amounts:-to pay the following amounts:-

(i)Rs. 1,15,000/- per month as pendente lite maintenance to the Wifeand the son of the parties from the date of filing the application forenhancement of maintenance i.e. 28[th]February, 2009 to 14[th]July,2016, the date when the divorce petition was withdrawn by theHusband.and the son of the parties from the date of filing the application forenhancement of maintenance i.e. 28[th]February, 2009 to 14[th]July,2016, the date when the divorce petition was withdrawn by theHusband.

(ii)Rs.35,000/- per month to the son of the parties from 15[th]July, 2016till the time he attains the age of 26 years or becomes financiallyindependent, whichever is earlier. This amount shall be subject toincrease by 10% after every two years starting from 28[th]May, 2019.till the time he attains the age of 26 years or becomes financiallyindependent, whichever is earlier. This amount shall be subject toincrease by 10% after every two years starting from 28[th]May, 2019.

BRIEF FACTS

4. Briefly stated, the facts of the case are set out hereinafter:-

(i)The parties got married as per Hindu rites and ceremonies on 13[th]December, 1998 and have son, from the wedlock, namelyAniket@ Dhruv, later changed to Dhairya (‘Son’), born on 28[th]May, 2001.December, 1998 and have son, from the wedlock, namelyAniket@ Dhruv, later changed to Dhairya (‘Son’), born on 28[th]May, 2001.

(ii)The parties started living separately since January, 2004. From thedate of separation, the Son has been residing with the Wife.date of separation, the Son has been residing with the Wife.

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(iii)On 11[th]May, 2004, the Husband filed petition under Section13(1)(ia) of the HMA, before the Family Court, seeking divorce onthe grounds of cruelty.13(1)(ia) of the HMA, before the Family Court, seeking divorce onthe grounds of cruelty.

(iv)During the pendency of the divorce petition, on 27[th]May, 2004, theWife filed an application under Section 24 of the Act seekingpendente lite maintenance. This application was disposed of by theFamily Court vide order dated 20[th]September, 2004 directing theHusband to pay cumulative sum of Rs.18,000/- per month(Rs.15,000/- to the Wife and Rs. 3000/- to the Son).Wife filed an application under Section 24 of the Act seekingpendente lite maintenance. This application was disposed of by theFamily Court vide order dated 20[th]September, 2004 directing theHusband to pay cumulative sum of Rs.18,000/- per month(Rs.15,000/- to the Wife and Rs. 3000/- to the Son).

(v)Both the parties preferred an appeal against this order before thisCourt. In the appeal, this sum was enhanced to Rs.20,000/- permonth (Rs.15,000/- to the Wife and Rs. 5000/- to the Son) by thisCourt vide order dated 21[st]November, 2005.Court. In the appeal, this sum was enhanced to Rs.20,000/- permonth (Rs.15,000/- to the Wife and Rs. 5000/- to the Son) by thisCourt vide order dated 21[st]November, 2005.

(vi)On 28[th]February, 2009, the Wife filed the aforementionedapplication under Sections 24 and Section 26 of the Act forenhancement of the interim maintenance, which came to be decidedby the impugned judgment. In the said application, she claimed anenhanced amount i.e. Rs. 1,45,000/- per month towards interimmaintenance.application under Sections 24 and Section 26 of the Act forenhancement of the interim maintenance, which came to be decidedby the impugned judgment. In the said application, she claimed anenhanced amount i.e. Rs. 1,45,000/- per month towards interimmaintenance.

(vii)On 14[th]July, 2016, the Husband withdrew his divorce petition.5.Claiming that there have been substantial changes in circumstances, theWife filed the application for enhancement of interim maintenance before theFamily Court. In the said application, the Wife submitted that the Husband’ssalary, perks, allowances, bonuses etc were more than Rs. 4,00,000/- permonth. She further submitted that the requirements of the Wife and the SonWife filed the application for enhancement of interim maintenance before theFamily Court. In the said application, the Wife submitted that the Husband’ssalary, perks, allowances, bonuses etc were more than Rs. 4,00,000/- permonth. She further submitted that the requirements of the Wife and the Son

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have increased manifold since the previous application under Section 24 ofthe HMA was decided.

6.During the pendency of the said application, on 17[th]July, 2015, theHusband made statement before the Family Court that he had, keeping inmind the requirements of his growing Son, decided to voluntarily increase theinterim maintenance to Rs.65,000/- per month (Rs. 50,000 to the Wife fromthe date of filing of enhancement application i.e. 28[th]February, 2009 and Rs15,000 to the Son from July, 2015). He further submitted that after the maindivorce petition was dismissed as withdrawn on 14[th]July, 2016, the FamilyCourt became functus officio and therefore, no relief under Sections 24 and26 of the HMA could be granted. Furthermore, he submitted that nomaintenance can be granted to an adult male child under the provisions ofSection 26 of the HMA.

FINDINGS OF THE FAMILY COURT

7.The Family Court via the impugned judgment dated 16[th]August, 2018,allowed the enhancement application filed by the Wife by holding that:-

(i)Relief in an application under Section 24 of the HMA can only begranted from the date of filing the said application i.e. on 28[th]February, 2009 till the date when the main petition i.e. the divorcepetition was dismissed as withdrawn i.e.14[th]July, 2016.granted from the date of filing the said application i.e. on 28[th]February, 2009 till the date when the main petition i.e. the divorcepetition was dismissed as withdrawn i.e.14[th]July, 2016.

(ii)Proceedings under Section 26 of the HMA are independent of themain divorce proceedings and consequently, relief under it can begranted for period after the dismissal of the main divorce petitionas well.main divorce proceedings and consequently, relief under it can begranted for period after the dismissal of the main divorce petitionas well.

(iii)The Husband adopted delaying tactics and hence the enhancement

application of the wife could not be decided in timely manner.

(iv)The Husband had been evasive in providing true details of hisincome and assets to the court and had concealed his real income asalso his movable/immovable assets from the court.income and assets to the court and had concealed his real income asalso his movable/immovable assets from the court.

