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Wife needs to prove that she is not working

IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : Hindu Marriage Act

Date of Reserve: 28.7.2008
Date of Order: 5.9.2008
CM(M) No. 1534/2006

Parnab Kumar Chakarborthy … Petitioner
Through: Mr. (Dr.) J.C.Vashist, Advocate

Versus

Ruma Chakarborthy … Respondents
Through: Ms. Manali Singhal, Advocate
JUSTICE SHIV NARAYAN DHINGRA

JUDGMENT

The petitioner is aggrieved by an order dated 22.8.2006 passed by the
learned ADJ on application under Section 24 of the Hindu Marriage Act as
well as on application under Section 151 of the husband making a prayer for
giving visitation rights to him to visit his daughter.

2. The learned ADJ after considering the gross salary of the husband,
working as Shift In-charge, as Rs.6625/-, fixed a maintenance of Rs.2,000/-
per month for wife and daughter to be paid from the date of moving of the
application and also fixed Rs.5,000/- as litigation charges. He directed the
petitioner to clear arrears within a period of five months and to pay current
maintenance by 10th day of each succeeding month w.e.f. September, 2006
and ordered that in case of default of payment of the current monthly
maintenance, the husband would have to pay 20% extra of such maintenance
amount. On visitation rights, the learned ADJ observed that he had called the
minor daughter, who did not respond positively towards the father and
started crying in the Court. He therefore, considered that no fruitful purpose
would be served by granting visitation rights since the child was not having
positive response to the father.

3. The petitioner in his petition has stated that the learned Court has taken
into account his gross salary while his net salary after deduction was hardly
Rs.5,000/-. He had to maintain two houses. He was working in Bhiwadi in
Rajasthan as Shift In charge, his daughter from the earlier deceased wife was
living at his ancestral house at Rai Barelli with his ailing mother. Thus, he
had to maintain two units; one at Rai Barelli and other at Rajasthan. He also
pleaded that the learned ADJ had not taken into account the fact that the
wife was a professional beautician, who had done diploma in beauty-culture
and hair dressing and in the bio data supplied to him at the time of marriage,
it was stated that she was a freelance beautician doing the work of
beautician. He further stated that the account of expenditure given by the
wife would show that she was living in luxury, which was not possible out
of the meager income of her father, who was a retired Naval Officer and
since she was qualified and was spending a lot so, there was a presumption
that she was earning and she had not come to the Court with clean hands.

4. A perusal of salary certificate of the petitioner would show that while his
gross salary was Rs.6625/- deductions of EPF of Rs.636/-, ESI- Rs.116/-, a
H.Ded. of Rs.500/- were being made. He also shown deduction of Mess of
Rs.496/- . I think deduction of Mess and H. Ded. were not statutory
deductions so he was entitled to only statutory deductions, his net salary
would be a little less than Rs.6,000/-. The bio data of the wife given at the
time of marriage to the petitioner shows that she had done two years diploma
in Beauty Care and Hair Dressing from South Delhi Polytechnic in 1st
Division and she was a freelance beautician. It was stated that she had her
own business and got good income. The Trial Court observed that the
husband had failed to establish that the wife was running beauty parlour.
However, the Trial Court ignored the fact that she was a freelance beautician
meaning thereby that she was visiting the houses of her clients. In her biodata,
it was admitted she was having good business. The onus was on her to
show as to when she closed down the business. She did not discharge this
burden. I consider that the wife was able to maintain herself and was not
entitled to any maintenance however the husband had responsibility of
maintaining the daughter. The husband had another daughter to maintain. No
doubt he is working in Rajasthan and his daughter is living in his ancestral
house at Rai Barelli. If his net income is divided in four parts and two parts
are left to him and one part each to his daughters, I consider that a monthly
maintenance of Rs.1500/- would be proper maintenance. The order of the
trial Court is modified accordingly. The petitioner shall pay maintenance of
Rs.1500/- per month during the pendency of the petition filed for divorce
from the date of application, to the wife for maintenance of the daughter.
However, the condition put by the learned ADJ of payment of 20% penalty
is unjustified. An order of maintenance under Section 24 of the HM Act is
an executable order and if the maintenance is not paid, the defence of the
husband can be struck off and execution can be carried out. In case of late
payment, the wife would be entitled to a reasonable interest over the unpaid
amount and in my view 10% interest is a reasonable interest on the unpaid
amount for the unpaid period.

5. The petition for divorce has been filed by the wife. The husband has in
fact filed a petition under Section 9 to ask the wife to join him. I consider
that in such a situation the husband is not liable to pay litigation expenses to
the wife.

6. As far as visitation rights of the father with the child are concerned, I
consider that there is no necessity of interference with the order of the
learned ADJ. It is petitioner’s own case that right from the birth, the child
has been living with the mother. The interaction of the child with the father
has been minimal. Under these circumstances, I consider that the trial Court
rightly arrived at a conclusion that it would not be in the welfare of the child
to compel her to see her father against her wishes. The petition is allowed to
the above extent.
Sd/-
SHIV NARAYAN DHINGRA, J.

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