Satish Kumar Sawhney vs Prem Sawhney on 21 February, 1997

    Satish Kumar Sawhney vs Prem Sawhney on 21/2/1997

JUDGMENT

   S.N. Kapoor, J.

   (1) This revision is directed against an order granting interim maintenance
to the wife of the petitioner under Section 24 of the Hindu Marriage Act
(hereinafter called the Act for short) at the rate of Rs. 800.00 per month along
with litigation expenses amounting to Rs. 1,500.00 .

   (2) In this case neither the relationship of husband and wife nor parentage
of the daughter of the parties has been disputed. It also appears to be an
admitted fact that the revision petitioner was and is working as a commission
agent of two firms, viz., M/s. Sawhney Enterprises and M/s.S. Mubarak Ali & Sons
since the year 1984-85, He received Rs. 17,824.00 as commission from these
firms. Out of this amount as per the husband's claim, he had to spend about Rs.
10.000.00 as travelling expenses on visiting station to station. It has also not
been seriously disputed by the petitioner that the respondent wife has no
independent source of income.

   (3) According to the wife/respondent she has no source of income of her own.
She was being given monthly expenses of Rs. 700.00 during her stay for about 3
years with the petitioner. The entire 'Stri' Dhan has been retained by the

   (4) The husband/petitioner claimed that neither his income was Rs. 5,000.00
nor he was getting any salary from any firm. He had left M/s. Abdul Ellahi &
Sons about 2 years ago. He was also not working for M/s. Suresh Glass Centre,
Mysore. However, it has not been disputed that he was working with M/s. Sawhney
Enterprises and not with M/s. Dalip Sawhney as a commission agent. He undertakes
touring jobs at Madras, Andhra'Pradesh, Goa and Maharashtra. He received Rs.
15,000.00 and odd in the financial year 1984-85. But he had to incur expenses on
his four tours ranging between Rs. 2,000.00 to Rs. 3,000.00 per tour and thus he
had spent about Rs. 10,000.00 . According to him, he earned Rs. 5,000.00 in a
year from M/s. Sawhney Enterprises. He also admitted that he has been working
for M/s. Mubarak Ali and received Rs. 2,824.00 as commission from them for the
year 1984-85. Thus, he received only a sum of Rs. 600.00 in this year i.e.
150.00 per month. Thus, he claimed that his income was Rs. 600.00 per month.

   (5) The Ld. Trial Court did not accept the contention of the revision
petitioner that out of this amount of Rs. 17.824.00 of commission he had spent
money amounting to Rs. 11,200.00 as claimed by the revision petitioner. She also
drew adverse inference against him on his failure to file the copies of his own
accounts in the accounts of the said firms and his failure to file affidavit of
any of the partners of these firms, to show the entire payments made by those
firms to the revision petitioner. She also felt that nobody would continue to
undertake this kind of touring job for an annual income of just about Rs.
5,000.00 or so. However it appears that Ld. Addl. District Judge ignored the
submission of the respondent wife that he was also a commission agent of other
firms by taking his entire annual income as Rs. 17,524.00 and monthly income at
Rs. 1,477.00 she fixed interim maintenance at the rate of Rs. 800.00 per month
and awarded litigation expenses amounting to Rs. 1,500.00 with effect from 9th
July, 1985.

   (6) Feeling aggrieved by the in pugned order, the present revision petition
has been filed. The impugned order has been assailed mainly on the grounds; (i)
his income has been wrongly assessed at Rs. 1,477.00 per month and contrary to
the evidence on record, (ii) his income from all sources was not more than Rs.
600.00 per month, (iii) The Ld. Trial Court has failed to consider that the
petitioner was also required to maintain his aged parents and that in the
aforementioned circumstances it would not be possible for him to spare more than
Rs. 150.00 per month, and (iv) "he is not doing any job for any firm whatsoever
and his total income from all sources comes to Rs. 3,000.00 . Out of his meagre
income he has to support his old parents besides meeting his religious
obligations towards the other family members and relations etc.". It is claimed
that the Ld. Trial Court has acted in arbitrary manner by awarding maintenance
at the rate of Rs. 800.00 per month besides Rs. l,500.00 on account of
litigation expenses to the respondent. According to him, the order was wholly
erroneous and is liable to be set aside.

