Divorce-non working wife - withdraws money - joint account
Sandeep
(Querist) 22 September 2012
This query is : Resolved
Dear Experts ,
I shall try and explain my background and query in the most concise manner as far as possible :
1. I had been married to my partner for 16 years.
2. Filed for Divorce in 17th year of marriage.
3. Wife who never worked withdrew a sum of Rs 4 Lakh from our joint account.
4. This was the money i had saved over 10 years and my wife had not contributed towards it.
5. I am paying my wife an interim maintenance of Rs. 17000/- p.m. for the past 6 years ( Yes the case is on for 6 years now)
6. I stopped paying for the past 3 months and asked the judge to tell her to adjust the sum of Rs. 4 Lakh towards maintainence.
7. By Law - Is it possible for me to get my money back or adjusted ?
8. Are there any judgments in my favor for the same ?
9. My wife had never been working and she has accepted that in court. But she says the money is from her own savings and from the money her mother ( MY Mother In Law ) sends her from Australia. But all that is untrue and she hasn't been able to prove it.
10. I'd be grateful if somebody could come forward and help me.
V R SHROFF
(Expert) 22 September 2012
I wonder you kept your Jt. A/c alive for 6 years and kept 4 Lakhs so that she can withdraw it..
Withdrawing from Jt A/c Bank and Payment for Mtn, are two different act, cannot connect or joint it, unless court directed to do so.
File a MA seeking Order to adjust, Try your level best to prove what u say.
Court may consider and part of mtn may be adjusted every month from your 4L.
Now onwards do not keep any balance in Jt. A/.c
better close down all Jt. A/c
ajay sethi
(Expert) 22 September 2012
ask thw wife to file affidavit in court to state wherein she has used the money withdrawn from joint account . if it is her case that she has received remittances from abroad she has to show when the remittances were received etc .
you can request court to adjust money withdrawn by wife from the joint account towards maintenance .
ajay sethi
(Expert) 22 September 2012
Wife cleans the bank accounts, files for divorce & huge maintenance
THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : SECTION 13(1)(I)(A) OF THE HINDU MARRIAGE ACT
CM(M) No.367/2007
RESERVED ON : 02-04-2007
DATE OF DECISION: 17-04-2007
Alok Kumar Jain ....... Petitioner
through: Mr.Sandeep Sethi, Sr. Adv. with
Mr.Anshu Mahajan, Adv.
VERSUS
Purnima Jain ........ Respondent
through: Mr.Harish Malhotra, Sr. Adv. with
Mr.Tanuj Khurana, Adv.
PRADEEP NANDRAJOG, J.
1. Alok Kumar Jain was married to Ms.Purnima Jain at New Delhi. They were blessed with 2 daughters.
2. Alok Kumar Jain was employed as a Senior Manager with Engineers India Ltd. Unfortunately for the couple their daughter, Radhika, suffered from severe hearing loss of both ears. The couple spent considerable money on her treatment. In the year 2000, Alok Kumar Jain, in consultation with his wife, decided that if he took up employment in Abu Dhabi he could enhance his monetary prospects. He tendered his resignation. He received Rs.27 lacs as terminal benefits from Engineers India Ltd. The money was deposited in a joint account operated by the husband and the wife. The husband took up employment in Abu Dhabi. Unfortunately, the couple separated. The 2 daughters are with the mother.
3. The wife filed a petition for divorce under Section 13(1)(i)(a) of the Hindu Marriage Act. She filed an application under Section 24 of the Hindu Marriage Act praying that she be granted interim maintenance @Rs.2 lacs per month. She also prayed that the husband should pay to her Rs.11 lacs for treatment of their daughter Baby Radhika.
4. To sustain the claim she averred that her husband was earning approximately Rs.7 lacs per month in Abu Dhabi. That he was being provided an accommodation free of cost by the employer.
5. In the reply, husband stated that over the last 3 years, the wife had withdrawn approximately Rs.56 lacs from the joint accounts maintained by the couple. That she had exaggerated the income of the husband. That his monthly income was Rs.2.11 lacs. That out of Rs.56 lacs withdrawn by the wife, she had made investments, details whereof was not disclosed to the husband. Not denying his liability to maintain the wife and the 2 daughters, it was stated by Alok Kumar Jain that the wife was having sufficient funds, interest income wherefrom was sufficient to sustain the monthly expenses of the family.