(v)The Husband had failed in discharging his moral and legal duties toprovide just and reasonable maintenance to his Wife and Sonwhich was commensurate with the social and economic status of theparties.provide just and reasonable maintenance to his Wife and Sonwhich was commensurate with the social and economic status of theparties.

8.In sum, the Family Court held that the Wife and the Son are entitled toan enhanced maintenance in view of the increased expenditure of growingchild and as per the requirements of the Wife, commensurate with her socialstatus. Accordingly, the Family Court directed the Husband to pay thefollowing amounts:-an enhanced maintenance in view of the increased expenditure of growingchild and as per the requirements of the Wife, commensurate with her socialstatus. Accordingly, the Family Court directed the Husband to pay thefollowing amounts:-

(i)Rs. 1,15,000/- per month as pendente lite maintenance to the Wifeand the Son of the parties from the date of filing the application forenhancement of maintenance i.e. 28[th]February, 2009 to 14[th]July,2016, the date when the divorce petition was withdrawn by theHusband.and the Son of the parties from the date of filing the application forenhancement of maintenance i.e. 28[th]February, 2009 to 14[th]July,2016, the date when the divorce petition was withdrawn by theHusband.

(ii)Rs.35,000/- per month to the Son from 15[th]July, 2016 till the timehe attains the age of 26 years or becomes financially independent,whichever is earlier. This amount shall be subject to increase by10% after every two years starting from 28[th]May, 2019.he attains the age of 26 years or becomes financially independent,whichever is earlier. This amount shall be subject to increase by10% after every two years starting from 28[th]May, 2019.(iii)Litigation costs of Rs. 2,00,000/-.

9.Aggrieved by the impugned judgment, both sides have filed the presentappeals.appeals.

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10.This Court, via an interim order dated 27[th]September, 2018 inMAT.APP.(F.C.) 226/2018 filed by the Husband, stayed the impugnedjudgment subject to the Husband paying the Son Rs. 15,000/- per month from1[st]August, 2016 to 31[st]December, 2017 and Rs. 25,000/- per month from 1[st]January, 2018, till further modification.

11.Vide order dated 24[th]April, 2019 in MAT.APP.(F.C.) 120/2019, boththe appeals were directed to be listed together.

12.During the course of the hearing in these appeals, this Court, onnumerous occasions, made efforts to settle the matter amicably between theparties, however, such efforts did not bear any fruit.

SUBMISSIONS OF BOTH SIDES

13.On behalf of the Husband, Mr Y.P. Narula, Senior Advocate, has madethe following submissions:-

(i)The claim for interim maintenance under Sections 24 and 26 of theHMA comes to an end when the main petition itself has beendisposed of. Accordingly, the Family Court could not have grantedthe relief under Section 26 of the HMA in the impugned judgment.Reliance in this regard has been placed on the judgment of theSupreme Court in Ajay Mohan and Ors. v. H.N. Rai and Ors,(2008) 2 SCC 507 and judgment of Coordinate Bench in AkashChadha v. Preeti Khanna, 2016 SCC OnLine Del 4422.HMA comes to an end when the main petition itself has beendisposed of. Accordingly, the Family Court could not have grantedthe relief under Section 26 of the HMA in the impugned judgment.Reliance in this regard has been placed on the judgment of theSupreme Court in Ajay Mohan and Ors. v. H.N. Rai and Ors,(2008) 2 SCC 507 and judgment of Coordinate Bench in AkashChadha v. Preeti Khanna, 2016 SCC OnLine Del 4422.

(ii)Only minor children are entitled to interim maintenance underSection 26 of the HMA. Reliance in this regard has been placed onthe judgment of Supreme Court in Rajnesh v. Neha, (2021) 2 SCC324. Therefore, the Family Court could not have grantedSection 26 of the HMA. Reliance in this regard has been placed onthe judgment of Supreme Court in Rajnesh v. Neha, (2021) 2 SCC324. Therefore, the Family Court could not have granted

maintenance to the Son till he attains the age of 26 years.

(iii)The Wife has been residing at NP-79, Ground Floor, Pitampura andclaims to pay rent to the landlady, one Mrs. Sudesh Bansal. Mrs.Sudesh Bansal had executed registered General Power of Attorney(GPA) and an Agreement to Sell, both dated 25[th]June, 2009, infavour of the Wife's mother. This proves that the Wife has acquiredthe said rented premise benami in the name of her mother and anyclaim for rent from the Husband is illegal. The Wife has committedfraud by failing to disclose this sale transaction to the Family Court.Furthermore, the Wife has committed forgery by filing false andforged affidavits and Rent Agreement dated 13[th]December, 2011.claims to pay rent to the landlady, one Mrs. Sudesh Bansal. Mrs.Sudesh Bansal had executed registered General Power of Attorney(GPA) and an Agreement to Sell, both dated 25[th]June, 2009, infavour of the Wife's mother. This proves that the Wife has acquiredthe said rented premise benami in the name of her mother and anyclaim for rent from the Husband is illegal. The Wife has committedfraud by failing to disclose this sale transaction to the Family Court.Furthermore, the Wife has committed forgery by filing false andforged affidavits and Rent Agreement dated 13[th]December, 2011.(iv)The Husband has not hidden his income and assets from the FamilyCourt. careful perusal of his affidavits dated 16[th]January, 2016and 11[th]May, 2018 filed with the Family Court would prove thesame. Hence, disparaging marks made by the Family Court againsthis conduct were wrong and uncalled for.Court. careful perusal of his affidavits dated 16[th]January, 2016and 11[th]May, 2018 filed with the Family Court would prove thesame. Hence, disparaging marks made by the Family Court againsthis conduct were wrong and uncalled for.(v)If party is living in foreign country, when granting maintenance,the expenditure incurred and the cost of living in that foreigncountry have to be considered. Reliance in this regard has beenplaced on the judgment of the Coordinate Bench in Ms. BinduChaudhary v. Shri Deepak Suga, 2016 SCC OnLine Del 5423.the expenditure incurred and the cost of living in that foreigncountry have to be considered. Reliance in this regard has beenplaced on the judgment of the Coordinate Bench in Ms. BinduChaudhary v. Shri Deepak Suga, 2016 SCC OnLine Del 5423.