     6.1.In Dev Dutt Singh Vs. Smt. Rajni Gandhi, 1984 Hlr (10) Delhi 346 para
13 it is observed as under: "13. The substance .of these judgments is this. Each
case must be determined according to its own circumstances. No two cases are
alike. These cases do not lay down any proposition of law. On the facts of the
particular case the court adjudicated what allowance will be reasonable to award
"having regard to the petitioner's own income and the income of the respondent".
If the present case illustrates anything it is this that rigid adherence to
"one-third" .rule may not always be just. Section 24 is not a code of rigid and
inflexible rules, arbitrarily ordained, and to be blindly obeyed. It leaves
everything .to the Judge's discretion. It does not enact any mathematical
formulae of one-third or any other proposition. It gives wide power, flexible
and elastic, to do justice in a given case."

     It is further observed in para 29 as under: 29". Section 24 uses both terms
"Maintenance" in the margin and "support" in the body of the section. The word
is doubtless one of the most elastic in the language. "Maintenance" means.the
act of maintaining, and denotes the regular supply of food, clothing and
lodging, the provisions of the necessaries and the convenience of life. These
will in each case depend in part on the standing of the parties, their wealth
and the environment to which they in their married state have been accustomed,
as I have said. Every case will be different and no case may be decided except
upon its particular facts."

     6.2.Under Section 24 of the Act while deciding the rat& of interim
maintenance the Court is, therefore, bound to consider the income of the
spouses, needs of the claimants in the light of the cost of living, number of
persons legally dependent and entitled to get maintenance from the husband or
the wife as the case may be, status of the parties and other relevant
circumstances involved in the case. Section 24 of the Act does not provide any
statutory restriction of awarding maintenance only to the extent of 1/5th or
1/3rd of the monthly income of the husband, though under Section 36 of the
Divorce Act - 1869 and under Section 39 of the Parsi Marriage & Divorce Act -
1936 such maintenance pendent lite could be awarded to the extent of 1/5 of the
husband's monthly average income. As has been mentioned in Section 24 of the Act
no such ceiling had been Fixed. The Courts have been awarding maintenance
ranging between 1/5th to 1/2 of the husband's monthly income but predominently
l/3rd of the monthly income of the husband has been awarded.

   (7) Now, coming to the point of maintenance of parents, the petitioner is
certainly entitled to maintain his aged parents and is not supposed to starve
and stop looking after them in view of the provisions of Section 125 of the Code
of Criminal Procedure But, for claiming so, firstly the petitioner was supposed
to establish that the parents could not maintain themselves. Secondly, he was
the sole person responsible to maintain them and it must be supported by
affidavits of parents. Simply, on the basis of a vague plea taken in the
revision petition, this aspect is not required to be considered any further.

   (8) One of the objections taken by the respondent was that no amount of
maintenance could be awarded under Section 24 of the Act for the maintenance of
the daughter and separate petition for maintenance had to be Filed. In the light
of the objection and the interim order passed in this matter an application has
been Filed by Kumari Arti, daughter of the petitioner. In reply to the same the
husband has alleged that his .income has gone down and this application was
false and fabricated. Therefore, before disposing of the revision petition this
aspect is also required to be considered.

   (9) Strictly speaking Section 24 does not refer to any maintenance for the
children. Section 24 refers to the husband and wife only. However, Court is not
powerless and without jurisdiction to award maintenance. Calcutta High Court in
Manoj Kr. Jaiswal v. Lila Jaiswal, has held that even if there is no separate

   application under Section 26 of the H.M. Act, the Court has power to grant
interim maintenance for children in an application u/s. 24 of the H.M. Act. In
Demodharan v. Meera, , Kerala High Court has held that it can invoke Section 26
in such a case to award maintenance to the children of the couple, even though
application is made under Section 24 or 25 of the H.M. Act. However, in Akasam
Chinna Babu.v. Akasam Parbati, and Bankim Chandra v. Smt.