6. By a cryptic order, without calling upon the wife to explain how she had spent Rs.56 lacs which was withdrawn by her from the joint accounts, learned Matrimonial Judge has directed the husband to pay maintenance of Rs.20,000/- per month for the benefit of the 2 minor daughters with effect from the date of the application.
7. In respect of the claim of the wife that Rs.11 lacs be paid for medical treatment of the daughter Baby Radhika, learned Judge has opined that issue would be decided when the wife produces details of the likely expenses supported with the opinion of renowned surgeon.
8. Impugned order dated 13.2.2007 has been challenged by the husband inter alia on the ground that the learned Judge has ignored that the wife had not accounted for Rs.56 lacs withdrawn by her from the joint accounts maintained by the husband and the wife.
9. Since I am remanding the matter for fresh adjudication, lest prejudice is caused to either party, I refrain from discussing the plethora of precedents cited at the Bar by learned counsel for the parties.
10. Law under Section 24 of the Hindu Marriage Act is well crystallized. From the judicial precedents, factors which can be culled out as required to be kept in mind while awarding interim maintenance are as under:-
(i) Status of the parties,
(ii) Reasonable wants of the claimant,
(iii) The income and property of the claimant,
(iv) Number of persons to be maintained by the husband,
(v) Liabilities, if any, of the husband,
(vi) The amount required by the wife to live a similar life style as she enjoyed in the matrimonial home keeping in view food, clothing, shelter, educational and medical needs of the wife and the children, if any, residing with the wife and
(vii) Payment capacity of the husband.
11. Further, where it is noted that the respective spouses have not come out with a truthful version of their income, some guesswork has to be resorted to by the Court while forming an opinion as to what could possibly be the income of the 2 spouses. This guesswork has to be based on the status of the family, the place where they are residing and the past expenses on the children, if any.
12. In the instant case, husband has truthfully disclosed his monthly income in Abu Dhabi i.e. Rs.2.11 lacs per month. While deciding what maintenance has to be paid to the wife who is maintaining 2 daughters, cost of living in Abu Dhabi has to be taken note of.
13. If this was the only fact to be considered, there would have been no problem in sustaining the impugned order. However, there is a problem. The problem is non disclosure of how has the wife spent appropriated Rs.56 lacs over the past 3 years. Admittedly, said amount was available in the joint accounts of the parties. Admittedly, said amount has dissipated.
14. An additional fact to be noted is that the wife and the 2 daughters are living in a flat purchased by the husband, i.e., no rent is being paid by the wife.
15. Further, admittedly, Baby Radhika needs considerable money for her medical treatment. But, on this issue, learned Matrimonial Judge has kept the matter open for adjudication as and when wife provides cogent material in the form of medical opinion supported with evidence as to how much money would be required for the cochlear operation of the daughter.
16. It is not in dispute that 2 accounts were opened in the joint names of the husband and the wife with Corporation Bank, Bhikaji Cama Place and State Bank of India, Vasant Vihar respectively. The second account is a NRE account.
17. From the statement of bank accounts filed by the husband, undisputed position is that between February 2001 to January 2004, a sum of Rs.61,94,011/- was credited in the said 2 accounts. It is also not in dispute that the wife has withdrawn a sum of Rs.56,02,000/- from the 2 accounts between 1.2.2001 to 28.1.2004.
18. From the statement of bank accounts it is further revealed that between 24.3.2003 to 28.1.2004 i.e. in approximately 10 months, the wife has withdrawn Rs.41,78,000/- from the 2 accounts. It would be interesting to note that the wife sought divorce by filing a petition on 29.1.2004.
19. The statement of bank accounts show that between the years 2001 to 2003, the wife has spent Rs.5,25,303/- by making cash withdrawals, paying school fee, electricity and water bills etc. in sum of Rs.5,25,303/-. In this period she has withdrawn or spent Rs.6,12,000/- for purchase of a car, a computer + a hearing aid with FM receiver for Baby Radhika. Further, between March 2003 to March 2007 the wife has withdrawn Rs.9,80,000/-, which approximates to Rs.20,000/- per month for household expenses.
