Roma Rajesh Tiwari vs Rajesh Dinanath Tiwari on 12 October, 2017

Dixit
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.10699 OF 2017

Roma Rajesh Tiwari ]
Age 38 years, Occ. Housewife, ]
Temporarily R/at C/of Vedprakash Pandey, ]
19/20, Dena Bank Building, ]
3, Pasta Lane, Above Maratha Stores, ]
Colaba, Mumbai – 400 005. ] …. Petitioner
Versus
Rajesh Dinanath Tiwari ]
Age 38 years, Occ. Service, ]
R/at Neelgiri Lok Everest C.H.S. Ltd., ]
502, J.S.D. Road, Cement Company, ]
Near St. Girgorious High School, ]
Mulund (West), Mumbai 400 080. ]
Also allegedly residing at ]
Kailash Residency, Room No.303, ]
House No.1205, Sector-1, Shirvane, ]
Nerual, Navi Mumbai – 400 706. ] …. Respondent

Mr. Rajesh L. Dharap for the Petitioner.
Mr. S.R. Dubey for the Respondent.

CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.
DATE : 12 TH OCTOBER 2017.

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ORAL JUDGMENT :

1. Rule. Rule is made returnable forthwith. Heard finally, by

consent of learned counsel for the Petitioner and Respondent.

2. This Writ Petition is filed against the order dated 26 th May

2017 passed by Family Court No.4, Mumbai, below Exhibit-20 in

Petition bearing No.A- No.630 of 2014, thereby rejecting the

Petitioner-wife’s prayer for interim maintenance.

3. The facts of this Writ Petition are to the effect that, according

to the Petitioner, her marriage with the Respondent was solemnized

on 27th April 2009. Thereafter, she was residing with the

Respondent and out of the wed-lock, one daughter by name ‘Aarna’ is

born, who is at present studying in the school. Thereafter, on

account of the cruelty meted out to her and being driven out of the

matrimonial house, she has to reside separately with her parents

and she has no source of income to maintain herself and her

daughter. It is her case that, monthly expenses of her daughter

amounts to Rs.20,000/-, which includes education, food, clothing,

extra-curricular activities etc. Respondent is, therefore, bound to

bear the expenses of maintenance of the Petitioner and their

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daughter. He is also having sound financial position, as he is

employed in Allied Digital Service Private Limited, Mhape, Vashi,

since August 2004 and his monthly income is not less than

Rs.45,000/-. Additionally, he has huge investments and his total

income therefrom is Rs.70,000/- per month. Further, he is having

two flats in his name; one is in Mulund (West) and the other at

Wagle Estate, Thane. His brother is also having one property at

Kasarvadavli, Thane (West).

4. As against it, it was the contention of the Petitioner that, she

has no source of income and totally depending on the Respondent to

maintain herself and her daughter and, therefore, she claimed

interim maintenance at the rate of Rs.30,000/- per month for herself

and Rs.20,000/- per month for her daughter.

5. This application came to be resisted by the Respondent-

husband denying all the adverse allegations made in the application

and contending, inter alia, that, the Petitioner was already married

to one Yogesh Pandey and she has not got the said marriage

dissolved till date. She has filed Petition for divorce by mutual

consent with Mr. Yogesh Pande bearing P.A. No.216 of 2014, which

she has voluntarily withdrawn on the pretext that she has taken
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customary divorce on the stamp-paper and it is notarized. However,

that is not a legal divorce and in such situation, she cannot be called

as a legally wedded wife of the Respondent. Therefore, she cannot be

entitled to get any amount of maintenance.

6. Further, it was submitted that, the Petitioner is a working

woman. She was doing job with ‘Uni Desine’ at Andheri, Mumbai and

at present also, she is working with ‘Rediam Diamond Company’ at

Kopar-Khairane as ‘Jewelery Designer’ and getting salary of

Rs.22,000/- per month. Therefore, she is able to maintain herself. As

regards his own income, Respondent contended that, though he is

working with ‘Allied Digital Services Private Limited’ since the year

2004, he is getting salary of Rs.13,844/- per month only. His salary-

slip to that effect of November 2014 was also produced. He has

denied about the additional income from the investments and also

having the properties.

