Bhelloriya & Lawyers

THE HIGH COURT OF DELHI AT NEW DELHI

C.C.P No. 21/2002 with C.S (OS) No. 2075/2000

Date of Decision: 05.02.2013

MRS. INDIRA SONTI ...….Plaintiff

Through: Mr. Tarique Siddiqui, Advocate with Ms. Rakshan Ahmed and Mr. Aditya Gaur, Advocates

Versus

MR. SURYANARAYAN MURTY SONTI ….... Defendant

Through: Mr. G. Tushar Rao, Advocate

CORAM: HON’BLE MR. JUSTICE M.L. MEHTA M.L. MEHTA, J.

1. This is a suit for a decree of 1) personal maintenance u/S 18 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as “the Act”) and 2) for damages against the husband (defendant no.1) and the father-in-law (who has now been deleted from the array of defendants).

2. The claim of the plaintiff for maintenance arises from the fact that she married the defendant no.1, who was domiciled, settled and was employed, as an in-house developer with M/s Impact Systems Inc., a software development company, in Wilmington, Delaware, U.S.A and was earning USD 5000 per month plus perks and bonuses etc. The plaintiff‟s case is as follows. She held a Post Graduate Diploma in Management and prior to the marriage was a permanent employee, as a secretary, in Tata Energy Research Institute (TERI), New Delhi and was about to be promoted. She gave up this position in India to marry the defendant in Delaware. On 23.04.1999, the marriage was solemnized before the Clerk of the Peace, who issued a marriage certificate. On 25.04.1999, the wedding was solemnized according to the Hindu traditions, rite and rituals in the Lord Venkateswara Temple, Pittsburgh, U.S.A. On the same day, a demand of Rs. 10 Lakhs in cash along with additional gifts was made to her as a precondition for her to continue staying with the defendant no.1. She tried to persuade the defendant to not force her father to pay the sum asked for, as she was aware that a large sum was spent from his savings for her marriage, but the defendant did not listen to her and demanded divorce for not meeting his demands.

3. The next day, she and her father were taken to the house of her sister-in-law (Dr. Gayatri Sonti) in Bethlehem, Pennsylvania where they were directed to return to India. On 01.05.1999, a few hours before the flight was scheduled, the defendant along with his parents approached her saying that he has reconsidered the matter and that she could live with him provided she gave him five sheets of blank paper bearing her signatures. On the impression that the marriage between the parties would be successful and that no problem would arise, her father left for India on 04.05.1999. But, relations between her and the defendant became more and more strained and she eventually was brought to a state of depression. She alleged that she was insulted by the defendant on a number of occasions and that he threatened to defame her if her father did not meet his demands. On 08.05.1999, the defendant informed her that he had consulted a legal counsel and that their separation would start from the 12th of the same month and that she could go anywhere she liked. The father of defendant phoned her father in New Delhi and informed him that he was sending her back to India and subsequently she was put on a flight bound for India on 11.05.1999

4. On returning to India, she filed a suit for maintenance before the Family Court, Wilmington, Delaware, USA. The Clerk of the Family Court replied back stating that there were some deficiencies with regard to service of notice to the opposing party (the defendant herein). To rectify the said deficiency, she on 28.07.1999, sent a copy of the maintenance petition along with an affidavit to that effect to defendant no.1. Similar letters were also sent to various offices in the country and abroad including the American Embassy, New Delhi, and the Indian Embassy, Wilmington. Replying to the said notice, defendant no. 1 sent a letter to her dated 01.08.1999, asking her to refrain from any future communication with him and that the Family Court at Delaware would decide the course of their divorce. She also received a copy of information addressed to the Consulate General of India, New York from the Embassy of India, Wilmington whereby it was informed that the Consulate General had the jurisdiction as per the address enclosed in the letter and that it was their job to inform the addressee, but she never got any response from the Consulate. On contacting the Clerk of the Family Court, Delaware for further information on her maintenance petition, she was informed that as no decree for separation was filed by the defendant no.1; the court could not proceed further with her maintenance petition.

