Delhi High Court
Puneet Kaur vs Inderjit Singh Sawhney on 12 September, 2011
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 79/2011
% Date of decision: 12th September, 2011
PUNEET KAUR ….. Petitioner Through : Mr. Ashok Chhabra with
Mr. Sunjayjyoti Singh Paul,
INDERJIT SINGH SAWHNEY ….. Respondent Through : Respondent in
THE HON’BLE MR. JUSTICE J.R. MIDHA
CM(M)No.79/2011 and CM No.1756/2011
1. The petitioner has challenged the order dated 26th November,
2010 whereby her application for maintenance under Section 24 of
the Hindu Marriage Act was dismissed by the learned Trial Court.
2. The petitioner claimed maintenance and litigation expenses
from her husband on the ground that she was unable to maintain
herself and her two children aged 13 and 16 years.
CM(M) No.79/2011 Page 1 of 12 The petitioner averred that she
was not gainfully employed and was receiving interest income of
about `8,000/- to `10,000/- per month from the investments
whereas the monthly expenses of the children were to the tune of
`25,000/-per month. The petitioner further averred that the
respondent was running the business of transport in the name of
Bakshi Transport Service and his income was more than `2,00,000/-
to `3,00,000/- per month.
3. The respondent contested the above application before the
learned Trial Court on the ground that the respondent was
unemployed and had no income. The respondent averred that he was
living like a pauper and had no money even for two proper meals
a day. He also stated that he had no shelter.
The respondent also alleged that the petitioner’s annual income
was `3,00,000/- per month from three sources, namely `1,00,000/-
to `2,00,000/- per month from business, `60,000/-per month from
salary and `20,000/- per month from interest.
4. The learned Trial Court believed the respondent and held
that there was no material record to show that the respondent
had any income and, therefore, the petitioner’s application was
CM(M) No.79/2011 Page 2 of 12
5. In Bharat Hegde v. Saroj Hegde, 140 (2007) DLT 16, this
Court laid down the following principles for fixing the
maintenance under Section 24 of the Hindu Marriage Act:-
“4. Right to maintenance is an incident of the
status from an estate of matrimony. Interim
maintenance has an element of alimony, which
expression in its strict sense means allowance
due to wife from husband on separation. It has
its basis in social conditions in United Kingdoms
under which a married woman was economically
dependent and almost in a position of tutelage to
the husband and was intended to secure justice to
5. Section 24 of the Hindu Marriage Act goes a
step further inasmuch as it permits maintenance
to be claimed by the husband even against the wife.
6. While considering a claim for interim
maintenance, the court has to keep in mind the
status of the parties, reasonable wants of the
applicant, the income and property of the
applicant. Conversely, requirements of the non
applicant, the income and property of the non
applicant and additionally the other family
members to be maintained by the non applicant
have to be taken into all. Whilst it is important
to insure that the maintenance awarded to the
applicant is sufficient to enable the applicant
to live in somewhat the same degree of comfort as
in the matrimonial home, but it should not be so
exorbitant that the non applicant is unable to pay.
7. Maintenance awarded cannot be punitive. It
should aid the applicant to live in a similar
life style she/he enjoyed in the matrimonial
home. It should not expose the non applicant to
unjust contempt or other coercive proceedings. On
the other hand, maintenance should not be so low
so as to make the order meaningless.
CM(M) No.79/2011 Page 3 of 12
8. Unfortunately, in India, parties do not
truthfully reveal their income. For self employed
persons or persons employed in the unorganized
sector, truthful income never surfaces. Tax
avoidance is the norm. Tax compliance is the
exception in this country. Therefore, in
determining interim maintenance, there cannot be
mathematical exactitude. The court has to take a
general view. From the various judicial
precedents, the under noted 11 factors can be
culled out, which are to be taken into
consideration while deciding an application under
Section 24 of the Hindu Marriage Act. The same are:
1. Status of the parties.
2. Reasonable wants of the claimant.
3. The independent income and property of the
4. The number of persons, the non applicant has
5. The amount should aid the applicant to live
in a similar life style as he/she enjoyed in the
6. Non-applicant’s liabilities, if any.
7. Provisions for food, clothing, shelter,
education, medical attendance and treatment etc.
of the applicant.
8. Payment capacity of the non applicant.
9. Some guess work is not ruled out while
estimating the income of the non applicant when
all the sources or correct sources are not
10. The non applicant to defray the cost of
11. The amount awarded under Section 125 Cr.PC
is adjustable against the amount awarded under
Section 24 of the Act.”