7. As to the maintenance to the daughter, Respondent has

submitted that, he is ready to pay interim maintenance at the rate of

Rs.2,500/- per month for the daughter and even ready to have her

permanent custody also.

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8. On this application, the Family Court, vide its initial order

dated 22nd April 2015, granted interim maintenance at the rate of

Rs.2,500/- per month to the daughter, considering her school

expenses; however, denied interim maintenance to the Petitioner-

wife on the count that, she has obtained Rs.1,00,000/- towards full

and final settlement by way of permanent alimony from her ex-

husband. Moreover, she is a Graduate lady and said to be working.

Her possession in the house of Respondent was also protected and,

hence, it was held that, the issue of interim maintenance of the

Petitioner-wife needs evidence and, therefore, it was kept with the

main Petition for disposal on taking all the evidence on record.

9. Subsequent thereto, vide its impugned order dated 26 th May

2017, the Family Court has again considered the rival submissions

advanced by both the parties and was pleased to hold that, the

marriage of the Petitioner with Yogesh Pandey is yet not dissolved

by the order of the Court. Her Petition for divorce by mutual consent

with Yogesh Pandey is withdrawn and in such situation, though she

has contended that she has obtained customary divorce from her

earlier marriage, this contention needs to be considered and decided

on merits and, therefore, at this stage, she will not be entitled to get

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any amount of interim maintenance, unless and until her status as a

wife of Respondent is decided.

10. As regards the income of the Respondent in respect of

payment of interim maintenance to the child is concerned, it was

observed by the Family Court that, Form No.16 of his ‘Income Tax

Return’ shows that, his gross-salary was Rs.1,79,376/- and having

regard to the said income and the requirement of the child of seven

years, the Family Court awarded the maintenance at the rate of

Rs.5,000/- per month to the child from the date of the order,

considering that, as per the earlier order, the amount of Rs.2,500/-

per month was awarded as interim maintenance to the child.

11. This order of the Family Court is the subject matter of this

Petition. Submission of learned counsel for the Petitioner is that, as

on today, the Petition filed by the Respondent for getting the decree

of nullity of marriage is still pending and, therefore, Petitioner

cannot be deprived from the award of interim maintenance during

pendency of such Petition.

12. To substantiate his submission, learned counsel for the

Petitioner has relied upon the Judgment of our own High Court in
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the case of Sushila Viresh Chhadva Vs. Viresh Nagshi Chhadva,

1996 (1) Mh.L.J. 288, wherein the very same issue was raised for

consideration before this Court, because the husband has filed

Petition in the Family Court under Hindu Marriage Act for decree of

nullity of marriage. During pendency of that Petition, the

Respondent-wife has filed an application seeking interim alimony

and expenses of the litigation, under Section 24 of the Hindu

Marriage Act. The Petitioner-husband opposed the said application

on the ground that the marriage itself was void. The Family Court

has, hence, rejected the application of the wife on the ground that, as

the Petition was for nullity of marriage, interim relief could not be

granted without going into the merits of the case. When the said

order was challenged before this Court, it was held as follows :-

“That the Family Court had proceeded on an erroneous
assumption that the wife was not entitled to interim
alimony because the husband had sued for nullity of
marriage. The right of a wife for maintenance is an
incident of the status or estate of matrimony. Section 24
of the Hindu marriage Act, which provides for
maintenance pendente lite and expenses of proceedings,
clearly applies to all proceedings under the Act. An order
for maintenance pendente lite and costs of the
proceedings can, as the initial words of the section
clearly state, be made in any proceeding under the Act,

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viz. For restitution of conjugal rights, judicial separation,
divorce or nullity of void and voidable marriage. When a
fact of marriage is acknowledged or proved alimony
follows subject of course to the discretion of the Court in
the matter having regard to the means of the parties and
it would be no answer to the claim for maintenance
pendente lite that the marriage was void ipso jure or
was voidable. The Family Court was not right in taking
into consideration the allegation of fraud and deception
made in the petition for the purpose of deciding the
prayer of interim alimony. The fact that there is a strong
possibility of the marriage being declared as a nullity is
no ground for declining even the basic right to claim
interim alimony and expenses of the litigation. The Trial
Court cannot postpone its decision on the application for
interim maintenance and costs till the disposal of the
main issue in the substantive matter. The very purpose
of an order under Section 24 would be frustrated if the
matter of granting interim maintenance and of providing
the requisite expenses for the conduct of the proceedings
itself is deferred till the final stage of the proceeding. The
direction for interim alimony and expenses of litigation
under Section 24 is one of urgency and it must be
decided as soon as it is raised and then only the other
matters in controversy can be gone into. The object of
section 24 is to provide a monthly income and expenses
of the litigation to an indigent spouse to enable to
prosecute or defend the proceeding under the Act and
the law sees that nobody is disabled from prosecuting or
defending the matrimonial case by starvation or lack of
funds.”

