Principles and procedures in deciding maintenance under HMA 24

This Delhi High Court(HC) judgment talks about the fact that if wife withdrew large sums of money from joint account of husband, which could not be accounted for in household expenditure; then trial court was not correct in award of maintenance amount without taking this fact into consideration. The case was sent back to trial court to take into account this crucial fact.

——————————————————————–

IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : SECTION 13(1)(I)(A) OF THE HINDU MARRIAGE ACT

CM(M) No.367/2007

RESERVED ON : 02-04-2007

DATE OF DECISION: 17-04-2007

Alok Kumar Jain ……. Petitioner
through: Mr.Sandeep Sethi, Sr. Adv. with
Mr.Anshu Mahajan, Adv.

VERSUS

Purnima Jain …….. Respondent
through: Mr.Harish Malhotra, Sr. Adv. with
Mr.Tanuj Khurana, Adv.

PRADEEP NANDRAJOG, J.

1. Alok Kumar Jain was married to Ms.Purnima Jain at New Delhi. They
were blessed with 2 daughters.

2. Alok Kumar Jain was employed as a Senior Manager with Engineers
India Ltd. Unfortunately for the couple their daughter, Radhika, suffered
from
severe hearing loss of both ears. The couple spent considerable money on
her
treatment. In the year 2000, Alok Kumar Jain, in consultation with his
wife, decided
that if he took up employment in Abu Dhabi he could enhance his monetary
prospects. He tendered his resignation. He received Rs.27 lacs as terminal
benefits
from Engineers India Ltd. The money was deposited in a joint account
operated by
the husband and the wife. The husband took up employment in Abu Dhabi.
Unfortunately, the couple separated. The 2 daughters are with the mother.

3. The wife filed a petition for divorce under Section 13(1)(i)(a) of the
Hindu Marriage Act. She filed an application under Section 24 of the Hindu
Marriage Act praying that she be granted interim maintenance @Rs.2 lacs per
month.
She also prayed that the husband should pay to her Rs.11 lacs for treatment
of their
daughter Baby Radhika.

4. To sustain the claim she averred that her husband was earning
approximately Rs.7 lacs per month in Abu Dhabi. That he was being provided
an
accommodation free of cost by the employer.

5. In the reply, husband stated that over the last 3 years, the wife had
withdrawn approximately Rs.56 lacs from the joint accounts maintained by the

couple. That she had exaggerated the income of the husband. That his
monthly
income was Rs.2.11 lacs. That out of Rs.56 lacs withdrawn by the wife, she
had
made investments, details whereof was not disclosed to the husband. Not
denying
his liability to maintain the wife and the 2 daughters, it was stated by
Alok Kumar
Jain that the wife was having sufficient funds, interest income wherefrom
was
sufficient to sustain the monthly expenses of the family.

6. By a cryptic order, without calling upon the wife to explain how she had

spent Rs.56 lacs which was withdrawn by her from the joint accounts, learned

Matrimonial Judge has directed the husband to pay maintenance of Rs.20,000/-
per
month for the benefit of the 2 minor daughters with effect from the date of
the
application.

7. In respect of the claim of the wife that Rs.11 lacs be paid for medical

treatment of the daughter Baby Radhika, learned Judge has opined that issue
would
be decided when the wife produces details of the likely expenses supported
with the
opinion of renowned surgeon.

8. Impugned order dated 13.2.2007 has been challenged by the husband
inter alia on the ground that the learned Judge has ignored that the wife
had not
accounted for Rs.56 lacs withdrawn by her from the joint accounts maintained
by the
husband and the wife.

9. Since I am remanding the matter for fresh adjudication, lest prejudice
is
caused to either party, I refrain from discussing the plethora of precedents
cited at the
Bar by learned counsel for the parties.

10. Law under Section 24 of the Hindu Marriage Act is well crystallized.
From the judicial precedents, factors which can be culled out as required to
be kept in
mind while awarding interim maintenance are as under:- (i) Status of the
parties,
(ii) Reasonable wants of the claimant,
(iii) The income and property of the claimant,
(iv) Number of persons to be maintained by the husband,
(v) Liabilities, if any, of the husband,
(vi) The amount required by the wife to live a similar life style as she
enjoyed in
the matrimonial home keeping in view food, clothing, shelter, educational
and
medical needs of the wife and the children, if any, residing with the wife
and
(vii) Payment capacity of the husband.

11. Further, where it is noted that the respective spouses have not come
out
with a truthful version of their income, some guesswork has to be resorted
to by the
Court while forming an opinion as to what could possibly be the income of
the 2
spouses. This guesswork has to be based on the status of the family, the
place where
they are residing and the past expenses on the children, if any.

12. In the instant case, husband has truthfully disclosed his monthly
income
in Abu Dhabi i.e. Rs.2.11 lacs per month. While deciding what maintenance
has to
be paid to the wife who is maintaining 2 daughters, cost of living in Abu
Dhabi has
to be taken note of.

13. If this was the only fact to be considered, there would have been no
problem in sustaining the impugned order. However, there is a problem. The

problem is non disclosure of how has the wife spent appropriated Rs.56 lacs
over the
past 3 years. Admittedly, said amount was available in the joint accounts
of the
parties. Admittedly, said amount has dissipated.