14.On behalf of the Wife, Ms. Anu Narula, has made the followingsubmissions:-submissions:-

(i)In her application for enhancement of interim maintenance, theHusband took repeated adjournments only with the intention todelay the proceedings.Husband took repeated adjournments only with the intention todelay the proceedings.

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(ii)The Husband has held coveted positions in various companies andis also the owner of company by the name of Prasham ConsultantsLLP. An analysis of his affidavits filed before the Family Courtwould prove sizable annual income running in crores for the period2009-2016, as well as considerable assets.is also the owner of company by the name of Prasham ConsultantsLLP. An analysis of his affidavits filed before the Family Courtwould prove sizable annual income running in crores for the period2009-2016, as well as considerable assets.

(iii)As per the judgment of the Supreme Court in Anuritta Vohra v.Sandeep Vohra, 2004 SCC OnLine Del 192, the Wife and the Sonare entitled to at least 50% of the income of the Husband. Theamount of Rs. 1,15,000/- per month as granted by the Family Courtis merely 5-6% of the Husband’s admitted income and hence,should be enhanced.Sandeep Vohra, 2004 SCC OnLine Del 192, the Wife and the Sonare entitled to at least 50% of the income of the Husband. Theamount of Rs. 1,15,000/- per month as granted by the Family Courtis merely 5-6% of the Husband’s admitted income and hence,should be enhanced.

(iv)The Wife’s rented house i.e. NP-79, Ground Floor, Pitampura wastransferred to her mother by the erstwhile owner, Mrs. SudeshBansal in 2009 based on mutual understanding. As per thisunderstanding, after the one time payment made by the Wife’smother to Mrs. Sudesh Bansal, the Wife had to pay monthly sumof Rs. 11,000/- as rent to Mrs. Sudesh Bansal, which was paid till2016. The Wife or the Son do not have any share/title/interest in thehouse, which in itself is in dilapidated condition. Hence, theHusband’s submission on the aspect of the Wife making false rentalclaims is not accurate.

(v)The Family Court has correctly held that child even after attainingthe age of 18 years, can be entitled to maintenance till he startsworking and earning or till his studies are complete. The saidproposition of law is well established under Section 125 of theCriminal Procedure Code, 1973 and The Hindu Adoptions and

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Maintenance Act, 1956 and should equally be applicable toproceedings under Section 26 of the HMA as well. Reliance in thisregard has been placed on the judgment of this Court in Urvashi

Aggarwal and Others v. Inderpaul Aggarwal, 2021 SCC OnLine

Del 4641.

15.Counsels for the parties were heard on several dates and have filedwritten submissions in support of their arguments.

ANALYSIS AND FINDINGS

16.We have heard the parties and perused the material on record.

17.In our view, the following issues arise for consideration in the present

appeal-

I.Whether the Family Court becomes Functus Officio after withdrawalof the divorce petition and hence, cannot decide applications underSections 24 and 26 of the HMA, 1955.of the divorce petition and hence, cannot decide applications underSections 24 and 26 of the HMA, 1955.

II.Whether maintenance under Section 26 of the HMA, 1955 can begranted to an adult child.granted to an adult child.

III. WhethertheFamilyCourthascorrectlyawardedinterimmaintenance under Section 24 of the HMA.maintenance under Section 24 of the HMA.

IV. Relief

I. Whether the Family Court becomes Functus Officio after withdrawalof the divorce petition and hence, cannot decide applications underSections 24 and 26 of the HMA, 1955.

18.The Husband submits that once the main divorce petition has beenwithdrawn, the Family Court becomes Functus Officio and accordingly,cannot grant any relief in applications under Sections 24 and 26 of the HMA.

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In support of this submission, the Husband has relied upon the judgment ofthe Supreme Court in Ajay Mohan (supra) and the judgment of the CoordinateBench in Akash Chadha (supra).

19.The reliance on these judgments is completely misplaced. In fact, thejudgment relied upon by the Husband in Akash Chadha (supra), holds thatproceedings under Section 24 of the HMA have life, independent of themain divorce proceedings. The Coordinate Bench in the said judgement notesthat in cases where the wife’s application under Section 24 of the HMA ispending for long period of time and the husband decides to withdraw themain divorce petition, it would cause grave hardship to the wife, if she is notgranted maintenance till the time the main petition is withdrawn.

20.We fully endorse this view. If the submission of the Husband isaccepted, in order to obviate payment of interim maintenance under Section24 of the HMA, the husband can unilaterally withdraw the divorce petition,leaving the wife without any means to maintain herself and dependent, if any.Therefore, in our view, even after the divorce petition is withdrawn, theFamily Court is competent to adjudicate the application for interimmaintenance from the date the said application was filed till the withdrawalof the divorce petition.

21.The reliance on the judgment in Ajay Mohan (supra) is completelyuntenable as the said judgment was not in the context of matrimonialdispute.

22.In so far as Section 26 of the HMA is concerned, there is no limitationprescribed therein in terms of which the Family Court cannot grant relief oralter/modify the relief granted, after withdrawal of the main divorce petition.

This is evident from the plain language of Section 26 itself. For the sake ofconvenience, Section 26 of the HMA is set out below:

“26. Custody of children.—In any proceeding under this Act, thecourt may, from time to time, pass such interim orders and makesuch provisions in the decree as it may deem just and proper withrespect to the custody, maintenance and education of minorchildren, consistently with their wishes, wherever possible, and may,after the decree, upon application by petition for the purpose, makefrom time to time, all such orders and provisions with respect to thecustody, maintenance and education of such children as mighthave been made by such decree or interim orders in case theproceeding for obtaining such decree were still pending, and thecourt may also from time to time revoke, suspend or vary any suchorders and provisions previously made:

1 [Provided that the application with respect to the maintenance andeducation of the minor children, pending the proceeding forobtaining such decree, shall, as far as possible, be disposed of withinsixty days from the date of service of notice on the respondent.]”

