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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4615  OF 2017 (Arising out of SLP (C) No.7670 OF 2014)

MANISH JAIN        …Appellant  

Versus

AKANKSHA JAIN     …Respondent

O R D E R

R. Banumathi, J.        

Leave granted. 2. The present  appeal  has been filed by the appellant-husband

against the order dated 21.02.2014 passed by the High Court of Delhi

at New Delhi in C.M.(M) No.910 of 2010.  In the said judgment, the

High Court while setting aside the order dated 15.03.2010 passed by

the Additional District Judge-II (West), Tis Hazari, Delhi who declined

to  award  maintenance  pendente  lite to  the  respondent-wife  under

Section  24  of  the  Hindu  Marriage  Act,  1955  has  granted  interim

maintenance to the respondent-wife at  the rate of  Rs.60,000/-  per

month to be paid by the appellant-husband Manish Jain with effect

from 1st February, 2012 till the disposal of divorce petition.  The said

amount  was  fixed  in  addition  to  Rs.10,000/-  which  the

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appellant-husband  has  already  been  paying  by  way  of  interim

maintenance as per the order passed in Criminal Appeal No.65 of

2008 under Section 23(2) of the Protection of Women from Domestic

Violence Act, 2005 [for short ‘the D.V. Act’]. 3. This is a case of marital discord which has a chequered history.

Brief  facts  leading  to  this  appeal  by  way of  special  leave  are  as

under:-  Both  the  appellant  and  the  respondent  got  married  on

16.02.2005 and they were living at V-38, Green Park, New Delhi. The

couple shifted to an accommodation at 303, SFS Apartment, Hauz

Khas, New Delhi on 15.04.2007. In or about July, 2007 relationship

between  the  parties  got  strained.   In  September,  2007  the

appellant-husband filed a divorce petition HMA No.553/2007 under

the Hindu Marriage Act, 1955 [for short ‘the HM Act’] seeking divorce

on the grounds of cruelty.  

4. In November, 2007 the respondent-wife filed a petition under

the D.V. Act along with interim relief i.e., maintenance. She also filed

a complaint on 23.11.2007 under Section 498-A and Section 406 IPC

with  CAW Cell,  Amar  Colony,  Nanakpura,  New  Delhi  against  the

appellant-husband  and  his  family  members  which  was  later  on

registered as FIR bearing No.190 of  2008, Police Station,  Friends

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Colony, New Delhi on 04.03.2008. In December, 2007, respondent

filed yet another Complaint Case No.381 of 2008 under Section 125

Cr.P.C.  before  the  Mahila  Court,  Patiala  House,  New Delhi.   Her

interim application seeking maintenance amongst other reliefs under

Section  23(2)  of  the  D.V. Act  was  dismissed  by  the  Metropolitan

Magistrate, Patiala House, New Delhi by order dated 23.04.2008 on

the ground  that  the respondent  was employed and was getting  a

stable income and that no document was placed on record by the

respondent to show that respondent had again become jobless as the

publication  of  the  Magazine  FNL had  been  stopped.  Against  the

dismissal  of  application for  maintenance,  the respondent  had filed

appeal before Additional Sessions Judge, Patiala House in Criminal

Appeal No.65 of 2008.  In the said appeal and in Criminal Revision

No.66 of 2008, Additional Sessions Judge, Patiala House by an order

dated 01.09.2009 granted maintenance of Rs.10,000/- per month to

the respondent-wife.  

    5. The appellant-husband filed an application under Section 438

Cr.P.C.  on 22.04.2008 for  grant  of  bail  in  anticipation of  his  likely

arrest.  The  High  Court  granted  anticipatory  bail  to  the

appellant-husband  subject  to  return  of  Toyota  Corolla  and

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dowry/jewellery articles to the respondent-wife within a week from the

date of order till the next date of hearing which is said to have been

complied with.  Order was also passed directing the respondent to

deposit Rs.12,00,000/- towards alleged return of dowry articles.

