Mrs. Shama Rahul Moholkar vs Mr. Rahul Deorao Moholkar on 10 November, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.4331 OF 2017

Mrs. Shama Rahul Moholkar ]
@ Shama Vasant Padale ]
age: 40 years, Occn. Housemaker ] Petitioner
address: Revti Hsg Society ]
Flat No.6 Bibvewadi ]
Pune 411 037 ]

versus

Rahul Deorao Moholkar ]
age: 43 yars, Occupation Buisness ]
residing at: Nirmal Niwas, A Block 397/794 ] Respondent
Subhash Tekdi, Ambedkar Chowk ]
Kansai Road, Ulhasnagar, Thane ]
Maharashtra ]

WITH
WRIT PETITION NO.4676 OF 2017

Rahul Deorao Moholkar ]
age: 44 yars, Occupation Buisness ]
residing at: Nirmal Niwas, A Block 397/794 ] Petitioner
Subhash Tekdi, Ambedkar Chowk ]
Kansai Road, Ulhasnagar, Thane ]
Maharashtra – 421 004 ]

versus

Mrs. Shama Rahul Moholkar ]
knee name Shama Vasant Padale ]
age: 40 years, Occn. Housemaker ] Respondent.
address: Revti Hsg Society ]
Flat No.6 Bibvewadi ]
Pune 411 037 ]

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Mr. Abhijit Sarwate, for the Petitioner in W.P.
No.4331 of 2017 and for respondent in W.P.
No.4676 of 2017

Mr. B. M. Patwardhan i/by Abhijit Kandarkar,
for the respondent in W.P. No.4331 of 2017 and
for Petitioner in W.P. No.4676 of 2017.

CORAM : DR. SHALINI PHANSALKAR-JOSHI, J

CLOSED FOR ORDER ON : 11 th OCTOBER, 2017.

JUDGMENT PRONOUNCED ON : 10 th NOVEMBER, 2017

JUDGMENT

1] Rule. Rule made returnable forthwith with the

consent of learned counsel for both the parties, heard finally at

the stage of admission itself.

2] Both these writ petitions are arising out of one and the

same order passed by the Principal Judge, Family Court, Pune in

P. A. No.891 of 2014. Hence they are being decided by this

common order.

3] For the convenience, parties are referred to by their

original nomenclature, wife as “petitioner” and husband as

“respondent”.

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4] By the said order, the Principal Judge of Family Court,

Pune, has rejected the claim of petitioner wife for interim

maintenance, residential accommodation, litigation costs and

reimbursement of Medical Expenses. Hence she has preferred

Writ Petition No.4331 of 2017, challenging the impugned order;

whereas the Writ Petition No.4676 of 2017, is preferred by the

husband, being aggrieved by the order, directing him to pay

interim maintenance at the rate of Rs.25,000/- per month to

petitioner for maintenance of daughter Siddhi, from the date of

application till decision of the petition.

5] Brief facts of these Writ Petitions are to the effect that,

the marriage of petitioner and respondent has taken place on

21.03.2011. However, on account of matrimonial dispute between

the parties, both of them started residing separately since

24.4.2013. Thereafter the petitioner has filed a petition for

divorce against respondent on the ground of cruelty under the

provisions of Special Marriage Act, claiming permanent alimony

and other reliefs.

6] During the pendency of the said petition, she has filed

an application at Exh.5, under Sections 36 and 38 of the Special

Marriage Act, 1954, for interim maintenance for herself and for

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her daughter. In support of her application, she relied upon

various documentary evidence proving sound financial position of

the respondent and her inability to maintain herself and

daughter, having no source of income and being dependent upon

the financial support provided by her father.

7] As against it, respondent made every effort to show

that he is not having sufficient means to pay maintenance;

whereas the petitioner is very well placed, being the Director of a

Company and hence an application for interim maintenance

cannot be entertained. In support of his submissions, he relied

upon various documents proving the fact that the petitioner is a

Director of ERP Corporation Private Ltd., and she is maintaining

the car and lavish life style. It was also shown that her profile on

various websites reveals that her qualification is MMS in HR,

DCE, DBM, DID, however, she has tried to suppress her real

income and also the fact that she was the Director of ERP

Corporation.

8] Hence having regard to the fact that the petitioner

wife is a highly qualified person and was working as Director of

the company, the Family Court rejected her application for

maintenance; whereas having regard to the financial position of

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respondent, the Family Court held that he is also liable to

contribute to the maintenance of the child Siddhi and accordingly

awarded interim maintenance to the child at the rate of

Rs.25,000/- per month to the child Siddhi.

