V.S. Aggarwal. J.
1. On 11th July, 2001 as agreed at the bar, an order was passed that for petitioner no. 1 interim maintenance may be fixed at Rs. 4000/- per
month. Keeping in view thee said fact interim maintenance for the minor daughter of the plaintiff Rupali Grover was fixed at Rs. 4000/- per month.
2. Learned counsel for the plaintiff had urged that interim maintenance of plaintiff no. 2 should also be fixed .The plaintiff no. 2 is stated to be the
wife of the defendant. He contends that she has no moveable or immovable property nor any source of income whatsoever .She has no money to
take care of her day to day living expenses. Defendant no.1 is alleged to be belonging to an affluent business family which amongst another is
carrying on business in the name and style of Ram Lal Grover & Sons which is the stockiest ACC Dumping unit. They have a retail outlets at Loha
Mandi. The monthly income of defendant no. 1 was stated to be not less than Rs. 2 lakhs per month. Defendant no. 1 is alleged to be leading a
luxurious life and enjoying all the modern amenities. A maintenance at Rs. 20,000/- per month for both the petitioner as such was claimed.
3. Reply has been filed by respondent no. 1. It has been asserted that applicant no. 2 belongs to an affluent and wealth business family having
family business of export of various items and turnover in terms of crores. Applicant no. 2 with whom applicant no .1 is residing has a palatial
house in plot in Qutab Enclave, Gurgaon. They have several properties in South Delhi. Applicant no.2 was further alleged to behaving business
interest in the family business and his father and brothers. It was denied that respondent no. 1 is well off. He is making efforts to rehabilitate himself
and re-start the business. Respondent no. 1 claims that he was suspected to be suffering from cancer. He was required to visit several doctors. His
means in the process had been exhausted .Respondent was earlier a partner in the firm known as M/s Grover Agencies. The said firm was closed
in 1996-97. Respondent claimed that the only has a rental income of Rs. 10,000/- per month from the house and his income tax return also shows
that annual income of the respondent from the sole proprietorship firm is Rs. 16,665/- and after deduction of income tax comes to Rs. 7,304-60.
4. During the course of submission it was pointed that when maintenance of the petitioner no. 1 who is the daughter of the applicant no. 2 and
defendant no. 1was fixed, not interim maintenance of petitioner no. 2was fixed and Therefore, presently maintenance for the wife should be fixed.
5. As already pointed above it was an agreed order and in the said order there is no mention that the claim of petitioner no. 2 is not being pressed.
In that view of the matter it cannot be termed that by virtue of the said order petitioner no. 2 is barred from claiming the interim maintenance.
6. With respect to the mode of fixing the income of defendant no. 1, parties were at dispute because learned counsel for the petitioner no. 2 urged
that the income of the family which according to him was a joint Hindu Family business should also be taken note of while evaluating prima facie
the income of defendant no. 1.
7. In support of his contention he relied upon the decision of this court in the case of Neelam Malhotra Vs. Rajinder Malhotra and Others, Therein
the court had found that business was being carried by the brother of the concerned person for the benefit of the entire family and that prompted
the court that the income of the firm could be taken into account not only to determine the husband''s status but fixing the quantum of interim
maintenance. As notices hereinafter that the said fact has been not so established and Therefore the decision in the case of Neelam Malhotra
(supra) would be distinguishable.
8. Identical was the decision rendered by this court in the case of Renu Jain v. MahavirPrasad Jain AIR 1987 Delhi 43. This court once again
concluded that in deciding the maintenance particularly of daily transactions the properties of the husband and his joint family property should
betaken not of.
9. In that event reliance was placed on the decision of this court in the case of Kanchan B.R.v. Akash alias Yusuf Hussain 1(2001) DMC. This
court held that a spouse is entitled to a life style commensurate with the status of the parties. The surest indicators of the lifestyle is the matrimonial
home which the parties have been living. In that case it was concluded that the husband had not been suffering such a peculiar loss and accordingly
the maintenance had been fixe.
10. In the present case in hand it apparently is an unfortunate case where the son of the parties is residing with respondent no. 1 while daughter is
residing with petitioner no. 1. A copy of the petition filed by petitioner no. 2 u/s 7 and 25 of the Guardian and Wards Act has been placed on the
record. In the said petition the petitioner claimed that respondent no. 1 suffers from various ailments. He was always mentally disturbed and was
undergoing treatment from various hospitals. He even attempted to commit suicide. The petitioner had prayed for the custody of the son asserting
that she can be looked after better by him.
11. A copy of the plaint filed by the petitioner no .2 dated 3rd November, 1997 before the Womens Cell has also been produced. Therein the
petitioner no. 2asserted that respondent no. 1 is unemployed and does not make any effort to find work. These assertions prima facie for purposes
of the present order support of the contentions of respondent no. 1 that he had suffering mentally. He had suffered also in the business dealings. He
was undergoing treatment for a suspected cancer and presently he is trying tore-establish himself. Therefore, in the peculiar facts it cannot be
termed that respondent no. 1 has sufficient means as alleged by the petitioner no. 2that the petitioner should be granted Rs. 20,000/-permonth as
maintenance. The one house which is available with respondent no. 1 has been let out and he is getting rental income. So far as other family
property is concerned it was explained during the course of arguments that the property was of the grandfather of respondent no. 1 and he has
bestowed all the properties to his widow. Respondent no. 1 further is maintaining the son of the parties to the present litigation ,namely petitioner
no. 2 and respondent no .1. Taking note of the fact that respondent no. 1gets about Rs. 10,000/- as rent, he is yet to establish his business once
again and he is also maintaining his son and paying Rs. 4,000/- per month for the daughter, the claim of the petitioner must be stated to be
excessive .Taking stock of the above facts the petitioner no. 2 must be held to maintenance only at Rs. 1500/- per month from the date of the filing
of the application .Order is made accordingly.
12. List the I.P.A. on 22nd March, 2002.