    6. The respondent-wife filed application under Section 24 of the

HM Act claiming interim maintenance pendente lite of Rs.4,00,000/-

per month and also a sum of Rs.80,000/- to meet litigation expenses

during the pendency of the divorce petition.  In the said application,

the  respondent-wife  pleaded  that  she  was  having  no  source  of

income to maintain herself and that she is dependent upon others for

her day to day needs and requirements. The said application was

resisted  by  the  appellant-husband  contending  that  the

respondent-wife is an educated lady and that she had completed her

one year course of Fashion Designing from J.D. Institute, Hauz Khas,

New  Delhi  and  that  she  is  capable  of  earning  monthly  salary  of

Rs.50,000/. The application filed under Section 24 of the HM Act was

dismissed by Additional District Judge-II, Tis Hazari, Delhi by order

dated  15.03.2010.  Being  aggrieved,  the  respondent-wife  filed  Crl.

M.A. No.17724 of 2012 before the High Court, Delhi. The High Court

in its order dated 08.11.2011 in C.M.(M) No.910 of 2010 filed by the

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wife against the order dated 15.03.2010 directed both the parties to

file  an affidavit  truthfully  disclosing their  correct  income.  Both the

husband  and  the  wife  filed  an  affidavit  as  to  their  income  in

compliance of the aforesaid order. After so directing the parties to file

affidavit regarding their income and after referring to the income of

appellant-husband and the  properties  which  the  appellant  and  his

family  are  owning  and  also  the  standard  of  living  of  the

respondent-wife which she is required to maintain, the High Court by

the impugned order  directed the  appellant-husband to  pay  interim

maintenance  of  Rs.60,000/-  per  month  in  addition  to  Rs.10,000/-

which  was  directed  to  be  paid  to  the  respondent-wife  in  the

proceedings under the D.V. Act.  

7. Aggrieved  by  the  order  of  the  High  Court,  the

appellant-husband came in appeal before this Court by way of special

leave. After giving opportunity to the parties to work out a settlement

which  ultimately  failed,  the  same  was  dismissed  on  15.04.2014.

Being  aggrieved  by  the  dismissal  of  the  above  petition,  a  review

petition was filed on 13.05.2014 in which notice was issued by this

Court on 06.08.2014 and on 03.02.2016 the same was allowed and

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the Special Leave Petition was restored to its original number which

is the subject matter before us.  

8. Learned counsel for the appellant-husband submitted that the

respondent-wife  has  concealed  her  employment  and  independent

source of income on several occasions throughout the matrimonial

proceedings before the courts below and also that the High Court has

committed a grave error in interfering with the well-reasoned order of

the trial Court under Section 24 of the HM Act. The learned counsel

for the appellant-husband submitted that the trial court after analyzing

the evidence that the wife was educated, professionally qualified in

the Fashion industry and had sufficient independent income rejected

the application of the wife seeking maintenance under Section 24 of

the HM Act.   It  was submitted that  the High Court  without  proper

appreciation of the income of the parties had wrongly set aside the

order of the trial Court and fixed an abnormal amount of Rs.60,000/-

as maintenance to the respondent-wife under Section 24 of the Hindu

Marriage  Act.  Learned  counsel  further  submitted  that  in  Criminal

Appeal  No.65  of  2008  under  Section  23(2)  of  the  D.V.  Act,  the

appellant-husband is paying an interim maintenance of Rs.10,000/-

per month to the respondent-wife and the appellant-husband has so

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far made a total payment of Rs.7,50,000/- in the proceedings under

D.V.  Act,  apart  from  returning  a  Toyota  Corolla  car  worth

Rs.13,00,000/-  besides  depositing  a  sum of  Rs.12,00,000/-  and  a

sum of  Rs.2,75,000/-  towards  untraced  admitted  dowry  articles  in

compliance  with  the  order  passed  by  the  Court.  It  was  further

submitted that  the appellant-husband’s firms/companies have been

either shut down due to heavy loss and/or under the stage of winding

up and the appellant-husband is not in a position to pay the exorbitant

amount of Rs.60,000/- per month as maintenance pendente lite to the

respondent-wife.