CM(M) No.79/2011 Page 4 of 12
6. In Jayant Bhargava v. Priya Bhargava, 181 (2011) DLT 602,
this Court laid down the factors to be taken into consideration
for ascertaining the income of the spouse. The relevant portion
of the judgment is reproduced hereunder:-
“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. (See
Jasbir Kaur Sehgal (Smt.) v. District Judge,
Dehradun and Ors., reported at V (1998) SLT 551,
III (1997) CLT 398 (SC), II (1997) DMC 338 (SC)
and (1997) 7 SCC 7).
13. A Single Judge of this Court in the case of
Bharat Hegde v. Saroj Hegde, reported at 140
(2007) DLT 16 has culled out 11 factors, which
can be taken into consideration for deciding the
application under Section 24 of Hindu Marriage Act.
14. Further it has been noticed by the Courts
that the tendency of the spouses in proceedings
for maintenance is to not truthfully disclose
their true income. However, in such cases some
guess work on the part of Court is permissible.
15. The Supreme Court of India in the case of
Jasbir Kaur (Smt.) (supra), has also recognized
the fact that spouses in the proceedings for
maintenance do not truthfully disclose their true
income and therefore some guess work on the part
of the Court is permissible. Further the CM(M)
No.79/2011 Page 5 of 12 Supreme Court has also
observed that “considering the diverse claims
made by the parties one inflating the income and
the other suppressing an element of conjecture
and guess work does enter for arriving at the
income of the husband. It cannot be done by any
16. Although there cannot be an exhaustive list
of factors, which are to be considered in
guessing the income of the spouses, but the order
based on guess work cannot be arbitrary,
whimsical or fanciful. While guessing the income
of the spouse, when the sources of income are
either not disclosed or not correctly disclosed,
the Court can take into consideration amongst
others the following factors:
(i) Life style of the spouse;
(ii) The amount spent at the time of marriage
and the manner in which marriage was performed;
(iii) Destination of honeymoon;
(iv) Ownership of motor vehicles; (v) Household
(vi) Facility of driver, cook and other help;
(vii) Credit cards;
(viii) Bank account details;
(ix) Club Membership;
(x) Amount of Insurance Premium paid; (xi)
Property or properties purchased; (xii) Rental
(xiii) Amount of rent paid;
(xiv) Amount spent 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 were residing together;
(xix) Amount spent on fees and other expenses
(xx) Amount spend on extra-curricular activities
of children when parties were residing together;
CM(M) No.79/2011 Page 6 of 12 (xxi) Capacity to
17. These are some of the factors, which may be
considered by any court in guesstimating or
having a rough idea or to guess the income of a
spouse. It has repeatedly been held by the Courts
that one cannot ignore the fact that an Indian
woman has been given an equal status under
Articles 14 and 16 of the Constitution of India
and she has a right to live in dignity and
according to the status of her husband. In this
case, the stand taken by the Respondent with
respect to his earning is unbelievable.”
7. In the facts and circumstances of this case, both the
parties are directed to file their respective affidavits of
assets, income and expenditure from the date of the marriage up
to this date containing the following particulars:-
7.1 Personal Information
(i) Educational qualifications. (ii) Professional
qualifications. (iii) Present occupation.
(iv) Particulars of past occupation. (v) Members of the family.
(i) Salary, if in service.
(ii) Income from business/profession, if self employed. (iii)
Particulars of all earnings since marriage. (iv) Income from
other sources:- (a) Rent.
(b) Interest on bank deposits and FDRs. (c) Other interest i.e.
on loan, deposits, NSC, IVP, KVP, Post Office schemes, PPF etc.
(e) Income from machinery, plant or furniture let on hire.
CM(M) No.79/2011 Page 7 of 12 (f) Gifts and Donations.
(g) Profit on sale of movable/immovable assets. (h) Any other
income not covered above .
(i) Immovable properties:-
(a) Building in the name of self and its Fair Market Value
? Given on rent.
(c) Leasehold property.
(d) Intangible property e.g. patents, trademark, design,
(e) Properties in the name of family members/HUF and their FMV.
(ii) Movable properties:-
(a) Furniture and fixtures.
(b) Plant and Machinery.
(d) Vehicles i.e. car, scooter along with their brand and
(a) Bank Accounts – Current or Savings. (b) Demat Accounts.
(d) FDRs, NSC, IVP, KVP, Post Office schemes, PPF etc. (e)
Stocks, shares, debentures, bonds, units and mutual funds.
(f) LIC policy.
(g) Deposits with Government and Non-Government entities.
(h) Loan given to friends, relatives and others. (i) Telephone,
mobile phone and their numbers. (j) TV, Fridge, Air Conditioner,
etc. (k) Other household appliances.
(l) Computer, Laptop.
(m) Other electronic gadgets including I-pad etc. (n) Gold,
silver and diamond Jewellery. (o) Silver Utensils.