[emphasis is ours]

23.Therefore, in our view, the Family Court does not become functusofficio after withdrawal of the divorce petition and it can decide applicationsfiled under Sections 24 and 26 of the HMA, 1955 even after the saidwithdrawal. Significantly, in the present case, the date on which theapplication for enhancement was filed i.e. 28[th]February, 2009, the Son wasless than 8 years of age. Furthermore, on the date when the impugnedjudgment was passed, the son was about 17 years and 3 months old. Therefore,the learned Family Court judge had, in our view, the power to rule on theapplication vis-à-vis the Son by taking recourse to Section 26 of the HMA.

II. Whether maintenance under Section 26 of the HMA, 1955 can begranted to an adult child.

24.In this regard, the Husband submits that provisions of Section 26 of theHMA are distinct from provisions of the Hindu Adoption and Maintenance

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Act, 1956 where maintenance can be provided to an unmarried daughter, evenif she attains the age of majority. It is contended that once the Son has attainedthe age of 18 years, the Husband is not liable to pay any maintenance in termsof Section 26 of the HMA.

25.We are unable to accept this submission. The intent of Section 26 ofthe HMA is to provide for maintenance, inter alia, for the education of thechildren. It is matter of common knowledge that in the normal course, theeducation of the child does not get over upon the child attaining the age of 18years. Mostly, the child would have cleared his high school (Class 12) at theage of 18 years and would be looking to join college/ university for furtherstudies. It is only after completion of college/ university degree and in somecases, completing post-graduation/ professional degree, would the child beable to secure employment. In fact, it can safely be concluded that, in today’scompetitive world, gainful employment may be feasible only after the childhas pursued education beyond 18 years of age. It is in this context that Section26 of the HMA provides that the Court may pass orders with respect to‘education of minor children, consistently with their wishes, wherever’possible. Therefore, the scope of education in Section 26 of the HMA cannotbe restricted only till the time the child attains the age of 18 years.

26.A similar view was taken by Single Bench of this Court in UrvashiAggarwal (supra), where the court was dealing with case arising underSection 125 of the Code of Criminal Procedure, 1973 (Cr.P.C). The courtobserved that father cannot be absolved of his responsibilities to meet theeducation expenses of his son because the son has attained majority. Eventhough, the child may be major, he may not be financially independent andcapable of sustaining himself.

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27.The judgment in Urvashi Aggarwal (supra) was followed by one of us[Amit Bansal, J.] in Sapna Paul v. Rohin Paul, 2024 SCC OnLine Del 372,which was in the context of proceedings under Protection of Women fromDomestic Violence Act, 2005 (DV Act). It was held that the obligation of afather towards his child does not end when the child attains majority, eventhough he is still pursuing his studies.

28.Pertinently, Section 125 of the Cr.P.C, like Section 26 of the HMA,also uses the expression “minor child”[1]. We do not see why different viewshould be taken in respect of maintenance under Section 26 of the HMA.

29.The Husband places reliance on paragraph 25 of Rajnesh v. Neha

(supra) which is set out below:-

“ 25. Section 26 of the HMA provides that the court may from timeto time pass interim orders with respect to the custody, maintenanceand education of the children”

30.The reliance on the aforementioned paragraph is misplaced. In the saidparagraph, the Supreme Court has only stated what is provided in Section 26of HMA. There was no occasion for the Supreme Court to interpret whetherSection 26 of HMA would be applicable in the case of children who haveattained majority, as in Rajnesh v. Neha (supra), the child had not attainedthe age of majority.

1 125. Order for maintenance of wives, children and parents.

(1)If any person having sufficient means neglects or refuses to maintain –

(a)his wife, unable to maintain herself, or

(b)his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or(c)his legitimate or illegitimate child (not being married daughter) who has attained majority, wheresuch child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or(d)his father or mother, unable to maintain himself or herself,a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make amonthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, assuch Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to timedirect:[provisos have not been set out as not relevant for purposes of the present appeal]

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31.In our considered view, child who is pursuing his education would beentitled to maintenance under Section 26 of the HMA even after he attains theage of majority, till the time he is pursuing his education and is not financiallyindependent.

32.In the present case, the Family Court has noted that the Son was 17years and 3 months old at the time when the impugned judgment was passedand was studying in Class 11. The Family Court further goes on to note thatthe Son has good academic record and is desirous of pursuing higher studiesand wants to become software engineer. As per the written submissions filedon behalf of the wife, the Son is currently pursuing engineering from IPUniversity in Delhi.

33.Therefore, the Family Court, taking into account the education andother related expenses likely to be incurred by the Son, awarded him anamount of Rs. 35,000/- per month till the time he is 26 years of age or becomesfinancially independent, whichever is earlier. Significantly, in Rajnesh v.Neha (supra), the Supreme Court observed that the maintenance amountshould take into account the child’s food, clothing, residence, extra coachingor any other vocational training courses to complement the basic education.The operative part of the directions of the Family Court are set out below:

“46.That being the case, the child has now turned 17 years andpresently studying in 11[th]standard, having opted for non-medicalcourse, as revealed to this Court during the conciliation proceeding.The child has an excellent track record in his studies and, he isdesirous of pursing higher studies and wants to become softwareengineer, it is interesting to note that during the conciliationproceedings, the non-applicant/ petitioner husband/ father had somequality time with the child providing him counselling about hishigher studies and career in life, but the non-applicant/ petitionerhusband was non-committal to secure his future. Therefore, it wouldbe fair to assume that the child from 11[th]standard onwards would

require funds not only tuition fee/ private tuition(s) or coursespecific tuition(s), but also have reasonable requirement of laptop,mobile phone, Internet, apart from bearing the cost of decentclothing, spending on entertainment, sports and extra curricularactivities. In other words, the child needs financial security topursue his hobbies.