20. In respect of the huge cash withdrawals made by the wife only Rs.18,94,000/- have been accounted for. These are in the shape of 2 fixed deposits totalling Rs.14 lacs + monies deposited in the public provident fund account opened in the name of the children.
21. Thus, an approximate sum of Rs.34,00,000/- remains unexplained.
22. If I look to the statement of accounts, it is obvious that between the year 2001 to 2003, the wife spent Rs.5,25,303/- to sustain the household, pay the school fee and electricity and water bills. During this period, she purchased a car and a sophisticated hearing aid + a computer for the daughter for which 3 items she spent Rs.6,12,000/-. Thereafter, from March 2003 to March 2007 i.e. in 4 years she withdrew Rs.4,80,000/- presumably spent towards household expenses for said period.
23. It is evident that the wife was able to sustain herself and the daughters in sum of Rs.20,000/- per month as household expenses + other miscellaneous expenses excluding capital expenses incurred for purchase of a car, hearing aid and a computer.
24. The learned Judge ought to have called upon the wife to disclose on oath as to where has she spent or invested approximately Rs.34 lacs. The learned Judge ought to have called upon the wife to explain as to why she withdrew Rs.41,78,000/-between 24.3.2003 and 28.1.2004. What was the need to withdraw such an heavy amount?
25. Further investigation was required to be made as to in what manner interest accruing on the 2 fixed deposits totalling Rs.14 lacs was being spent by the wife.
26. It could well be argued that the wife has invested huge sums in undisclosed places wherefrom she is getting considerable income by way of interest or dividends.
27. I need not analyze the evidence on record any further inasmuch as I am relegating the parties before the learned Matrimonial Judge and therefore I do not want either party to be prejudiced at the inquiry, lest any observation made by me, inadvertently concludes the issue one way or the other.
28. The petition accordingly stands disposed of quashing the impugned order dated 13.2.2007.
29. The matter is remanded for fresh adjudication before the learned Matrimonial Judge. I direct that at the remanded proceedings, learned Matrimonial Judge would call upon the wife to file a detailed affidavit disclosing investments made by her as also render a true account of all withdrawals effected by the wife from the year 2001 till date. Further, the wife would be called upon to explain details of the monthly household expenditure as also expenses incurred on the education and medical treatment of the 2 daughters. Further, the wife would be called upon to explain withdrawals made in sum of Rs.41,78,000/- from 24.3.2003 to 28.1.2004. Further, in respect of withdrawals made prior and subsequent thereto, the wife would be called upon to explain that if she could maintain herself and the 2 daughters in approximately Rs.20,000/- per month preceding and succeeding the period 24.3.2003 to 28.1.2004, where has she spent the money withdrawn between 24.3.2003 to 28.1.2004.
30. An analysis of withdrawals made from the 2 accounts from time to time shall be done by the learned Matrimonial Judge and thereafter the application under Section 24 of the Hindu Marriage Act filed by the wife would be re-decided. Needless to state, principles culled out by me in para 10 above would be kept in view by the learned Matrimonial Judge while re-deciding the application.
31. No costs.
Sd/-
(PRADEEP NANDRAJOG)
JUDGE
Sandeep
(Querist) 22 September 2012
Dear Sir's,
Thank you for the quick response.
@ V R Shroff - Sir, The money was in our joint account. The same was withdrawn by her after the first hearing in court. I was foolish enough not to withdraw the money from my bank account.
The judge who initially ordered the interim maintenance said " Even agreeing and believing the petitioner the money is his own and not the wife's, the wife withdrew the money for her own financial security" (Above, I tried quote the judge precisely as I do not have the order copy handy ) .
Now, My lawyer said we must go to High Court. But will this be a waste of my money and time ?
@ Sethi : Sir, I am highly obliged that you attached a judgement. I havent gone through it but I shall when I sit peacefully later in the night. Also, Sir as you might have read above the judge agrees but is still not inclined to adjust the money. What are the grounds on which I can approach the High Court. I ask as I want to educate myself on the topic before talking to my lawyers.