9. Learned  counsel  for  the  respondent-wife  at  the  outset

submitted that the principle of providing maintenance is to ensure the

living  conditions  of  respondent-wife  similar  to  that  of

appellant-husband whereas in the present case the respondent-wife

is yet to receive any money.

10. We have heard the matter at considerable length.  Parties are

entangled  in  several  rounds  of  litigation  making  allegations  and

counter allegations against each other.  Since various proceedings

are pending between the parties, we are not inclined to go into the

merits  of  the  rival  contentions  advanced  by  the  parties.  The  only

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question falling for  consideration is whether the respondent-wife is

entitled  to  maintenance  pendente  lite  and  whether  the  amount  of

Rs.60,000/- awarded by the High Court is on the higher side.

11. The Court exercises a wide discretion in the matter of granting

alimony  pendente  lite but  the  discretion  is  judicial  and  neither

arbitrary nor capricious.  It  is to be guided, on sound principles of

matrimonial law and to be exercised within the ambit of the provisions

of the Act and having regard to the object of the Act.  The Court would

not be in a position to judge the merits of the rival contentions of the

parties when deciding an application for interim alimony and would

not allow its discretion to be fettered by the nature of the allegations

made  by  them  and  would  not  examine  the  merits  of  the  case.

Section 24 of the HM Act lays down that in arriving at the quantum of

interim maintenance to be paid by one spouse to another, the Court

must have regard to the appellant’s own income and the income of

the respondent.

12. At the time of filing application under Section 24 of the HM Act

in December, 2007, the respondent-wife was doing her internship in

fashion designing in  J.D.  Institute  of  Fashion  Technology and just

completed the course and was not employed at that time.  Only in the

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month of May, 2008, she became a trainee and joined FNL Magazine

of  Images  Group  as  Junior  Fashion  Stylist  and  was  earning  an

approximate/stipend income of  Rs.21,315/-  per  month  and  due to

recession, the same is said to have been reduced to Rs.16,315/- for

three months that is July, August and September in the year 2009. It

is stated that thereafter the respondent-wife has become jobless and

associated  with  Cosmopolitan  Magazine  and  according  to  the

respondent-wife, she was working as a Stylist  and is paid nominal

amount of Rs.4,500/- per shoot and the said amount is inclusive of

expenses like travelling etc.  On a perusal of the judgment of the High

Court and also the affidavit of the respondent-wife, it is clear that the

respondent-wife  has  no  permanent  source  of  employment  and  no

permanent source of income.

13. Appellant-husband is stated to be a partner in the firms of his

family business. It is also stated that the appellant-husband and his

family own several valuable properties and has flourishing business.

Insofar  as  the  properties/income  of  appellant-husband,  the  High

Court has made the following observations:-

“38. From the pleading of the respondent before other Courts, it has come on record that the respondent’s family is having successful and flourishing business of electrical and non-ferrous metals for the

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last 22 years.  They are successful in their business.  His mother belongs to a family of journalists and lawyers…. 39.  From the material  placed on record  by  the  petitioner,  prima facie it appears to the Court that even the respondent has not made full disclosure about his income and correct status of the family in the  affidavits  filed  by  him.   The  statements  made  by  him  are contrary to the statement made in the bail application.  Prima facie, it appears to the Court that the respondent is hiding his income by trying to show himself as a pauper, however, the documents placed on record speak differently.  At the same time the family members have  a  reasonably  flourishing  business  and  many  properties  as admitted by him.  It has now become a matter of routine that as and when  an  application  for  maintenance  is  filed,  the  non-applicant becomes poor  displaying  that  he  is  not  residing  with  the  family members  if  they  have  a  good  business  and  movable  and immovable properties in order to avoid payment of maintenance. Courts  cannot under these circumstances close their  eyes when tricks are being played in a clever manner.”