   Anjali, contrary.view has been taken (See also Dr. D. Thimmappa v. R.
Nagaveni, Air 1976 karnataka 215, Smt. Suhasini v. B.R. Umakanth, , Narendra
Kumar Mehta v. Smt. Suraj Mehta, ). But in view of preference for justice
oriented

   approach over technical niceties, I would prefer Calcutta, Andhra, Kerala and
Karnataka view.

   (10) Before proceeding further it is desirable to briefly consider the scope
of Section 26 of the Act. Section 26 reads as under:

     "26.Custody of children - In any proceeding under this Act, the court may,
from time to time, pass such interim order and, make such provisions in the
decree as it may deem just and proper with respect to the custody, maintenance
and education of minor children, consistently with their wishes, wherever
possible, and may, alter the decree, upon application by petition for the
purpose, make from time to time, all such orders and provisions with respect to
the custody, maintenance and education of such children as might have been made
by such decree or interim orders in case the proceeding for obtaining such
decree were still pending, and the court may, also from time to time revoke,
suspend or vary any such orders and provisions previously made."

   (11) It would appear from a reading of Section 26 that interim orders for
maintenance of children can also be passed before passing of the Final orders
and decree. Consequently, if the court has jurisdiction to grant maintenance and
intended to grant maintenance for the minor child also, no exception could be
taken to the impugned order. The only thing which is required to be explained is
that a particular part of the amount of the maintenance awarded is intended for
the maintenance and education of minor child consistently with her wishes under
Section 26 instead of Section 24 of the H.M. Act.

   (12) In this case Kumari Arti, minor daughter has filed an application
claiming that her father/the revision petitioner is Sales representative of
various parties & firms and draws commission and salary and is earning more than
Rs. 5,000.00 per month from four Firms viz, M/s. Abdul Elahi & Sons, Delhi, M/s.
Suresh Glass Centre, Mysore, M/s. Dalip Sahni, M/s. Mubarak All & Sons, and
various other parties. She is a student and a sum of Rs. 75.00 per month is
spent on her tuition-free, Rs. 50.00 per month on conveyance and Rs. 250.00 per
month on books, stationery, dress etc. are being spent and she also needs a sum
of Rs. 300.00 per months for her diet and other bare necessities of life. Thus,
the petitioner/father is required to pay at least a sum of Rs. 675.00 per month
for her maintenance and Rs. 2.200.00 as litigation expenses. This application is
supported with affidavit of Smt. Prem Sawhney, mother of the child.

   (13) Satish Sawhney is contesting this petition of Kumari Arti inter alia on
the ground that she has no right to claim maintenance independently for no
proceedings have been Filed against her. He has not been able to go on tour to
attend to his agency work for he is required in Delhi and Meerut for proper
prosecution of the cases. His commission has dwindled due to reduced business on
account of disturbing state of affairs in various parts of the courtly. His
earnings have come down from the range of Rs. 6,000.00 per annum to about Rs.
3,000.00 to Rs. 4,000.00 per annum. He is not engaged in any service or
employment. -His enquiries have revealed that Smt. Prem Sawhney is earning a
handful salary of about Rs. 1,000.00 per month. He has claimed that he has
ceased to represent M/s. Abdul Elahi & Sons since later part of 1982. Similarly,
he had ceased to work as Sales representative of M/s. Anand Enterprises since
about December, 1982. He claims that he was never a Sales representative of M/s.
Suresh Glass Centre, Mysore, M/s. Suresh Glass Centre, Mysore was customer and
placed order to M/s. Anand Enterprises. He has denied that the applicant
daughter' Arti is a student and is paying tuition or conveyance as falsely
alleged.

