FAO(OS) No.552/2006 Page 1

REPORTABLE

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ FAO(OS) NO. 552 OF 2006

% Date of Decision : 7

th

December, 2007.

GAURAV NAGPAL .... Appellant in person.

VERSUS

SUMEDHA NAGPAL .... Respondent.

Through Mr. Rajat Aneja, Advocate.

CORAM:

HON'BLE DR. JUSTICE MUKUNDAKAM SHARMA, CHIEF JUSTICE

HON'BLE MR. JUSTICE SANJIV KHANNA

1. Whether Reporters of local papers may be

allowed to see the judgment?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported

in the Digest ?

SANJIV KHANNA, J:

1.The appellant, Mr. Gaurav Nagpal is husband of

Mrs.Sumedha Nagpal, the respondent. He impugns the Order

dated 5

th

May, 2006 passed by the learned Single Judge in I.A.

No.6848A/2000 in CS(OS) No.1844/2002 granting maintenance

FAO(OS) No.552/2006 Page 2

of Rs.25,000/- p.m. w.e.f. 1

st

August, 2000 till the disposal of the

Suit filed under Section 18 of the Hindu Adoption and

Maintenance Act, 1956 (hereinafter referred to as the Act, for

short).

2.The parties got married on 14

th

October, 1996 and have a

child. Custody of the child is not the subject matter of the present

appeal and the suit out of which the present appeal arises. We

are informed that the question of custody of the child is now

subject matter of an appeal filed by the appellant before the

Supreme Court as the Guardianship Court and the High Court

have decided the said question in favour of the respondent-wife.

3.Though no divorce proceedings are pending between the

parties, it is apparent that there are disputes and differences

between the two of them which has resulted in several litigations

and criminal cases with allegations and counter allegations

against each other. However, the short question before us is the

quantum of interim maintenance which should be awarded and

paid to the respondent by the appellant.

FAO(OS) No.552/2006 Page 3

4.The respondent belongs to a middle class family and is

presently teaching in a school and earning about Rs.10,000/-

p.m. The appellant, on the other hand, claims that he is not

gainfully employed and is entirely dependent upon his family

members. He relies upon his income tax returns. He, however,

admits that the child is studying in G.D. Goenka Public School.

He further admits that he is residing at Sainik Farm and also

owns several immovable properties. It is however stated that the

factum that he owns immovable properties should not be taken

into consideration as he is not earning any regular income from

the said properties.

5.Right to maintenance is an incidence of status from an

estate of matrimony. It has its basis in social conditions in the

United Kingdom where a married woman was economically

dependent upon her husband and was intended to secure justice

to her. Section 18 of the Act recognises, accepts and gives legal

right to a married woman to claim maintenance from her

husband subject to the condition that the requirements of the

FAO(OS) No.552/2006 Page 4

Sections are satisfied. Section 18 itself does not specify the

minimum or maximum amount that can be awarded as

maintenance to a wife. This is determined by the Courts keeping

in mind the social and economic status of the parties, reasonable

want and requirements of the wife and income and status of the

husband. Maintenance awarded to the wife should be sufficient

to enable her to live in somewhat the same degree of comfort as

was available in her matrimonial home but it should not be

exorbitant and so high that the husband-non-applicant is unable

to pay and exposes him to contempt or other coercive

proceedings. Lifestyle of the parties during happier times and

comparison of the lifestyle of the claimant-applicant after the

relationship has soured, has to be taken into consideration to

determined just and fair maintenance to be awarded to the wife

and what should be paid by the husband. The maintenance

awarded has to also take into consideration the income and

earnings of the husband-non-applicant.

6.Learned Single Judge in the impugned Order dated 5

th

FAO(OS) No.552/2006 Page 5

May, 2006 has referred to the pleadings of the parties and

thereafter satisfied himself whether the Petition under Section 18

of the Act is maintainable and the conditions mentioned in the

said Section are prima facie satisfied. We have also examined

the said Petition and the allegations made therein by the

respondent against the appellant, to justify the claim for

maintenance. We are satisfied that the respondent has been

able to make out a prima facie case on maintainability of the

petition under Section 18 of the Act. A perusal of the averments

made in the said petition indicates that there are allegations of

physical violence, threats to the respondent and her family

members. We are not reproducing the said allegations, least it

causes a prejudice to the appellant. In fact it was the quantum of

interim maintenance fixed by the learned Single Judge which

was seriously contested and argued before us. The fact that the

respondent may be entitled to claim maintenance was not

seriously challenged and questioned before us in this appeal

against the order awarding interim maintenance.