47.To my mind, sum of Rs. 35,000/- per month shall be - just andfair maintenance that could be provided to the child to ensurefinancial security to pursue higher academic course till such timehe attains the age of 26 years or becomes financially independent,whichever is earlier. Therefore, the application dated 28.02.2009 inso far as it pertains to relief u/s 26 of the Act is disposed of with thedirection that the non - applicant/ petitioner husband/ father shallpay sum of Rs. 35,000/- per month to the child from the date ofdismissal of the petition, i.e., 15.07.2016 till such time he attainsthe age of 26 years or becomes financial independent, whicheveris earlier. The amount of maintenance shall be subject to increaseby 10% after every two years starting from the next date of birth ofthe child, i.e., 28[th]May 2019.”

[emphasis is ours]

34.In view of the discussion above, no interference is called for with theaforesaid directions contained in the impugned judgment.

III.WhethertheFamilyCourthascorrectlyawardedinterimmaintenance under Section 24 of the HMA

35.In Rajnesh v. Neha (supra), the Supreme Court has elucidated thefactors which are to be considered by the Family Court, whilst deciding anapplication for interim maintenance [Reference in this regard may be madeto paragraphs 77 to 81 of Rajnesh v. Neha (supra)] which are set out below:-

i.Status of parties

ii.Reasonable needs of the wife and dependent children

iii.Whether wife is educated and professionally qualified. It wouldnot matter if the wife is educated but is not employednot matter if the wife is educated but is not employed

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iv.Whether wife has any independent source of income and if so,whether the said income is sufficient to enable her to maintainsame standard of lifewhether the said income is sufficient to enable her to maintainsame standard of life

v.Reasonable cost of litigation.

vi.From the income of the husband, reasonable expenses for his ownmaintenance and dependent family members would have to beconsidered.maintenance and dependent family members would have to beconsidered.

vii. Court would have to weigh in the effect of inflation and the highcost of living.cost of living.

36.The Supreme Court concluded that the aforesaid factors would have tobe weighed in while determining interim maintenance. The maintenance to beawarded to the wife should be commensurate with the husband’s wherewithal.The quantification should be done in manner that the wife should be able tomaintain herself comfortably.

37.After carrying out an in-depth analysis of the Husband’s income basedon various income affidavits filed by the Husband and the ITRs and otherdocuments filed by the Wife, the Family Court concluded as under: -

“28.Now, cumulative reading of the four income affidavitswhich have filed by the non applicant/ petitioner husband dated26.05.2012, 17.01.2013, 17.07.2015 and lastly on 16.01.2016 andthe ITRs for the relevant years would admittedly bring out thefollowing status:

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* Gross Total Income

29.It must be pointed out that the said compilation by the Ld.Counsel for the applicant respondent has not been challenged byLd. Counsel for the applicant/ petitioner husband. Perusal of therecord shows that the petitioner husband moved an applicationdated 27.06.2016 to the effect that his services with Banyan TreeBank, Mauritius has been terminated. However, it was urged onbehalf of applicant/respondent wife that the petitioner husbandhas opened his own Limited Liability Partnership firm in the name"Prashum Consultant", which is not refuted by the petitionerhusband, but at the same time he has not cared to file anydocuments concerning his present status as director or partnerof any firm or his latest ITRs or income position. In the absence ofsuch relevant business and financial details, this court isconstrained to refer to the income affidavit dated 07.01.2016 filedby him on the record. He has deposed in the affidavit that hismonthly income was Rs. 5,77,783/- while monthly expenditure Rs.4,95,612/-. It may also be noted that salary income of the non-applicant/ petitioner husband indicated in the affidavit is de horsof the financial benefits in the nature of house rent allowances,car, bonus etc. The income affidavit also reveals interest incomeon bank and deposits at the rate of Rs. 25,000/- per annum; intereston PF Rs. 1,75,000/- per annum; dividend income of Rs. 5 lakhsp.a. (variable) besides pension income at the rate of Rs. 8,422/- permonth. In 'Part-V’ under the head "Statement of Expenditure” of hisaffidavit dated 07.01.2016 there is no liability towards discharge ofany kind of loans except of credit card payments. In 'Part-VI' underthe head "Statement of Assets" he has disclosed about twoproperties one at J.P. Green, Noida and other at Richmand Park,Phase-4, DLF, Gurgaon, Haryana besides operation of as many as8 bank accounts and investments in securities/funds to the extentof Rs. 1,50,38,848/-. It also shows various investments in lifeinsurancepolicies.Inordertodemonstratethefinancialwherewithalsofthenon-applicant/petitionerhusband,theapplicant/ respondent wife placed on record Form 26AS filed underSection 203 AA of the Income Tax, Act which inter alia vide 'Part -F'showspurchaseofimmovablepropertybythenon-applicant/petitioner husband suggesting that Ramaprastha SareReality Pvt. Ltd. deducted TDS amount of Rs. 2,843/- for transactionof Rs. 28,14,241/- on 08.08.2013, in the assessment year 2014-2015.The applicant/respondent wife has also placed on record 'Form26AS' for the assessment 2010-2011 showing in 'Part -E' details ofAIR transaction in as many as 7 different mutual funds for Rs. 1.1Crores, Rs. 1.25 Crores, Rs. 1.3 Crores, Rs. 90 Lakhs, Rs. 50Lakhs, Rs. 25.7 Lakhs and Rs. 1.15 Crores by the non-applicant/petitioner husband. Further, the ITR for the assessment year 2014-2015 of the non- applicant/ petitioner husband shows income fromhouse property by way of rent in respect of property no., F-146,”Richmond Park, DLF City, Phase - IV.