   (14) In ordinary course such an application should have been filed before the
Ld. Trial Court. But in view of the fact that learned Addl. District Judge
considered need of the child while awarding maintenance at the rate of Rs.
800.00 per month and the peculiar history of this case this application has to
be disposed of here by this Court along with the revision petition.

   (15) Having gone through the record, it appears few facts are admitted. The
petitioner was at least working with the firms, as alleged by Prem Sawhney and
Arti Sawhney and they are M/s Abdul Elahi and Sons, Delhi, S. Mubarak Ali and
Sons, Delhi-6, Mr. Dalip Sawhney, M/s Sawhney Enterprises and M/s Anand
Enterprises. Now he claims that he has ceased to work for three and is now
working for two. No reason is being given why he has ceased to work for others.
No letter or communication from these persons terminating his agency, which he
would have received in ordinary course of business, has been produced, for the
reasons best known to him. According to photocopies of orders/letters filed by
the wife along with her reply, it is apparent that he had booked orders for M/s
S. Abdul Elahi & Sons, M/s Anand Enterprises on 21st March 1981. On 22nd March,
1981 he sent bank draft to M/s. Ramesh Anand alone me worth Rs. 23,537.16.00
from Banagalore. On 28th March, 1981 from Hubli he sent Rs. 9,700.00 to Dalip
Sawhney. Thus from these two persons leave aside others, he was supposed to get
commission on the sales of Rs. 33,270.16.00 . If he has similarly booked orders
for other firms also then at least orders worth Rs. 20,000.00 would have been
booked for other Firms if not Rs. 35.000.00 . This appears to be his one week's
business. Supposing, he is working on purely commission basis he would have
spent at least Rs. 1,050.00 in lodging and touring conveyance alone in 7 days,
leave aside travelling expenses from place to place. Tour expenses therefore
claimed by the petitioner appear to be rather on lower side. He had not
disclosed percentage of commission neither before the Trial Court nor here. In
view of orders/letters, it can be safely assumed that he would have booked
orders worth Rs. 50,000.00 per week and remained on tour in one stretch for two
months, he would have booked orders worth Rs. 4,50,000.00 and at least he would
have received 2 per cent as commission if not 10 per cent, he would be earning
Rs. 9,000.00 in two months, if he undertakes such four tours after education of
the amount spent as conveyance and tour expenses, his annual income would be Rs.
24,000.00 minimum, if not Rs. 60.000.00 as alleged by the wife.

   (16) It also appears that for the First time he has tried to explain his
trade connections with M/s. Ramesh Anand and M/s. Suresh Glass Centre, Mysore
after there documents have been Filed.

   (17) From his letter dated 26th September, 1981 to Dalip Sawhney, it is
apparent that he purchased 102 dozen Gas Burners, 6 Gases Anil Punj, Barnel, 10
Gas Nipple B.K. worth Rs. 6,726.00 and added therein packing charges and taxi
fare. The petitioner thus suppressed that he was also making purchases for at
least Dalip Sawhney if not others. It does not appear to be ex gratia, in view
of the tenor of the letter.

   (18) Surprisingly enough, Annexure- 'A' & 'B' Filed by the petitioner do not
disclose the terms of agency, specially rate of commission on sales and
purchases. If they could give such explanations why could they not give copy of
his account in their account books. Ultimately, the petitioner has fallen to
adopt a logic based on the argument of the wife that an amount of Rs. 700.00 per
month was given to the wife per month. He alleged that accepting Rs. 700.00 per
month were paid for 3 persons as household expenditure. She has already been
given Rs. 350.00 per month. If he remained 8 months out of station and gave Rs.
700.00 per month, his income was obviously more than Rs. 700.00 per month i.e.
Rs. 8,400.00 . Even this does not justify any of his assertions.