FAO(OS) No.552/2006 Page 6

7. The appellant had relied upon his income-tax returns and

the figures mentioned therein in support of his contention that the

interim maintenance of Rs.25,000/- fixed by the learned Single

Judge is exorbitant and unreasonable. It was also contended

that the income and properties of the HUF of which the appellant

is a member cannot be taken into consideration while computing

interim maintenance. It was urged that the respondent was guilty

of fraud as she had failed to disclose her employment and the

fact that she was earning about Rs.10,000/- per month.

8.The Courts in India while deciding the question of

maintenance, interim or final, are conscious of the fact that there

is a tendency among parties not to disclose truly, fully and

completely, the income earned by them. This is more so in cases

of self-employed persons or persons employed in unorganized

private sectors where there is lack of transparency and tendency

to conceal income earned for various reasons. It is admitted in

the Government and independent survey reports that

unaccounted form of money and wealth accounts for, or is equal

FAO(OS) No.552/2006 Page 7

to about 20% of the country's Gross Domestic Product. (See,

Report of Indra Gandhi Institute of Development Research-titled

'India Development Report 1999-2000' ). Some other surveys

give a higher percentage.

9.Courts while deciding the matters relating to maintenance

including interim maintenance can take into account social and

economic ills and unethical malpractices prevailing in the society

at the given time. Sections 56 and 57 of the Evidence Act, state

that Courts shall take judicial notice of all matters of public

history, literature, science or art. Recognition of facts without

formal proof is a matter of expediency, and need and wisdom to

recognise and accept facts in public knowledge is

unquestionable. In Onkar Nath versus Delhi Administration

reported in (1977) 2 SCC 6, it is observed that no Court insists

on formal proof, by evidence, of notorious facts of history, past or

present. Judicial notice, in such matters, takes the place of proof

and is of equal force. In fact as a means of establishing

notorious and widely known facts, it is superior to formal means

FAO(OS) No.552/2006 Page 8

of proof.

10.Keeping these aspects in mind learned Single Judge in the

case of Bharat Hegde versus Saroj Hegde (C.M.(M)

No.40/2005) has held that in cases of self-employed persons or

persons employed in unorganized sector, tax compliance is an

exception and tax avoidance is a norm and therefore in each

case the Court has to carefully examine and verify whether or not

the income disclosed by a party is truthful and correct. In

paragraph 19 of this judgment it was observed as under:-

“19. As noted herein above,

unfortunately, nobody pays proper

taxes to the government. Self

employed persons seldom disclose

their true income. Prudence and

worldly wisdom gained by a Judge

before whom citizens of all stratas of

society litigate it can always be used

by a Judge to broadly ascertain as to

what is going on in the society. By no

means, the said knowledge can be

used where the law requires a fact to

be conclusively proved. But where

the law requires a judge to form an

opinion based on a host of primary

data, a Judge can formulate an

opinion pertaining to the likely

FAO(OS) No.552/2006 Page 9

income from the capital asset of the

husband.”

11.In this case the learned Single Judge has culled out eleven

factors that should be taken into consideration for deciding an

application under Section 24 of the Hindu Marriage Act, 1955 the

same are :-

1.“Status of the parties.

2.Reasonable wants of the

claimant.

3.The independent income

and property of the claimant.

4.The number of persons, the

non-applicant has to

maintain.

5.The amount should aid the

applicant to live in a similar

lifestyle as he/she enjoyed in

the matrimonial home.

6.Non-applicant's liabilities, if

any.

7.Provision for food, clothing,

shelter, education, medical

attendance and treatment 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 sources or

FAO(OS) No.552/2006 Page 10

correct sources are not

disclosed.

10.The non-applicant to defray

the cost of litigation.

11.The amount awarded u/s.

125, Cr.PC is adjustable

against the amount awarded

u/s. 24 of the Act.”

12.The said judgment of the learned Single Judge of this

Court has been followed in the case of Vinod Jolly versus

Sunita Jolly (RFA Nos. 122/2007 and 263/2007) decided on 25

th

May, 2007 reported in 2007 (97) DRJ 205, after holding that

reliance on income-tax returns in the context of business owned

by the appellant would be of no avail.

13. If we examine the pleadings of the parties in the present

case and also the lifestyle of the appellant and the list of

immovable properties owned by him, it is clear that he is a man

of substantial means and is living a comfortable and luxurious

life. The appellant is residing in a house located at Sainik farms,

stated to be owned by his brother and constructed on 3000 sq.

yds of land. The son of the parties is studying in G.D.Goenka

FAO(OS) No.552/2006 Page 11

Public School, one of the most expensive public schools in Delhi

and is also, as per the appellant himself, participating and going

for out-door activities like lawn tennis, swimming, photography,

taekwando, etc. It is also admitted that an expenditure of

Rs.10,000/- per month is being incurred on the child by the

appellant. The appellant's brother has controlling interest and is

managing the affairs of a public limited company which as per

the allegations made in the Petition under Section 18 of the Act

has turnover of about Rs.400 crores. The appellant has admitted

that he has close ties with his brother and mother. This fact can

be inferred from the fact that the Nagpal family has some assets

which are stated to be owned by a Joint Hindu Family, of which

the appellant is a member.