[emphasis is ours]

38.From bare perusal of the Husband’s Income Tax Returns for theAssessment Years 2007-2008 to 2015-2016 and the income affidavits, itwould be safe to conclude that Husband’s monthly income during that spanwas well over Rs. 4,00,000/- per month, as has been contended by the Wifein her enhancement application.

39.The Husband contends that since he was living in Mauritius, his livingexpenses were also higher and that should have been factored by the FamilyCourt. From the record, it appears that the Husband shifted to Mauritius onlyin August, 2014. Before that, he continued to work in India. Taking holisticview, we find that even if we were to consider the fact that the Husband wasemployed in Mauritius starting from the financial year 2014-2015 and his

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expenses must be considered as such, we find that he was still sufficientlyremunerated and had assets generating income to provide meaningfulmaintenance to the Wife and the Son.

A.Concealment by the Husband of his income and assets beforethe Family Court

40.The Family Court in the impugned judgment notes that the Husbandhas throughout the proceedings, concealed his real income as well as hismovable and immovable properties in order to hoodwink the process of law.In this regard, reference may be made to paragraph 31 of the impugnedjudgment which is set out below:

“31.The Ld. Counsel for the applicant/ respondent wife has beenable to ex facie demonstrate that the non-applicant/ petitionerhusband was working with Standard Chartered Bank, though heresignedon03.04.2010,hehadjoinedintheKnowledgeInfrastructure Private Ltd. w.e.f. 08.04.2010, but when the case waslisted for arguments on the instant application on 12.07.2011, heintimated that he has changed his job and joined Lodha Group ofReal Estate, and then on 29.10.2013, he resigned from RamaprasthaSare Homes Ltd. and he then joined IndusInd Bank on 04.02.2014,and 12.06.2014 joined Banyan Tree Bank, Mauritius. Incidentally,the non-applicant/ petitioner husband did not file the statement ofbank accounts with his 1[st], 2[nd]and 3[rd]affidavit and as rightlypointed though he came out with the information that he had fivenew accounts but he selectively filed the statement of banksaccounts for short period, and at the same time withheld thedetails about the operation of other bank accounts. Anyhow, duringthe course of arguments I have been taken through the entries in thebank accounts that would show transactions in substantial amountrunning into thousands or Lakhs of rupees. However, as per form26AS filed along with ITR form 14-15 it appears that there isanother property bought by the non-applicant/ petitioner husbandviz. F-51, Richmond Park, Gurgaon, and the Form 26AS filed bythe non-applicant/petitioner husband also shows that he washolding mutual funds to the tune of Rs. 5.19 crores in the year2015-2016.”

[emphasis is ours]

41.The Husband disputes the aforesaid finding on concealment. On behalfof the Husband, it has been strenuously urged that the Family Court thoughtakes note of the affidavit dated 11[th]May, 2018 filed by the Husband however,it does not deal with the same. We have carefully gone through the saidaffidavit. In our view, the said affidavit was yet another attempt on the part ofthe Husband to mislead the Family Court and conceal particulars of hisincome as well as assets.

42.Illustratively, we have dealt with at least three instances where thecontents of the affidavit are in complete variance with the documents onrecord.

43.Firstly, in paragraph 7 of the affidavit, the Husband has denied that hepossesses investments in mutual funds to the tune of Rs.5.10 crores. In thisbehalf, reference may be made to paragraph 7 of the said affidavit which isset out below:

“7. It is therefore, totally false to suggest that I had at any giventime any investments of Rs. 5.10 crores as argued by the counselfor the Respondent”

[emphasis is ours]

43.1This averment is contradicted by the Statutory Form-26AS of theHusband for the financial year 2009-10 (AY 2010-11), placed on record bythe Wife before the Family Court, in which it is shown that the Husband haspurchased mutual funds totalling Rs.5.10 crores in the said financial year.Though the Husband contends that he had, in fact, sold existing mutual fundsto purchase fresh mutual funds and therefore it would be wrong to say he heldthe said mutual funds, he has not filed any statements or other documents insupport of the same. Therefore, we would tend to agree with the findings ofthe Family Court that the Husband was holding mutual funds worth Rs. 5.10

crores in the year 2009-2010, as is reflected in his Form 26AS.

44.Secondly, in paragraph 11 of the affidavit, the Husband has stated thathe does not own any property in Richmond Park, Gurgaon. In this behalf,reference may be made to paragraph 11 of the said affidavit which is set outbelow:

“11.I further submit that I do not own any property bearingF – 51, Richmond Park, Gurgaon or any other property in the saidlocality and any submission of the Respondent in this regard isfalse.”

[emphasis is ours]

44.1In his Income Tax Returns for the Assessment Year 2014-15, theHusband has specifically shown that he co-owns property i.e. F-146 inRichmond Park, Gurgaon and he is drawing rental income from the same.This is in stark contrast to his statement in his affidavit dated 11[th]May, 2018wherein, he has denied owning any property in Richmond Park, Gurgaon.Further bank statements of the Husband placed on record by the Wife showthat the Husband has been paying regular maintenance charges in respect ofthe said property from April, 2014.

45.Thirdly, in paragraph 13 of the affidavit, the Husband submits that hehas no business interest in Prasham Consultants LLP. In this behalf, referencemay be made to paragraph 13 of the said affidavit which is set out below:

“13. I also deny photocopies of the document filed at Page No. 13-18 by the Respondent. I specifically deny that I have any businessinterest in Prasham Consultants LLP and my affidavit is correctand it honestly discloses all my assets and income.”

[emphasis is ours]

45.1The Wife has filed documents to show that Prasham Consultants LLPwas founded by the Husband along with another partner in the year 2015. TheHusband continued to be partner in the said LLP till he was replaced by his

Signature Not Verified

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father as director/partner in the firm starting from 1[st]January, 2016.

45.2Significantly, the Husband has not bothered to disclose his incomefrom Prasham Consultants LLP before the Family Court. The registeredaddress of Prasham Consultants LLP is shown to be F-146, Richmond Park,Gurgaon in which, as noted above, the Husband has denied having anyownership interest.