5. The plaintiff has filed the present suit for maintenance u/S 18 of the Act. Damages are also claimed to the tune of Rs. 50 Lakhs. An application for interim maintenance was filed by her which was allowed by this Court vide order dated 27.07.2001, whereby the defendant was directed to deposit maintenance at the rate of USD 400 per month with effect from the date of institution of the suit i.e. February 2000. An appeal was preferred against the said order before the division bench of this Court which vide order dated 19.10.2001, stayed the said order and directed the defendant no 1 to deposit the said maintenance till that date. However, no amount was deposited and the appeal was subsequently disposed for non-prosecution. She subsequently filed an application under Order VIII Rule 10 of the Civil Procedure Code (for short “the Civil Code”) and a petition for Contempt of Court. Owing to the lack of instructions from the defendant, the Counsel for the defendant stated that he was not in a position to assist the Court and consequently, his defence was struck off and he has been proceeded ex-parte. The defendant resumed contact with his counsel and filed an application for setting aside the ex-parte order. This Court vide order dated 24.09.2003 was pleased to allow the defendant to participate in the proceedings, but only for the purpose of arguments. It was also stated by the plaintiff that she had remarried on 03.11.2003. The counsel for the defendant also submitted that defendant too has remarried.

6. The plaintiff led evidence by way of affidavit and documents. In her affidavit, the plaintiff deposed to all the facts and events as laid down in the plaint. The second witness on behalf of the plaintiff was her father, Shri P.V Rao. In his affidavit, he deposed that he had received a number of telephone calls from the defendant in making demand of dowry and even a suggestion that he transfer his flat in the name of defendant. He further stated that on 09.05.1999, he received a phone call from Dr. Chiranjeevi Rao, father of the defendant that they were sending the plaintiff back to India. Despite his protesting against the same, the father of the defendant stated that he would send the plaintiff back to India for sometime in the hope that in the meantime, he could convince his son to reconsider his demands. He apologized for the deeds of his son and accepted full moral responsibility for the behavior of his son towards the plaintiff and her father. The plaintiff‟s two sisters, Mrs. Anuradha Rao and Mrs. K. Rajyalakshmi and her brother-in-law, Shri K. Pattabhi Ram also deposed as witnesses. An affidavit was also given by one Ms. Anu Bhatia, who was working as a secretary in the TERI. She deposed that the plaintiff was very hard working and an intelligent employee of the Institute and that the Management of the TERI was not happy to part with her, particularly in view of her upcoming promotion. She identified the signature of Lt. Col. R.P Singh, who signed the plaintiff‟s resignation letter.

7. The first question that arises in this case is with respect to the territorial jurisdiction of this court. The Ld. Counsel for the defendant submitted that as there is no provision as to jurisdiction provided under the Act; one must fall back on Section 20 the Civil Procedure Code. According to Section 20, the suit is to be instituted where the defendant resides or where the cause of action arises. The Ld. Counsel for the plaintiff contended that the cause of action first arose when the plaintiff‟s father was approached by the defendant‟s father in New Delhi with the marriage proposal. It further arose when the father of defendant phoned the father of the plaintiff at New Delhi, informing him that he was sending his daughter back to India. He also contended that another cause of action arose when the defendant asked the plaintiff to stop communicating with him, thereby showing an intention of desertion. The Ld. Counsel for defendant vehemently objected to these contentions stating that no cause of action arose in New Delhi as communications between the fathers of the parties could not be said to be a cause of action in a maintenance petition which is between the husband and the wife. With regard to desertion, he contended that desertion can happen only once and that the plaintiff had herself admitted in her plaint that she was left alone and penniless in a foreign land, and thus the cause of action with regard to desertion arose in the U.S. In addition, it was submitted that as the defendant at no point of time resided in Delhi, this Court did not have territorial jurisdiction to try the present suit.

8. The Ld. Counsel has also contended that the factum of desertion took place in the US, and does not have any territorial nexus to the jurisdiction of this Court. I find no merit in this argument because it is well settled that desertion is a continuous act. In the landmark case of “Bipin Chander Jaisinghbhai Shah v. Prabhawati, AIR 1957 SC 176” the Apex Court has observed:-

“Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence. Thus the quality of permanence is one of the essential elements which differentiates (sic) desertion from wilful separation. If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion.' For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid.” Therefore it is trite to say that desertion is a conduct which continues until it is stopped by the deserter.

9. Furthermore, it has also been held in the case of that desertion “Smt. Kusum Lata vs. Sh. Satish Kumar Khanna, (1993) IV AD Delhi 595” that the act of desertion does not merely mean the separation from the matrimonial home, but also includes the animus desirendi i.e. intention of the deserter to bring the cohabitation permanently to an end. In the instant case, the „factum of desertion‟ may have initiated in the US, but has continued to exist even after the plaintiff left the US and returned to Delhi. Furthermore, the desertion continued as long as the defendant resided away from the plaintiff without any reasonable cause to cease cohabitation. Therefore, I find that the cause of action regarding desertion cannot be restricted to its factum alone, which may have taken place in the US; but has continued to exist even as the plaintiff moved to Delhi due to the continuing intention of the defendant to desert her.