14. The following chart gives details of various properties

which as per the respondent are owned by the appellant and

the reply and contentions raised in rebuttal by the appellant:

FAO(OS) No.552/2006 Page 12

PROPERTIES

AS PER THE RESPONDENT AS PER THE APPELLANT

1. Factory measuring 1000 sq.

yds at 25, MIE Bahadurgarh,

Haryana with machinery worth

Rs. 50 lacs and investment of

Rs.25 lacs as working capital.

1. Ownership of land and

factory is admitted. It is

however denied that machinery

worth Rs.50 lacs and Rs.25

lacs towards working capital as

on 31.03.2007 was made. But

investment made towards

machinery installed and

working capital limit have not

been stated.

2.The appellant was owner of

plot measuring 1.8 acres

situated at Vill. Larsohli, opp.

Motel Kanak Garden near

Sonepat, Haryana which was

sold for Rs.28 lacs after June,

1999.

2.Ownership of land is

admitted. It is however denied

that the land has been sold. It

is claimed that the land being

an agricultural land does not

yield any income.

3. The appellant is owner of 1

acre and 300 sq. yds of land in

Vill. Kamakspur, distt. Sonepat,

Haryana.

3.It is stated that the

agricultural land was owned by

Padmaja Polymers Pvt. Ltd.-a

company belonging to and

owned by the appellant but has

been sold. The appellant has

not given the date of sale and

the consideration received.

4. 6 canals of land in Vill.

Began, Distt. Sonepat,

Haryana.

4. The appellant has stated

that the land is an agricultural

land which yields no income

and belongs to Padmaja

Polymers Pvt. Ltd. a company

belonging to and owned by the

appellant.

FAO(OS) No.552/2006 Page 13

5.Land situated in Lal Dora,

Najafgarh, Nangloi Road,

Delhi.

5. It is admitted that the

appellant owns 100 sq. yds of

land in Lal Dora, Om Vihar,

Delhi. It is stated that the

market value of the land is only

Rs.1 lacs and it does not yield

any income.

6. 300 sq. yds of property No.

B-17, Gujranwala Town, Part II,

Delhi was sold by the joint

Hindu family of which the

appellant is member for

Rs.1.40 lacs in June, 1999.

6. It is stated that the property

consist of 233 sq.yds. and

belonged to Mr. Motilal Nagpal,

HUF and after the demise of

Motilal Nagpal the same

belonged to Smt. Padma

Nagpal, HUF and as HUF has

not been dissolved its financial

affairs are not relevant for the

purpose of the present Petition.

The details of the sale

consideration received have

not been stated.

7. Plot no. 7209, DLF,

Gurgaon, Haryana measuring

250 sq. yds was sold on

16.04.1997 for Rs.33 lakhs but

the sale was under-valued on

paper to avoid payment of

taxes.

7. The plot was jointly owned

by the appellant and his mother

in equal share and was sold for

Rs.25 lacs.

FAO(OS) No.552/2006 Page 14

8. Farm house on plot no.C-

129 (C.1129) Ansal Housing

Pvt. Ltd., Gurgaon valued at

Rs.10 lacs.

8. The plot is jointly owned by

the appellant, his mother and

brother with each having 1/3

rd

undivided share. There is no

income from the said plot and

the value of the said plot is not

more than Rs. 8 lacs. The said

plot has not yet been registered

in the name of the appellant

and others.

9. Flat at Silver Oak Apartment,

DLF, Gurgaon, Haryana which

was sold on 24.05.1997 for

total consideration of Rs.22

lacs.

9. The ownership of the flat is

admitted but it is stated that the

flat was sold for Rs.9 lacs as

the appellant was unable to

pay the instalments in time and

had defaulted in his

commitments.

10. Plot at Tirath Nagar, Karala

Village, Delhi which was sold

for Rs.6 lacs on 26.06.1997.

10. Ownership and sale are

admitted but it is claimed that

the land was agricultural land

and was sold for Rs.1.8 lacs.

FAO(OS) No.552/2006 Page 15

11. Appellant is running

business in the name of M.G.

Polymers, A.K. Investments

and Swastic Holdings and has

control in interest in Padmaja

Irrigation Pvt. Ltd and Padmaja

Polymers Pvt. Ltd.

11.It is admitted that the

appellant is carrying on

business in the name of M.G.

Polymers and A.K.

Investments, being

proprietorship concerns of the

appellant. The appellant also

admits that he has control in

interest in Padmaja Irrigation

Pvt. Ltd. and Padmaja

Polymers Pvt. Ltd but it is

stated that both the companies

have run into losses and have

stopped manufacturing

activities.