46.In his affidavit dated 16[th]January, 2016, the Husband claims he isearning in Mauritius Dollars and his monthly income in Indian currencywould be to the tune of Rs.5,77,783/-, however, he claims his monthlyexpenditure in Indian currency would be Rs.4,95,612/-. In justification of thisexpenditure, he submits that he is incurring an expense of Rs.1,00,000/- permonth towards the maintenance of his old parents who are leading retiredlife. The Wife has placed on record the Husband’s bank account statementsfor the years 2019-2021, which show remittances from his father’s account tohis account, cumulatively of more than Rs. 1 crore. Clearly, person who ismaking remittances of such large sums to his son, would not require anymaintenance. This is clear instance of the Husband seeking to inflate hisexpenses so as to reduce the maintenance payable to the Wife.47.On behalf of the Husband, it has been vehemently argued that it is theWife who has filed false affidavits before this Court to the effect that she livesin rented house and is paying rent on regular basis. It is further alleged thatthe Wife has filed forged Rent Agreement to claim that she is payingmonthly rent to one Ms Sudesh Bansal. It is submitted that the Wife has failedto disclose that the house in which she lives has been transferred by MsSudesh Bansal in favour of the Wife’s mother vide registered General Powerof Attorney and Agreement to Sell dated 25[th]June, 2009. On the basis of the

Signature Not Verified

aforesaid averments, an application has been filed by the Husband underSection 340 of the Cr.P.C before the Family Court, which is yet to be decided.48.In response to the aforesaid averments, the Wife has submitted that inthe year 2009, they shifted to NP-79, Ground Floor, Pitampura for which, shewas paying rent of Rs.11,000/- per month and further sum of Rs.5,000/-towards utilities. In the year 2009, without her knowledge, her motherpurchased the aforesaid property from its owner, Ms Sudesh Bansal bymaking downpayment of Rs.4,50,000/- in the year 2009. In lieu of theremaining sale consideration, the wife continued to make rental payments ofRs. 11,000/- every month.

49.In our view, the explanation offered by the Wife is plausible. perusalof the Rent Agreement dated 13[th]December, 2011 shows that the Wife waspaying rent of Rs.11,000/- per month. It is not the case of the Husband thatthe Wife owns the said property or that she has paid any amount towards thepurchase of the said property. There is nothing placed on record which wouldhave us believe that what was apparent was not real. The Husband, in ouropinion, is seeking to muddy the waters. The Husband’s concealments havebeen alluded to above. The Husband’s contentions on this count are, therefore,rejected. In our opinion, this cannot be ground to deny the lawfulmaintenance to the Wife.

50.It must be emphasized that the discussion above leaves no doubt in ourminds that the Husband has grossly concealed the real income as well as hismovable and immovable assets in order to avoid paying the rightful amountof maintenance to the wife. The Family Court has correctly returned findingswith regard to the earnings of the husband as well as attempts on the part ofthe Husband to conceal his real income.

B.Dilatory tactics by the Husband and non-compliance of theFamily Court’s Orders

51.The Family Court has also taken note in the impugned judgment thatthe Husband has resorted to dilatory tactics which have resulted in enormousdelay in adjudication of the enhancement application filed by the Wife,thereby resulting in gross miscarriage of justice. The relevant observations ofthe Family Court are set out hereinbelow:-

“3.Reverting to the instant case, there is no iota of doubt in mymind that the dilatory tactics adopted by the non-applicant/petitioner husband has resulted in gross miscarriage of justice,and therefore, the issues arising in the instant case must beaddressed to do substantial justice to the victims viz. the applicantwife and their child………”

XXX.XXX

11. Per contra Ms. Anu Narula, Ld. Counsel for the respondent wifestrenuously urged that at the time of passing of order for pendentelite maintenance @Rs.l8,000/- per month vide order dated20.09.2004 the salary income of the petitioner husband wasRs.49,090/- per month whereas in the year 2009 his net salaryincome went up to Rs.2,30,000/- approximately (gross salaryRs.4,05,000/- approximately) besides the fact that he was alsoentitled to bonus and other high perks and allowances. Ld. Counselalso pointed out that the non-applicant / petitioner husband in hisreply to the instant application did not care to give any details abouthis salary income, perks, allowances, bonuses etc., as well asproperties owned by him, concealing that his widowed sister wasgainfully employed being teacher and his father has been derivingpensionary benefits. It was pointed out that since he failed to file hissalary certificate, the Court was time and again constrained to passdirections for filing of relevant documents. Ld. counsel took methrough the order sheets on the judicial record and it was pointedout that the Court vide order dated 22.05.2009 directed him to filehis salary certificate besides form 16A and details of benefitsenjoyed under the bonus scheme, but in compliance thereof thenon-applicant petitioner husband merely filed computer print outof the salary not attested by his employer and he bluntly refused toproduce "Form no. 16A" and other documents concerning hissalary condition, and this propelled the applicant / respondent wifeto file another application on 07.08.2009 for production of certain

documents viz., attested salary slip, IT returns for the last threeyears and increment letter besides details about perks andallowances.”

[emphasis is ours]

52.In the present case, the application for enhancement of interimmaintenance was filed by the Wife on 28[th]February, 2009 and the same cameto be decided via impugned judgment on 16[th]August, 2018, after delay ofmore than 9 years. The effect of the delay is that the Wife and the Son havebeen denied what was rightfully due to them for an inordinate time. This delayhas caused grave prejudice to the Wife and the Son as they have been deniedthe rightful amount of maintenance due to them as they did.

53.It is also matter of record that during the pendency of the enhancementapplication, the Wife was not employed. She filed an income affidavit statingthat she had no income of her own and was dependent on her parental familyfor her survival and that of her Son. The relevant observations of the FamilyCourt have been cited below-

“32. On the other hand, there is virtually no challenge to theincome affidavit of the applicant/ petitioner wife that she isunemployed and solely dependent upon her parental family for hersurvival and that of her son, having no movable and immovableproperties in her name, not enjoying any luxurious life style, and itis also stares on the face of record that the applicant/ petitionerhusband is paying meagre sum of Rs.15,000/- for the education ofthe child.”