14. Section  24  of  the  HM  Act  empowers  the  Court  in  any

proceeding under the Act, if it appears to the Court that either the wife

or the husband, as the case may be, has no independent income

sufficient for her or his support and the necessary expenses of the

proceeding, it may, on the application of any one of them order the

other party to pay to the petitioner the expenses of the proceeding

and monthly maintenance as may seem to be reasonable during the

proceeding, having regard to also the income of both the applicant

and  the  respondent.   Heading  of  Section  24  of  the  Act  is

“Maintenance  pendente  lite and  expenses  of  proceedings”.   The

Section, however, does not use the word “maintenance”; but the word

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“support”  can be interpreted to mean as Section 24 is intended to

provide for maintenance pendente lite.

15. An  order  for  maintenance  pendente  lite or  for  costs  of  the

proceedings  is  conditional  on  the  circumstance  that  the  wife  or

husband  who  makes  a  claim  for  the  same  has  no  independent

income sufficient  for  her  or  his  support  or  to  meet  the  necessary

expenses  of  the  proceeding.  It  is  no  answer  to  a  claim  of

maintenance that  the  wife  is  educated  and  could  support  herself.

Likewise,  the  financial  position  of  the  wife’s  parents  is  also

immaterial. The Court must take into consideration the status of the

parties  and  the  capacity  of  the  spouse  to  pay  maintenance  and

whether the applicant has any independent income sufficient for her

or  his  support.   Maintenance  is  always  dependent  upon  factual

situation;  the  Court  should,  therefore,  mould  the  claim  for

maintenance  determining  the  quantum  based  on  various  factors

brought before the Court.

16. In  the  present  case,  at  the  time  of  claiming  maintenance

pendente  lite when  the  respondent-wife  had  no  sufficient  income

capable of supporting herself, the High Court was justified in ordering

maintenance.  However,  in  our  view,  the  maintenance  amount  of

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Rs.60,000/- ordered by the High Court (in addition to Rs.10,000/- paid

under the proceedings of the D.V. Act) appears to be on the higher

side and in the interest of justice, the same is reduced to Rs.25,000/-

per month.  The maintenance  pendente lite of  Rs.25,000/-  is to be

paid to the respondent-wife by the appellant-husband (in addition to

Rs.10,000/- paid under the proceedings of the D.V. Act).

17. The  order  impugned  herein  is  set  aside  and  the  appeal  is

allowed.  The  amount  of  Rs.60,000/-  awarded  as  maintenance

pendente lite is reduced to Rs.25,000/- per month which is in addition

to  Rs.10,000/-  paid  under  the  proceedings  of  the  D.V. Act.   The

appellant-husband is directed to pay the arrears w.e.f. 01.02.2012 till

the disposal of the divorce petition, within four weeks from today.  The

appellant-husband shall  continue  to  pay  Rs.25,000/-  per  month  in

addition to Rs.10,000/- paid under the proceedings of the D.V. Act on

or before 10th of every English calendar month till the disposal of the

divorce petition.  If the appellant-husband has paid or deposited any

amount of maintenance pursuant to the order of the High Court dated

21.02.2014, the same shall be set-off against the arrears to be paid

by  the  appellant-husband.   The  respondent-wife  is  at  liberty  to

withdraw  the  amount,  if  any,  deposited  by  the  appellant-husband

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pursuant to the order dated 21.02.2014.  We make it clear that we

have not expressed any opinion on the merits of the matter.  In case

the  appellant-husband does  not  comply  with  the  order, as  above,

including  for  payment  of  arrears,  he  would  be  visited  with  all

consequences including action for contempt of Court.

...……………………….J.     [KURIAN JOSEPH]  

                            .………………………..J.  [R. BANUMATHI]

New Delhi; March 30, 2017

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