14. An additional fact to be noted is that the wife and the 2 daughters are

living in a flat purchased by the husband, i.e., no rent is being paid by
the wife.

15. Further, admittedly, Baby Radhika needs considerable money for her
medical treatment. But, on this issue, learned Matrimonial Judge has kept
the matter
open for adjudication as and when wife provides cogent material in the form
of
medical opinion supported with evidence as to how much money would be
required
for the cochlear operation of the daughter.

16. It is not in dispute that 2 accounts were opened in the joint names of
the
husband and the wife with Corporation Bank, Bhikaji Cama Place and State
Bank of
India, Vasant Vihar respectively. The second account is a NRE account.
17. From the statement of bank accounts filed by the husband, undisputed
position is that between February 2001 to January 2004, a sum of
Rs.61,94,011/- was
credited in the said 2 accounts. It is also not in dispute that the wife
has withdrawn a
sum of Rs.56,02,000/- from the 2 accounts between 1.2.2001 to 28.1.2004.

18. From the statement of bank accounts it is further revealed that between

24.3.2003 to 28.1.2004 i.e. in approximately 10 months, the wife has
withdrawn
Rs.41,78,000/- from the 2 accounts. It would be interesting to note that
the wife
sought divorce by filing a petition on 29.1.2004.

19. The statement of bank accounts show that between the years 2001 to
2003, the wife has spent Rs.5,25,303/- by making cash withdrawals, paying
school
fee, electricity and water bills etc. in sum of Rs.5,25,303/-. In this
period she has
withdrawn or spent Rs.6,12,000/- for purchase of a car, a computer + a
hearing aid
with FM receiver for Baby Radhika. Further, between March 2003 to March
2007
the wife has withdrawn Rs.9,80,000/-, which approximates to Rs.20,000/- per
month
for household expenses.

20. In respect of the huge cash withdrawals made by the wife only
Rs.18,94,000/- have been accounted for. These are in the shape of 2 fixed
deposits
totalling Rs.14 lacs + monies deposited in the public provident fund account
opened
in the name of the children.

21. Thus, an approximate sum of Rs.34,00,000/- remains unexplained.

22. If I look to the statement of accounts, it is obvious that between the
year
2001 to 2003, the wife spent Rs.5,25,303/- to sustain the household, pay the
school
fee and electricity and water bills. During this period, she purchased a
car and a
sophisticated hearing aid + a computer for the daughter for which 3 items
she spent
Rs.6,12,000/-. Thereafter, from March 2003 to March 2007 i.e. in 4 years
she
withdrew Rs.4,80,000/- presumably spent towards household expenses for said
period.

23. It is evident that the wife was able to sustain herself and the
daughters in
sum of Rs.20,000/- per month as household expenses + other miscellaneous
expenses
excluding capital expenses incurred for purchase of a car, hearing aid and a

computer.

24. The learned Judge ought to have called upon the wife to disclose on
oath
as to where has she spent or invested approximately Rs.34 lacs. The learned
Judge ought to have called upon the wife to explain as to why she withdrew
Rs.41,78,000/-
between 24.3.2003 and 28.1.2004. What was the need to withdraw such an
heavy
amount?

25. Further investigation was required to be made as to in what manner
interest accruing on the 2 fixed deposits totalling Rs.14 lacs was being
spent by the
wife.

26. It could well be argued that the wife has invested huge sums in
undisclosed places wherefrom she is getting considerable income by way of
interest
or dividends.

27. I need not analyze the evidence on record any further inasmuch as I am
relegating the parties before the learned Matrimonial Judge and therefore I
do not
want either party to be prejudiced at the inquiry, lest any observation
made by me,
inadvertently concludes the issue one way or the other.

28. The petition accordingly stands disposed of quashing the impugned
order dated 13.2.2007.

29. The matter is remanded for fresh adjudication before the learned
Matrimonial Judge. I direct that at the remanded proceedings, learned
Matrimonial
Judge would call upon the wife to file a detailed affidavit disclosing
investments
made by her as also render a true account of all withdrawals effected by the
wife
from the year 2001 till date. Further, the wife would be called upon to
explain details
of the monthly household expenditure as also expenses incurred on the
education and
medical treatment of the 2 daughters. Further, the wife would be called
upon to
explain withdrawals made in sum of Rs.41,78,000/- from 24.3.2003 to
28.1.2004.
Further, in respect of withdrawals made prior and subsequent thereto, the
wife would
be called upon to explain that if she could maintain herself and the 2
daughters in
approximately Rs.20,000/- per month preceding and succeeding the period
24.3.2003
to 28.1.2004, where has she spent the money withdrawn between 24.3.2003 to
28.1.2004.

30. An analysis of withdrawals made from the 2 accounts from time to time
shall be done by the learned Matrimonial Judge and thereafter the
application under
Section 24 of the Hindu Marriage Act filed by the wife would be re-decided.

Needless to state, principles culled out by me in para 10 above would be
kept in view
by the learned Matrimonial Judge while re-deciding the application.
31. No costs.

Sd/-
(PRADEEP NANDRAJOG)
JUDGE