[emphasis is ours]

C.Appeal filed by the Wife seeking enhancement of interimmaintenance [MAT.APP.(F.C.) 120/2019]

54.Wife, in her appeal, submits that the maintenance awarded by theFamily Court is on the lower side taking into account the earnings of theHusband and therefore, the interim maintenance should be suitably enhanced,

though no figure has been provided by the Wife, either in her appeal or in anyof her submissions.

55.The application for enhancement was filed by the Wife on 28[th]February, 2009 seeking total maintenance of Rs.1,45,000/- per month. TheWife submits that the aforesaid amount was claimed by her on conservativebasis as at that point in time, she was not aware of the real earnings of herHusband. In the enhancement application, the Wife has averred that theHusband is earning ‘more than Rs,4,00,000/- per month at present’. It wasonly during the course of hearing of the said application that it came to lightthat the income of the Husband is far in excess of the aforesaid amount.

56.Analysis of the income of the Husband, as done above, would showthat his earnings are not significantly higher than the estimate of Rs.4,00,000/-, as stated by Wife in her application.

57.Taking holistic view, in our considered view, the amounts claimed bythe Wife in her enhancement application totalling Rs.1,45,000/- per monthseems to be just and reasonable taking into account the financial position ofthe Husband and the fact that the Wife is unemployed.

58.It is also an undisputed position that with the passage of time, the realvalue of the Rupee depreciates. The Supreme Court in Rajnesh v. Neha(supra) has also held that inflation as well as high costs of living will have tobe considered whilst granting maintenance. The relevant portion is set outbelow:-

“80.On the other hand, the financial capacity of the husband,his actual income, reasonable expenses for his own maintenance,and dependent family members whom he is obliged to maintainunder the law, liabilities if any, would be required to be taken intoconsideration, to arrive at the appropriate quantum of maintenanceto be paid.The court must have due regard to the standard of living

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of the husband, as well as the spiralling inflation rates and highcosts of living. The plea of the husband that he does not possess anysource of income ipso facto does not absolve him of his moral dutyto maintain his wife if he is able-bodied and has educationalqualifications.”

59.In the present case, the enhancement application was filed by the Wifeon 28[th]February, 2009 and was decided only on 16[th]August, 2018. TheFamily Court holds that this delay was on account of dilatory tactics adoptedby the Husband. If the enhanced sum of maintenance had been awarded to theWife when the enhancement application was filed or soon thereafter, theamount would have had much greater purchasing power and would havemade significant difference to the living standards of the Wife and minorSon. Therefore, in our view, it is only fair if interest is awarded on the amountof shortfall.

60.It is submitted on behalf of the Wife that she and her Son have initiatedproceedings under Section 125 of the Cr.P.C on 23[rd]September, 2020. TheWife has placed on record the Husband’s affidavit of income filed inproceedings under Section 125 of the Cr.P.C. to demonstrate that even as ondate, the Husband is gainfully employed in Mauritius and drawing ahandsome salary.

61.Since in these proceedings, we are only concerned with the correctnessof the impugned judgment of the Family Court which dealt with enhancementof maintenance under Sections 24 and 26 of the HMA for the period 2009 to2016, we are not delving into the aforesaid issues. For the purposes of theseappeals, we have only considered Husband’s income for the years 2009 to2016.

Signature Not Verified

IV. Relief

62.In view of the discussion above, both the appeals are disposed of in thefollowing terms:-

i.MAT. APP. (F.C) 226/2018 filed by the Husband is dismissed,along with all pending applications, along with costs of Rs.1,00,000/-.along with all pending applications, along with costs of Rs.1,00,000/-.

ii.MAT.APP.(F.C) 120/2019 filed by the Wife is allowed to theextent that the interim maintenance granted to the Wife underSection 24 of the HMA is enhanced from Rs.1,15,000/- toRs.1,45,000/- per month from the date of filing of enhancementapplication i.e. 28[th]February, 2009 till the date of withdrawal ofdivorce petition by the Husband i.e. 14[th]July, 2016.extent that the interim maintenance granted to the Wife underSection 24 of the HMA is enhanced from Rs.1,15,000/- toRs.1,45,000/- per month from the date of filing of enhancementapplication i.e. 28[th]February, 2009 till the date of withdrawal ofdivorce petition by the Husband i.e. 14[th]July, 2016.

iii.All amounts paid by the Husband to the Wife and the Son tilldate shall be duly adjusted.date shall be duly adjusted.

iv.The Husband shall also be liable to pay interest at the rate of 12%per annum towards the shortfall in the maintenance amount forthe concerned period. The interest shall be calculated on theamount of deficit from the time it became due in particularmonth and till the time it is paid.per annum towards the shortfall in the maintenance amount forthe concerned period. The interest shall be calculated on theamount of deficit from the time it became due in particularmonth and till the time it is paid.

v.Based on the aforesaid, the arrears of maintenance to both theWife and the Son, along with the interest, shall be paid within aperiod of eight (8) weeks from today.Wife and the Son, along with the interest, shall be paid within aperiod of eight (8) weeks from today.

vi.We make it clear that the observations made herein above wouldnot have any bearing on the proceedings under Section 125 of theCr.P.C. initiated by the Wife and Son and which are pendingbefore the Family Court, Rohini. We make it clear that thenot have any bearing on the proceedings under Section 125 of theCr.P.C. initiated by the Wife and Son and which are pendingbefore the Family Court, Rohini. We make it clear that the

Signature Not Verified

Family Court will adjudicate the said proceedings without beingburdened with any of the findings made herein.

AMIT BANSAL(JUDGE)

AUGUST 01, 2024rt/ds

RAJIV SHAKDHER(JUDGE)

Signature Not Verified

Digitally Signed By:DINESHKUMARSigning Date:01.08.202414:49:53