Reduced Intrim Maintenance

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5660 OF 2010
(Arising out of SLP (C) No. 6736 of 2007)

Neeta Rakesh Jain …. Appellant
Vs.
Rakesh Jeetmal Jain ….Respondent

JUDGMENT

R.M.LODHA,J.

Leave granted.

2. The order dated September 21, 2006 passed by the High Court of Judicature at Bombay (Appellate Side), which fixes the interim maintenance at the rate of Rs. 12000/- per month pending appeal, is under challenge at the instance of the wife – appellant in this appeal by special leave.

3. The parties were married on May 8, 1995. The respondent-husband petitioned for divorce under Section 13 (1) (ia) and (ib) of the Hindu Marriage Act, 1955 (for short, `the Act’) on the ground of cruelty and desertion against the wife. The Principal Judge, Family Court No. 5, Pune, passed an ex-parte decree on April 7, 2005 dissolving the marriage between the parties on the ground of cruelty. The wife has preferred an appeal before the Bombay High Court challenging the ex-parte decree. The appeal has been admitted. On July 18, 2005 an ad-interim order was granted staying the operation of the ex-parte decree. The husband was also restrained from re-marrying until further orders. The ad-interim stay order is operative although the husband has informed the High Court that on July 22, 2005 he had re-married. The factum of re-marriage has been disputed by the wife before the High Court.

4. The wife made an application (Civil Application No. 107 of

2006) for direction to the husband to pay to her interim maintenance

of Rs. 50,000/- per month. In that application it was stated that

husband’s income is Rs. 2,00,000/- per month approximately. It was

stated that the husband is a highly qualified person; he is Chartered

Accountant (CA) and has also passed Cost and Works Accounts of
India (ICWA). He passed Chartered Institute of Management

Accountants (CIMA), U.K., examination in May, 1999 and also

completed course of Computer Information Technology. According to

wife, at the time of marriage the husband was working with M/s.

Kalpataru Constructions at Mumbai drawing a salary of Rs. 40,000/-

per month; in 1996 he changed his job and was appointed as Finance

Manager with M/s. Kimberly Clark, Pune (a multi-national company)

at double the salary and in May, 1998 he joined a highly reputed

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software company, namely, M/s. Tata Technology on substantially

increased salary. In 1999, the husband was sent to Sri Lanka by the

company as a Senior SAP Consultant where he was entitled to a

chauffeur driven Toyota Van and a large bungalow to live. He

returned to Pune in August 1999. At that time his monthly income

was about Rs. 1,50,000/-. The wife averred that somewhere in the

month of January, 2000 the husband started his own company in the

name and style of M/s. Paysquare Consultancy Limited at Pune and

engaged several computer and IT engineers, chartered accountants

and MBAs as employees. As regards her own income, the wife

stated that she did not have any independent source of income and

was pursuing her studies of Ph.D. at the mercy of her elder sister
who has been supporting her since 2001.

5. The husband responded to the application by filing his

affidavit. Substantial part of the reply affidavit deals with the

proceedings before the Family Court. As regards his income, he

stated that he joined the service with M/s. Kalpataru Constructions as

an entry level job with a total income of Rs. 7,000/- per month.

According to him, his salary in M/s. Kimberly Clark was Rs. 15,000/-

per month while his salary in M/s. Tata Technology was Rs. 20,000/-

per month. He stated that having worked for six years, he decided to

start on his own and put all his savings in the company – M/s.

Paysquare Consultancy Limited. He also stated that he was not the

sole owner or proprietor of the company and that from August 2005

he has started drawing the salary of Rs. 30,000/- per month from the

company.

6. The Division Bench in the impugned judgment observed

that since an application for interim maintenance was being

considered, it was not inclined to deal with the submissions advanced

by the counsel for the parties on the earning capacity of the husband

in extenso and accepting the husband’s statement that he was
getting Rs. 30,000/- per month, fixed an amount of Rs. 12,000/- per

month as interim maintenance to the wife.

7. Section 24 of the Act makes a provision for maintenance

pendent lite and expenses of proceedings. It reads thus:-

“S.24.- Maintenance pendent lite and expenses
of proceedings.- Where in any proceeding under
this Act it appears to the court that either the wife
or the husband, as the case may be, has no
independent income sufficient for her or his
support and the necessary expenses of the
proceeding, it may, on the application of the wife
or the husband, order the respondent to pay to
the petitioner the expenses of the proceeding,
and monthly, during the proceeding such sum as,
having regard to the petitioner’s own income and
the income of the respondent, it may seem to the
court to be reasonable.

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Provided that the application for the
payment of the expenses of the proceeding and
such monthly sum during the proceeding, shall,
as far as possible, be disposed of within sixty
days from the date of service of notice on the wife
or the husband, as the case may be.”

8. Section 24 thus provides that in any proceeding under the

Act, the spouse who has no independent income sufficient for her or

his support may apply to the court to direct the respondent to pay the

monthly maintenance as the court may think reasonable, regard

being had to the petitioner’s own income and the income of the

respondent. The very language in which Section is couched
indicates that wide discretion has been conferred on the court in the

matter of an order for interim maintenance. Although the discretion

conferred on the court is wide, the Section provides guideline

inasmuch as while fixing the interim maintenance the court has to

give due regard to the income of the respondent and the petitioner’s

own income. In other words, in the matter of making an order for

interim maintenance, the discretion of the court must be guided by

the criterion provided in the Section, namely, the means of the parties

and also after taking into account incidental and other relevant factors

like social status; the background from which both the parties come

from and the economical dependence of the petitioner. Since an

order for interim maintenance by its very nature is temporary, a

detailed and elaborate exercise by the court may not be necessary,

but, at the same time, the court has got to take all the relevant factors

into account and arrive at a proper amount having regard to the

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factors which are mentioned in the statute.

9. In a case such as the present one, the stand of the husband

that he is drawing salary of Rs. 30,000/- per month from the

company since August 2005 is inherently improbable. The

husband is highly qualified; he is CA, ICWA, CIMA and has also
completed course of Computer Information Technology. He

has worked with renowned and big companies like M/s.

Kimberly Clark and M/s. Tata Technology as Finance Manager

and Senior SAP Consultant respectively before he started on

his own in January, 2000. He did not leave the job due to any

compulsion but because he wanted to grow big. He has

admitted that having worked for six years, he decided to do his

own business and started the company, namely, M/s.

Paysquare Consultancy Limited in which he has sought

financial/administrative help of his brother and one Ms. Nilima

Apte. How can it be believed that a person who has started his

own business leaving the job in 2000 would start drawing the

salary of Rs. 30,000/- per month from the company from

August, 2005? The High Court has not taken into consideration

these vital aspects and accepted the statement of the husband

that he was drawing salary of Rs. 30,000/- per month as a

gospel truth. Insofar as wife is concerned, it appears that she

does not have any settled job; she has worked at few places for

few months. We think this is eminently a case in which the

High Court must reconsider the wife’s application for interim
maintenance.

10. Accordingly, this appeal is partly allowed, the impugned

order dated September 21, 2006 is set aside and Civil Application No.

107 of 2006 made by the wife for interim maintenance is restored to

the file of the High Court for fresh consideration. We expect the High

Court to dispose of the application for interim maintenance

expeditiously and before it proceeds with the hearing of the main

appeal, being Family Court Appeal No. 10 of 2006. The cost of the

appeal is quantified at Rs. 20,000/- (Rupees twenty thousand) which

the respondent shall pay to the appellant within one month from

today.

………………………J.
[AFTAB ALAM]

……………………….J.
[R.M. LODHA]

New Delhi,
July 20, 2010.

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