Delhi High Court-Parnab Kumar Chakarborthy vs Ruma Chakarborthy on 5 September, 2008

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Reserve: 28.7.2008

Date of Order: 5.9.2008

CM(M) No. 1534/2006

05.09.2008

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

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

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest? 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 bio-data, 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. September 05, 2008 SHIV NARAYAN DHINGRA, J. vn

CM(M) No. 1534/2006 Parnab Kumar Chakarborthy v. Ruma Chakarborthy Page 1 of 5

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