10. Further, relying on a judgment passed by a Division Bench of the Bombay High Court in, “Mrs. Sucheta Dilip Ghate And Ms. ... vs. Dilip Shantaram Ghate, AIR 2003 Bom 390”, it was held that, keeping in view the objects and reasons behind the passing of the Act, maintenance petitions should be allowed to be filed where the wife or parents reside. Reference can be made to paragraph 6 of the judgment which reads as under:-

“6……The Hindu Adoption and Maintenance Act has no provision regarding the jurisdiction of the court to which the application for maintenance is to be presented. The provisions of Hindu Adoption and Marriage Act are beneficial and social legislation for the benefit of women and infirm old parents for their maintenance while in distress. It cannot be imagined by any stretch of imagination that such person in distress would have to run from pillar to post for relief under the provision of Hindu Adoption and Maintenance Act, if the husband or son keeps on changing his residence or prefers to reside in far away town from the two of wife or parents. In view of this we are of the considered view that taking recourse to Clause (c) of Section 20 of the code of civil procedure; the proceedings could be instituted at a place of residence of wife who is residing at different place than her husband.”

11. Now having seen that this Court has the jurisdiction to try the present case, I shall proceed to address the second issue, which is that of quantum of maintenance. Section 23 of the Act states that the quantum of maintenance is left to the discretion of the judge with regard to the following factors as described under subsection 2. As per this subsection, consideration must be had to;

a) Position and status of the parties

b) The reasonable wants of the claimant

c) If the claimant is living separately, whether the claimant is justified in doing so.

d) The value of the claimants property and any income derived from such property

The Ld. Counsel for the plaintiff, placing his reliance on the judgment delivered by the Gujarat High Court in the case of “Maganbhai vs. Maniben, AIR 1985 Guj 187”, argued that in cases where the income certificate was not filed by the defendant husband, an adverse inference could be drawn against him. In the said judgment, the High Court, placing reliance on the decision of the Supreme Court in “Gopal Krishnaji Ketkar vs. Mohamed Haji Latif, AIR 1968 SC 1413”, held that an adverse inference ought to be drawn against the defendant who evaded filing the appropriate documents. In such cases, a presumption could be drawn u/S 114 of the Indian Evidence Act that such documents, if produced, would go against the defendant. Further u/S 106 of the Indian Evidence Act, the Court held that proof of income is not supposed to be delivered by the plaintiff as facts regarding the same would be within the special knowledge of the defendant. The High Court held that as regards proof of income, the plaintiff could only estimate the same and could not produce an actual figure. The income of the defendant as per the plaint was USD 5000 per month besides perks and bonuses. Applying the above stated principles of evidence, the burden to prove his income shifts on the defendant as per section 106 of the Indian Evidence Act. As this burden has not been discharged, the Court must necessarily draw an adverse presumption against the defendant that what is stated by the plaintiff is correct.

12. The plaintiff prays for maintenance of USD 1200 or Rs. 51,600/- per month (calculated at the rate of Rs. 43.00 per U.S Dollar and with a provision for periodic increase). The plaintiff in the present case was working as a permanent employee with the TERI and was on the verge of getting a promotion. She allegedly left the job on account of her marriage with the defendant no.1. The defendant on the other hand, was employed in the U.S and was earning a sum of USD 5000 per month excluding perks and bonuses. It was observed by the Hon‟ble Gujarat High Court in the case of “Maganbhai vs. Maniben, (supra)” that, while considering the quantum of maintenance, the Court has to consider two aspects. The first being the status of the parties and the second being the reasonable wants of the claimant. The Court further observed that as regards the “wants”, it is directly proportional to the income and financial status of the husband. If the husband earns comfortably, then the wife also has the right to live according to the position and status of her husband. I am in complete agreement with these observations. In the light of above as well as the factual matrix of this case, it would be just and reasonable to award the plaintiff maintenance of USD 500 per month. However, since the plaintiff has remarried on 03.11.2003, she would be entitled to maintenance only upto this period.