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13. As against it, learned counsel for the Respondent has relied

upon the Judgment of the Apex Court in the case of Yamunabai

Anantrao Adhav Vs. Anantrao Shivram Adhav Anr., AIR 1988 SC

644, to submit that, only a legally wedded wife can be entitled to get

maintenance and not the one whose marriage is not legal and valid.

14. Further, he has also relied upon the Judgment of the Andhra

Pradesh High Court in the case of Nagireddy Sai Kumari Vs.

Nagireddi Vara Nageswara Rao and Anr., 2008 (1) ALD (Cri.) 747

(AP), wherein the application for maintenance was filed under

Section 125 of Cr.P.C. and as it was pointed out that wife has yet not

obtained divorce from her first husband, it was held that, in view of

Section 5(1) of Hindu Marriage Act, her marriage becomes null and

void and, therefore, she cannot be considered as legally wedded wife;

hence, not entitled to get maintenance under Section 125 of Cr.P.C.

15. Learned counsel for the Petitioner has then relied upon the

Judgment of Punjab and Haryana High Court in the case of

Karampal Singh Vs. Amarjit Kaur, 2008 SCC OnLine PH 1036 ,

wherein also, the Petition for seeking declaration of marriage to be

void and, in alternate, decree for divorce, was filed by the husband
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and in that Petition, the Respondent-wife has moved an application

under Section 24 of the Hindu Marriage Act. The contention raised

by the husband was that she was already married before getting

married to the Petitioner and, therefore, marriage was null and void.

Therefore, she could not be treated to be wife for seeking

maintenance under Section 24 of the Hindu Marriage Act. To

substantiate this contention, the reliance was placed by the husband

on the Judgment of the Supreme Court in the case of Yamunabai

Anantrao Adhav (Supra) referred above. However, this contention

was rejected by the Punjab and Haryana High Court by holding that,

in the Judgment of Yamunabai Anantrao Adhav (Supra), while

considering the provisions of Section 125 of Cr.P.C., the Apex Court

has come to the conclusion that the grant of maintenance cannot be

altogether excluded from consideration even if the marriage is not

proved. It was held by the Punjab and Haryana High Court that, as

the husband has moved an application under Sections 11 and 12,

r/w. Section 13, of the Hindu Marriage Act, seeking divorce from the

Respondent-wife, whether the marriage is illegal or void is yet to be

decided. The provisions of Section 24 of the Hindu Marriage Act

envisages maintenance of pendente lite during pendency of the

Petition under the Act and, therefore, no distinction can be drawn

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whether the marriage is legal or illegal, as it is yet to be decided after

the parties are allowed to lead evidence.

16. If one has regard to the decision of this Court in the case of

Sushila Viresh Chhadva (Supra) and the decision of the Punjab and

Haryana High Court in the case of Karampal Singh (Supra), the legal

principle, which can be deduced, is that, during pendency of the

Petition for declaration of nullity of marriage, the interim

maintenance under Section 24 of the Hindu Marriage Act cannot be

denied to the wife, as the issue of legality or illegality of the marriage

is yet to be decided. That issue will be decided only after the parties

lead their evidence and at that stage only, one can consider whether

the previous marriage of the Petitioner with one Yogesh Pandey was

in subsistence in law, when she married with the Respondent.

During pendency of that issue, this Court cannot deny the Petitioner

the interim maintenance, having regard to the legal position

enumerated above.