   (19) Since the husband petitioner is interested in frustrating the claim of
the wife and the child by suppressing his income and reducing it to the extent
possible, this kind of estimation has become essential in order to do
substantial justice in between the husband and wife and the victims of their
internecine quarrels. It must be mentioned that while husband suppresses his
income for obvious reasons, it is very difficult for the wife and child like
Arti to ascertain husband's income - especially of a roaming agent acting on
behalf of not one but several firms. This Court does not have any other option
but to follow the exercise indicated in Renu Jain v. M.P. Jain, 1986 (2) Hlr,
148 (Delhi) and to reject the revision of the petitioner. In view of the
foregoing discussion, I would hold that he was earning at least Rs. 2,500.00 per
month from commission agency business. This would have been increasing year
after year in view of increasing contacts and the constant increase in the value
of goods sold and purchased by him.

   (20) Now, coming to the alleged income of Rs. 1,000.00 of Prem Sawhney, it is
just a vague allegation without there being any material on record.
Consequently, it has to be rejected.

   (21) Seeing the fact that Smt. prem Sawhney herself is graduate, it appears
illogical to say that child Arti would not be studying. The amount of tuition at
Rs. 75.00 per month,. Rs. 50.00 as conveyance charges in the year 1986 was not
unreasonable. Books, stationery, and dress etc, would certainly require Rs.
3,000.00 per year. Therefore, Rs. 250.00 claimed is also reasonable. Seeing the
increasing cost of living an amount of Rs. 300.00 for a growing child is not a
luxury, but necessity. During last 10 years this must have further increased
twice. The petitioner can certainly spend about 1/3rd of his income on his only
daughter in his minimum monthly income of Rs. 2,500.00 per month. Her claim of
Rs. 2,200.00 as litigation charges also appears to be reasonable. As regards
objection of the petitioner about claim of the daughter for maintenance, the
petitioner has neither claimed nor is capable to keep his daughter with him in
view of nature of his business. He gave Rs. 700.00 per month in 1981-82 for
household expenses and he remained out for 8 months. Thus for 28 months for all
the three, he spent Rs. 8,400.00 . Thus on average he used to spend Rs. 300.00
per month on her when she might not be school-going. Now, if he expects that his
wife could maintain herself and Arti in the same amount, then he would be just
neglecting the child and passively but surely foreing his wife and daughter
either to go astray or to commit suicide. Our legislature contemplated such a
situation and provided for it in Section 26. Consequently, objection of the
petitioner has to be overruled.

   (22) Since wife has nothing to support herself as has been observed earlier,
she is entitled to live in a manner which is commensurate with her social status
and the social status of her husband. The wife should not be relegated to a
lower standard of living than that which the husband enjoys (see Devinder Kaur
v. Kanwaljit Singh, 1976 Hlr 96, Sandeep Kaur v. Charanjit Singh, 1977 Hlr 513
and Dharami chand v. Smt. Shobha Devi, ). Ignoring the norm of one-third of the
income of the husband, she is entitled to get Rs. 600.00 per month at least in
order to maintain herself, in view of the income of the husband, and
requirements of the husband, the wife and the child and expenditure incurred to
maintain relations with aged parents and other relatives. She is also entitled
to litigation expenses amounting to Rs. 2,200.00 .

   (23) In view of the foregoing reasons, the petitioner shall pay maintenance
allowance to his wife at the rate of Rs. 400.00 per month for herself and Rs.
400.00 for her daughter from 9th July, 1985 alongwith litigation expenses of Rs.
l,500.00 till 17th March 1986. Prem Sawhney is entitled to maintenance at the
rate of Rs. 600.00 with effect from 18th March 1986 while Kumari Arti is
entitled to interim maintenance u/s. 26 of the Act at the rate of Rs. 675.00
with effect from 18th march, 1986 alongwith litigation expenses amounting to Rs.
2,200.00 .)

   (24) The revision petition, counter claim of the wife as well as I he
application of the daughter for awarding maintenance and the prayer for
enhancement of maintenance allowance are disposed of accordingly.

   (25) A copy of this order be sent to the learned Trial Court through learned
District Judge for information and to proceed in accordance with law.