(p) Capital in partnership firm, sole proprietorship firm.
CM(M) No.79/2011 Page 8 of 12 (q) Shares in the Company in which
Director. (r) Undivided share in HUF property. (s) Booking of
any plot, flat, membership in Co-op. Group Housing Society.
(t) Other investments not covered by above items. (iv) Any
other assets not covered above.
(i) OD, CC, Term Loan from bank and other institutions. (ii)
(iii) Home loan.
(iv) Income Tax, Wealth Tax and Property Tax.
(i) Rent and maintenance including electricity, water and gas.
(ii) Lease rental, if any asset taken on hire.
(iii) Installment of any house loan, car loan, personal loan,
business loan, etc.
(iv) Interest to bank or others.
(v) Education of children including tuition fee.
(vi) Conveyance including fuel, repair and maintenance of
vehicle. Also give the average distance travelled every day.
(vii) Premium of LIC, Medi-claim, house and vehicle policy.
(viii) Premium of ULIP, Mutual Fund.
(ix) Contribution to PPF, EPF, approved superannuation fund.
(x) Mobile/landline phone bills.
(xi) Club subscription and usage, subscription to news papers,
periodicals, magazines, etc.
(xii) Internet charges/cable charges.
(xiii) Household expenses including kitchen, clothing, etc.
(xiv) Salary of servants, gardener, watchmen, etc.
(xv) Medical/hospitalization expenses. (xvi) Legal/litigation
(xvii) Expenditure on dependent family members.
(xviii)Expenditure on entertainment.
(xix) Expenditure on travel including outstation/foreign
travel, business as well as personal.
(xx) Expenditure on construction/renovation and furnishing of
CM(M) No.79/2011 Page 9 of 12 (xxi) Any other expenditure not
7.6 General Information regarding Standard of Living and
(i) Status of family members.
(ii) Credit/debit cards.
(iii) Expenditure on marriage including marriage of family
(iv) Expenditure on family functions including birthday of the
(v) Expenditure on festivals.
(vi) Expenditure on extra-curricular activities.
(vii) Destination of honeymoon.
(viii) Frequency of travel including outstation/foreign travel,
business as well as personal.
(ix) Mode of travel in city/outside city.
(x) Mode of outstation/foreign travel including type of class.
(xi) Category of hotels used for stay, official as well as
personal, including type of rooms.
(xii) Category of hospitals opted for medical treatment
including type of rooms.
(xiii) Name of school(s) where the child or children are
(xiv) Brand of vehicle, mobile and wrist watch.
(xv) Value of jewellery worn.
(xvi) Details of residential accommodation.
(xvii) Value of gifts received.
(xviii)Value of gifts given at family functions.
(xix) Value of donations given.
(xx) Particulars of credit card/debit card, its limit and usage.
(xxi) Average monthly withdrawal from bank.
(xxii)Type of restaurant visited for dining out.
(xxiii)Membership of clubs, societies and other associations.
(xxiv)Brand of alcohol, if consumed.
(xxv)Particulars of all pending as well as decided cases
including civil, criminal, labour, income tax, excise, property
tax, MACT, etc. with parties name.
8. Both the parties are also directed to file, along with
affidavit, copies of the documents relating to their assets,
income and expenditure from the date of the marriage up to CM(M)
No.79/2011 Page 10 of 12 this date and more particularly the
(i) Relevant documents with respect to income including Salary
certificate, Form 16A, Income Tax Returns, certificate from the
employer regarding cost to the company, balance sheet, etc.
(ii) Audited accounts, if deponent is running business and
otherwise, non-audited accounts i.e. balance sheets, profit and
loss account and capital account.
(iii) Statement of all bank accounts.
(iv) Statement of Demat accounts.
(vi) Credit cards.
(vii) Club membership cards.
(viii) Frequent Flyer cards.
(ix) PAN card.
(x) Applications seeking job, in case of unemployed person.
9. The affidavit and documents be filed within a period of four
weeks with an advance copy to opposite parties who shall file
their response within two weeks thereafter.
10. List for hearing on 9th November, 2011.
11. Both the parties are directed to remain present in Court on
the next date of hearing along with all original documents
relating to their assets, income and expenditure.
12. This Court appreciates the valuable assistance rendered by
Ms. Prem Lata Bansal, Senior Advocate.
13. Copy of this order be sent to the Principal District Judge
for being circulated to the concerned judges dealing with
CM(M) No.79/2011 Page 11 of 12
14. Copy of this order be given dasti to learned counsels for
both the parties under signature of Court Master.
J.R. MIDHA, J
SEPTEMBER 12, 2011
CM(M) No.79/2011 Page 12 of 12