17. The next contention advanced by learned counsel for the

Respondent to deny the Petitioner’s claim for interim maintenance

is that, she was working earlier also and she is an able-bodied

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person, capable of earning the income. It is stated that, in reply to

the application for interim maintenance, the Respondent has

categorically stated that the Petitioner is working in the ‘Rediam

Diamond Company’ as ‘Jewelery Designer’ at Kopar-Khairane and

getting salary of Rs.22,000/- per month. It is urged that, this fact

stated in the say to the application for interim maintenance, is not at

all denied by the Petitioner by filing any rejoinder and, therefore,

when she is herself earning and that too as a ‘skilled worker’, as she

was working as ‘Jewellery Designer’, she cannot be entitled to get

any interim maintenance.

18. To substantiate this submission, the learned counsel for the

Respondent has relied upon the Judgment of Madhya Pradesh High

Court in the case of Mamta Jaiswal Vs. Rajesh Jaiswal, 2000 DGLS

(M.P.) 181, wherein the question raised for consideration before the

Madhya Pradesh High Court was whether, a wife was educated and

in the year 1994, was earning salary of Rs.4,000/- per month, can be

entitled to the expenses of the attendant, who accompany her to the

Court on every date when she is required to attend Court. In that

backdrop, it was held that, as she is an educated lady, she cannot be

entitled to such expenses to cover the travelling charges of some

attendant, as she can attend the Court alone. No doubt, in the said
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Judgment, some observations are made relating to the entitlement

of an educated lady to get the interim maintenance, but the

Judgment shows that the interim maintenance awarded by the Trial

Court in that case was not at all disturbed, but husband was directed

to deposit the said amount of interim maintenance in the Court.

Therefore, the real issue for consideration before the High Court in

the said decision was, ‘whether the husband should be made liable to

pay travelling charges of the attendant, in order to enable the

educated wife to come to the Court?’ The observations made

therein, hence, are required to be understood in the light of the

question raised before it; otherwise, the High Court would not have

confirmed the order of interim maintenance passed in the said

proceedings by the Trial Court.

19. As against it, there is recent Judgment of the Supreme Court

in the case of Manish Jain Vs. Akanksha Jain, CDJ 2017 SC 352,

wherein the Supreme Court has held that, it is not necessarily the

earing capacity of the wife, which is required to be taken into

consideration, but whether she has any permanent source of

income. Only when it is shown that she is having some continuous

source of income, she can be deprived of her right to get interim

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maintenance. For the time being, if she is constrained to work

intermittently and to maintain herself and child and, therefore,

getting some income, that will not be sufficient to dis-entitle her

from getting the amount of interim maintenance.

20. In the instant case, the Petitioner herein has admitted that

earlier she was working and she was compelled to work even after

the birth of her daughter, though she did not want to do so. These

are the averments in her reply to the Petition. According to her,

since the time she has to reside separately from the Respondent-

husband, she is not able to do the work and she is not working, as

she has to take care of her daughter also.

21. Though Respondent contends that the Petitioner is still doing

the work with ‘Rediam Diamond Company’ at Kopar-Khairane, no

documentary evidence is produced on record to that effect; either

her salary certificate or even the certificate from ‘Rediam Diamond

Company’ or her ‘Income Tax Return’ to prove that, even at present,

she is working and having some continuous source of income. When,

in her application, she has categorically stated that she is not

working at present, merely because she has not filed the rejoinder,

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in the absence of any documentary evidence produced on record by

the husband, it cannot be assumed or accepted as gospel truth that

she is still working and hence dis-entitled to get the amount of

maintenance. It is pertinent to note that, in paragraph No.21 of her

application, she has stated that, she is now jobless and has no source

of her own income. Therefore, on the face of these averments, it was

necessary to have some evidence on record to that effect to deny her

claim for interim maintenance.

22. In this respect, it is worthwhile to note that the Family Court

has not at all adverted to this aspect, ‘whether she is able to

maintain herself or not’. The entire order of the Family Court is

conspicuously silent as to whether it is proved that the Petitioner is

having her own source of income, which can dis-entitle her from

getting the amount of interim maintenance. Therefore, it follows

that, when there is nothing on record to show that the Petitioner has

her own source of income and when she has stated that she is now

jobless and having no source of income, it has to be held that, she

becomes entitled to get interim amount of maintenance; especially,

having regard to the fact that she is having now liability to look after

her small school going daughter of seven years and, therefore, one

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can safely say that, without some documentary evidence produced

on record proving her job with ‘Rediam Diamond Company’ or any

other Company, it cannot be presumed that she is still working.