Sandeep
(Querist) 22 September 2012
Also Sirs,
1. I filed for divorce.
2. My wife withdrew the money.
3. Then applied for Interim maintenance apart from filing various cases under Domestic Violence and 498A.
ajay sethi
(Expert) 22 September 2012
rely upon judgement cited by me . she has to expalin what she did with money with drawn from joint account . she wont be able to prove remittances from your mother .if she has with drawn money for her finacial security then maintenace should be adjusted against money with drawn .
Sandeep
(Querist) 22 September 2012
Sir - @ Ajay Sethi.
Alright Sir, I shall get back to you once I am done reading it. But your message itself gave me a slight insight to the judgement.
Anyways for a heads up - She has has made 2 Fixed deposits from the with drawn account of 2 lacs each in her name.
I have the fixed deposit numbers and will probably cite the same in court. Anyways Sir, thank you so much for your help and guidance.
I will get back to you with more information after going through this judgement.
Sandeep
(Querist) 22 September 2012
Dear Sir,
@Ajay Sethi.
I did go through the judgement. Sir, I am not knowledgeable on the topic and fail to understand how " disclosure of the way money was used by my wife" help me, that is if she discloses.?
2. Will it make sense regarding the time and money to contest this in the High Court as due to already prevailing expenses of lawyer and court and expenses of my Daughter and Son I am a man of limited means.
3. Also Sir , is it legal/if not - the consequences , for me to not give her maintenance till court decides on the sum of Rs. 4 Lakh.
4. Also, when my lawyer put in the application in district court he contested for adjusting Rs. 4 Lakh only. Can we ask the court to adjust the Interest of 4 lakh for the past few years as well ?
Thank you
Sandeep
(Querist) 22 September 2012
@ ALL
This Query is still open.
Any suggestions/inputs/judgments will be of great help and really appreciated.
Devajyoti Barman
(Expert) 22 September 2012
In a joint account both the holders are presumed to be equal share holder in the money lying in the account.
Unless you first prove that all the money was yours only, me re unemployment of you is not going to help you in any way.
Guest
(Expert) 23 September 2012
In either/or type of joint account, any one of the joint operators can withdraw the money without any obligation. No law prohibits withdrawal by any one unless the account is got freezed by special instructions by the operators or by order of the court. So, that all depends solely upon the discretion of the judge, if convinced, to get the withdrawn money by wife adjusted towards her maintenance charges.
Sandeep
(Querist) 23 September 2012
Greetings of the day and a pleasant morning,
I understand that the money belongs to both but is don't I have any defence when I say that :
1. She has never worked/no employment record ever . And wife agrees to it.
2. She has been unable to prove that the money was sent by her Mother from Australia.
3. The Matrimonail Judge said and agreed to the fact that " Believeing that the money is petitioners and not of the respondent wife, the wife withdrew the money to secure herself financially"
4. Now, when the money the money has been withdrawn with the sole purpose of securing her financial position, isn't the money adjustable towards interim maintenance , as the one of the main reasons behind the payment of interim maintenance is securing her future financially and giving her the same standard of living.
P.S. As per the judgement attached by a learned expert My wife too is living in my flat and does not have to pay any rent.
Guest
(Expert) 23 September 2012
Dear Sandeep,
Your plea has to convince the judge, not the members of this forum, as according to legal position there was no restriction on any of you to withdraw money out of EOS type of joint account any time for whatsoever purpose.
Sandeep
(Querist) 23 September 2012
Dear Expert @ Sh. PS Dhingra,
I do not intend to convince anybody in this forum. My sole motive is to stress on the fact what I'd been going through and the other precise details, so that more relevant and precise details, help and information can be accumulated.
Guest
(Expert) 23 September 2012
Dear Sandeep,
Whatever be, all that depends on how effectively your advocate is able to present your case before the judge.
ajay sethi
(Expert) 23 September 2012
you cnanot stop paying maintenace to your wife . as on date order of magistrate has not been set aside. you have stated that 4 lakhs has been withdrawn by your wife and put in a separate fixed deposit in her name . you cna draw attention of the court to fact that sum of rs 4 lakhs has now with accumulated interest grown to susbstantial amount .
no harm in appealing against the order of magistrate but if you are not in position to afford litigation fees it is your call whether you want to appeal or not