13. The last and final issue is with regard to the claim of damages of the plaintiff. The plaintiff claimed damages to a tune of Rs. 50 Lakhs on the ground that because of the acts of the defendant, the plaintiff has suffered tremendously and that her life has been ruined. It was alleged by the plaintiff that she had to leave her permanent job of secretary with TERI, in light of her impending marriage. A resignation letter has been produced to that effect and a colleague of the plaintiff, Ms. Anu Bhatia, has also submitted evidence by way of an affidavit stating that the plaintiff was employed with TERI and was in fact due for a promotion. Other than these two documents, no other evidence has been produced by the plaintiff in this regard. These pieces of evidence fail to connect the act of resignation to the defendant. The plaintiff herself seems to have chosen to resign from her job instead of opting to keep lien over the job for some time. Thus, it cannot be said with certainty that it is only because of the defendant that the plaintiff resigned from her job. Hence, the defendant could not be made liable for the financial consequences ensuing due to the resignation of the plaintiff. Thus, I have no option, but to dismiss her prayer for damages to the tune of Rs. 50 lakhs for want of sufficient and cogent evidence in this regard.

14. In view of above, the suit is hereby decreed to the extent of personal maintenance claimed u/S 18 of the Act and dismissed regarding claim of damages. The defendant is thus ordered to pays a sum of USD 500 per month or equivalent if INR to the plaintiff from the date of institution of suit i.e. 09.02.2000 till 03.11.2003, within a month from today and thereafter with interest @ 12% p.a till payment or realization. Decree be drawn accordingly.

In C.C.P No. 21/2002

1. The present civil contempt petition has been filed by the plaintiff under Sections 2(b), 11 and 12 of the Contempt of Courts Act, 1971 read with Article 215 of the Constitution of India, against the defendant on the ground that he has not complied with the order dated 27.07.2001 passed in the Court of Hon‟ble Justice A.K Sikri, for paying an interim maintenance of USD 400 per month from 09.02.2000 (the time of institution of the main suit for maintenance). 2. On filing this contempt petition, the defendant was ordered to show cause as to why contempt proceedings should not be initiated against him. On non compliance of this order, the Court initiated contempt proceedings against him and subsequently found him guilty of civil contempt of the order awarding interim maintenance. Before deciding the punishment to be meted out to him, this Court thought it fit, in the interest of justice, to give the defendant one last opportunity to show cause in relation to the punishment, and to be present in Court at the time of deciding the punishment. The defendant, again having not complied with the order of the Court, bailable and then non-bailable warrants were issued against him. The defendant still continued to defy the orders of the court and did not appear. The matter was taken up along with the main suit and is being disposed of vide the present order.

3. As this Court has already found the defendant guilty of civil contempt, the question that remains would be to decide the quantum of punishment to be awarded to the defendant husband. In this regard, the Ld. Counsel for the plaintiff has cited a number of judgments delivered by this Court as well as the Supreme Court. In the case of “Balsara Hygiene vs. Kavita Trehan & Anr, 79 (1999) DLT 153”, this Court held that when an order of the Court has been continuously flouted for a long period of 8 years, then the Court has no option but to resort to proceed under Article 215 of the Constitution of India. 4. In the present case, the order for interim maintenance was passed on 27.07.2001 and the defendant was directed to pay the maintenance from 09.02.2000 i.e. when the suit was filed. Since then, the defendant has not been complying with the repeated orders passed by this Court as regards the interim maintenance. Thus there has been noncompliance of the order for a period of nearly thirteen years. The judgment of the Supreme Court in “Jhareswar Prasad Paul and Another vs. Tarak Nath Ganguly & Ors, (2002) 5 SCC 352” has opined on the purpose of the Contempt of Courts Act as under; "The power to punish for contempt of court is a special power vested under the Constitution in the courts of record and also under the statute. The power is special and needs to be exercised with care and caution. It should be used sparingly by the courts on being satisfied regarding the true effect of contemptuous conduct….The contempt jurisdiction should be confined to the question whether there has been any deliberate disobedience of the order of the court and if the conduct of the party who is alleged to have committed such disobedience is contumacious”

5. There is evident wilful disobedience on the part of the defendant in not complying with the orders of this Court. Though, I would have thought of some serious punishment to the defendant for being in continuous contempt in not complying the order of the interim maintenance for several years, but having regard to the various factors including that both; the plaintiff as well as the defendant have got re- married and now settled in their lives and a decree in the main suit is being passed against the defendant as also that he is settled abroad, I am of the view that the ends of justice will be met by directing him to pay interest @ 18% per annum on the amount of arrears of interim maintenance calculated @ USD 400 per mensem from the date of interim order i.e. 27.07.2001 till date within a month from today. If, at all, defendant still disobeys this order, the petitioner would be entitled to initiate further appropriate proceedings against him. 6. The Civil Contempt Petition stands disposed accordingly.

M.L. MEHTA, J