15.It is clear from the above that the appellant owns

substantial immovable properties in and around Delhi. The value

of these properties has gone up substantially during the last 3-4

years and have considerable market value. In addition, the

appellant had also sold some properties in the late 1990s, when

again the property prices were reasonably high. The appellant is

a man owing considerable wealth and assets therefore it is

natural to expect that he has a high standard of living and is used

to comforts and luxury. HUF may be a separate assessee under

the Income Tax Act, 1961 but it is not an independent juristic

FAO(OS) No.552/2006 Page 16

person. The appellant has failed to give details of the assets and

income of the HUF of which he is a co-parcenor.

16. Learned counsel for the appellant laid considerable

emphasis on the Order passed by the Income Tax Tribunal for

the Assessment Year 1994-95 deleting addition of Rs.68 lacs out

of the total addition of Rs.70 lacs made by the Assessing Officer.

In this regard we may refer to the last part of the Order dated 27

th

January, 2004 passed by the Income Tax Tribunal which reads

as under :-

“GP (Gross Profit) disclosed

by the assessee is comparable

with other similar processes and

normally no trading addition is

called for. However, in the

present case it is seen that the

assessee had been making

certain payments, which cannot

be properly accounted for. The

expenses on account of transport

have also not been supported by

any bill or receipt and the

genuineness of all the expenses

is doubtful. Keeping in view the

extent of such instances, we

deem an addition of Rs.2 lakhs to

the trading results as reasonable

FAO(OS) No.552/2006 Page 17

(as against Rs.1 lakh sustained

by Commissioner of Income Tax

(Appeals) and Rs.65 lakhs made

by the Assessing Officer.”

17. A reading of the above paragraph proves that the Income

Tax Tribunal was not satisfied about the accounts maintained

and relied upon by the appellant. It was held that some payments

had not been accounted for and certain deductions claimed

could not be supported by corresponding vouchers. The above

findings of the Income Tax Tribunal itself shows that the income

tax returns filed by the appellant cannot be relied upon. Even in

the reply filed to the Petition under Section 18 of the Act, the

appellant has stated in reply to paragraph 14 of the Petition

under Section 18 as under :-

“ She would take out money

from the Respondent's locker and

give it to her parents without the

Respondent's consent. When the

Respondent learned thereabout

and confronted her, she turned

violent.”

18. The above statements made by the appellant on oath is

FAO(OS) No.552/2006 Page 18

an admission that the appellant was in the habit of keeping

money in bank lockers and not in his bank accounts. Thus there

is substantial material and ground to ignore the income disclosed

by the appellant in the income tax returns and assume his

income and earnings on the basis of assets owned by the

appellant and keeping in view his lifestyle. By this guesswork we

can form prima facie opinion about the total quantum of income

that the appellant was/is earning. It can safely be stated that

award of interim maintenance @ Rs.25,000/- p.m. is not

unrealistic and arbitrary.

19. We may note here that the respondent is residing in a

DDA flat along with her parents in west Delhi. It is a small

apartment compared to palatial house in which the appellant is

residing. Keeping these aspects in mind we feel that the interim

maintenance awarded by the learned Single Judge cannot be

regarded as exorbitant and unreasonable. Of course the final

order of maintenance will depend upon the evidence led by the

parties and the opinion expressed in the impugned Order and in

FAO(OS) No.552/2006 Page 19

this Order are merely prima facie opinions and will not be binding

on the court at the time of final decision.

20.We may also note here the objection raised by the

appellant that the respondent is guilty of fraud as she did not

mention about her employment w.e.f. September, 2000 and

salary of about Rs.10,000/- p.m. being earned by her. Similar

contention was also raised before the learned Single Judge and

an application under Section 340, Cr.P.C. was filed on account of

failure of the respondent to disclose the said facts. Learned

Single Judge examined the contentions raised and by an Order

dated 8

th

November, 2005 had disposed of the said application,

inter alia, holding that the factum of income ought to have been

disclosed by the respondent but the respondent had apologised for

the said mistake and had stated that the mistake had occurred as full

facts were not communicated to her lawyer. Therefore, proceedings

against the respondent should be dropped. The said Order

passed by the learned Single Judge on 8

th

November, 2005 in

Criminal Miscellaneous No.172/2002 has been accepted

FAO(OS) No.552/2006 Page 20

by the appellant and has not been made subject matter of any

appeal. In these circumstances this objection raised by the

appellant is rejected.

21.In these circumstances, we do not find any merit in the

present Appeal and the same is accordingly dismissed. No

costs. Dasti.

(SANJIV KHANNA)

JUDGE

(DR. MUKUNDAKAM SHARMA)

CHIEF JUSTICE

DECEMBER 07, 2007.

P