23. As regards the income of the Respondent, he has produced on

record Form No.16 of the Income Tax Return of the Assessment

Year 2009-10. The perusal of Form No.16, no doubt, it shows that

his gross-salary was Rs.1,79,376/-, however, the Family Court has

held that, his total income was Rs.1,67,303/-. If his gross-salary was

Rs.1,79,376/-, then, how the total income can be lesser to that to the

tune of Rs.1,67,303/-? In this respect, learned counsel for the

Petitioner has produced on record the “26-AS” details of the Income

Tax Returns filed by the Respondent, which show that, for the year

2008-09, his total income was Rs.4,59,189/-.

24. It is submitted by learned counsel for the Respondent that,

from the documents produced by the Petitioner herself, it can be

seen that the income of the Respondent, as shown in “26-AS” details

for the subsequent year 2010-11 is only Rs.1,40,624/-. It has to be

noted that, the Court cannot close its eyes to the reality, as it is often

noticed these days that the moment the litigation starts, every

attempt is made by the husbands not to disclose their real income.
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Thus, there is much substance in the contention raised by the

Petitioner that Respondent is not disclosing his real income and

every attempt is made to conceal the same, so as to avoid the

liability of payment of maintenance. Considering the fact that the

Respondent is working since the year 2004 in ‘Allied Digital

Services Private Limited’, it has to be held that, he must be earning a

substantial sum as salary and not Rs.13,000/- and odd, as stated by

him.

25. Respondent is also having his own home for his residence. The

liability of daughter, he has to take up. As regards the interim

maintenance of Rs.5,000/- per month, the Respondent, being the

father of the child, has to bear the same and, therefore, the interim

maintenance awarded to the child at the rate of Rs.5,000/- per

month, cannot be called, in any way, as exorbitant or unreasonable

and as regards the Petitioner-wife, the Respondent is also liable to

pay maintenance to her during pendency of this Petition.

26. As to the contention that Petitioner has received the amount of

Rs.1,00,000/- from her previous husband Yogesh Pandey towards

full and final settlement of right of maintenance and alimony, it has

to be held that, the said amount or her entitlement against her first
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husband cannot be confused or mixed up with her entitlement

against the present husband – the Respondent. It must be noted

that, the marriage of the Petitioner and Respondent had taken place

in the year 2009 and for all these years upto 2014, they have

resided together. They are also having one daughter born out of the

wed-lock and, therefore, Respondent just cannot mix up his liability

of providing interim maintenance to the Petitioner with whatever

the lump-sum amount she might have received from her first

husband. The impugned order passed by the Family Court shows

that, the Family Court has not considered this aspect also and,

simplicitor, on the count that issue of marriage is yet to be decided,

rejected her application for interim maintenance; whereas the law

and legal position discussed above expects that till such issue is

decided, her right to interim maintenance cannot be denied.

27. Therefore, the impugned order passed by the Family Court

needs interference as regards the rejection of the claim of the

Petitioner-wife for interim maintenance. Considering the income of

the Respondent and the life-style of both of them, having also regard

to the prices of essential commodities etc., it would be just and

reasonable to award the amount of Rs.5,000/- per month to the

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Petitioner towards her interim maintenance from the date of the

application. Hence, the order.

” O R D E R ”

(i) The Writ Petition is allowed. The impugned

order passed by the Family Court rejecting

Petitioner’s claim for interim maintenance is

set aside. Respondent is directed to pay the

amount of Rs.5,000/- per month to the

Petitioner-wife towards her interim

maintenance from the date of the application.

(ii) As regards the daughter’s maintenance

amount of Rs.5,000/- per month, as awarded

by the Family Court to the daughter also, it has

to be from the date of the application and not

from the date of the order; especially when the

ad-hoc amount awarded towards her

maintenance was only Rs.2,500/- per month.

Therefore, it is clarified and it is held that the

Petitioner’s daughter is entitled to get the
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maintenance at the rate of Rs.5,000/- per

month from the date of the application filed

before the Family Court.

28. Writ Petition is disposed off in the above terms.

29. Rule is made absolute in the above terms.

[DR. SHALINI PHANSALKAR-JOSHI, J.]

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