9] While challenging the impugned order of the Family

Court, the submission of learned counsel Shri. Sarwate, for

petitioner is that the Family Court has not at all taken into

consideration the fact that the petitioner is having responsibility

to maintain and look after the child of 3 to 4 years and therefore,

though she may be having the potential of earning income, unless

it is proved that she is actually earning the income, she cannot be

deprived from getting maintenance. By placing reliance on the

judgment of Apex Court in Shailja and anr -vs- Khobbanna,

2017 Supreme Court (SC) 75, it is urged that, “whether the

wife is capable of earning or whether she is actually earning are

two different concepts. Merely because wife is capable of earning

is not sufficient reason to deny her maintenance.

10] Learned counsel appearing for the petitioner has also

placed reliance on the judgment of Supreme Court in Mangatmal

(dead) and anr -vs- Punni Devi (dead) and ors, I (1996) DMC

1 (SC), to submit that the maintenance necessarily must

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encompass a provision for residence. The provision of residence

may be either by giving any sum in money or property in lieu

thereof. Here in the case, according to him, the Family Court has

not at all awarded any amount towards residence of the petitioner

though it was specifically brought to the notice of the Family

Court that at present the petitioner is constrained to reside in the

house of her parents, having no other place or roof on her head.

11] Learned counsel for petitioner Shri. Sarvate has then

relied upon the judgment of Hon’ble Supreme Court in Rajesh

Burmann -vs- Mitu l Chatterjee (Barman), AIR 2009 SC 651

to submit that the expressions “maintenance” and “support” used

in Section 36 and 37 of the Special Marriage Act 1954 also

include within their sweep medical expenses and hence in this

case, he has submitted that the Family Court should have

awarded reimbursement of medical and other expenses to the

petitioner to the tune of Rs.1,61,710/-. The Family Court has

avoided to reimburse the said amount stating that it can be

decided at the time of final hearing. Thus, according to learned

counsel for the petitioner, the impugned order passed by the

Family Court to the extent of depriving the petitioner from her

rightful claim for interim maintenance and other expenses needs

to be quashed and set aside.

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12] Per contra, learned counsel for the respondent has

supported the impugned order to the extent of rejecting claim of

wife for interim maintenance and other expenses. However, as

regards, the order of interim maintenance at the rate of

Rs.25,000/- per month towards maintenance of daughter Siddhi,

it is challenged by submitting that, as compared to the husband,

the petitioner is earning far more income. Her life style and her

financial condition is also much better than that of the husband.

Moreover, to enroll the daughter in a costly school like, “Kangaroo

Kids” was her decision and hence respondent husband should not

be saddled with these expenses. Learned counsel for respondent

has, then placed reliance on the income tax returns of the

respondent to show that his income is hardly 20 to 30,000/- per

month and therefore, this amount of Rs.25,000/- which is

awarded by the Family Court towards interim maintenance of

the daughter being excessive, according to him, needs to be set

aside or reduced.

13] This is a peculiar case in which both the husband and

wife are highly qualified, well off and having their own

independent sources of income. Respondent has done his

Bachelor in Engineering from V.J.T.I, Matunga, Mumbai and

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Masters in Management Studies from NMIS, Mumbai. He is also

Director of Xlrite Consulting Private Ltd and having his office at

Bhagatsing Road, Mumbai. He owns Tata Indigo Car. Just before

the proceeding in the Family Court were filed, he has sold out 2

BHK flat at Mulud (W) and was in the process of purchase of flat

at Lokhandwala Complex. He stays in a bungalow, belonging to

his father at NIBM Road, Pune . He has various bank accounts,

numerous credit cards. His profile seen on screen shots produced

on record of the Family Court indicates that his name is the

owner of M/s Canary Recruitment and Training Consultancy.

Respondent has not disputed the fact that he is running this

Xlrite Consultancy Pvt. Ltd.

14] However, respondent has produced on record the

income tax returns of the last three years showing his income to

be around Rs.1,80,000/- per annum. As rightly pointed out by

learned counsel for the petitioner, all these three returns are filed

on the same date after the divorce petition was instituted in the

Court. Hence much reliance cannot be placed on these income tax

returns. Otherwise also, law is well settled that income tax

return do not reflect true income of the parties and the Court has

to assess the said income on the basis of documentary evidence.

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15] Here in the case, one can take into consideration the

profile of the respondent husband filed on Jeevan Sathi.com

stating his annual income around Rs.25 lacs and above and

further states that he was having his own income from HR

Recruitment and Consultancy Training Software Services for

clients across India.

16] It cannot be accepted that immediately after filing of

the divorce petition his income is reduced. Conversely one can

safely conclude that this attempt of showing reduced or no

income, after filing of matrimonial proceeding appears to be a

routine phenomena of which notice is taken by the Hon’ble

Supreme Court in Manish Jain -vs- Akanksha Jain, CDJ 2017

SC 352, by observing in paragraph No. 39 as follows :-

“It has now become a matter of routine that as
and when an application for maintenance is
filed, the non applicant becomes poor
displaying that he is not residing with the
family members if they have a good business
and movable and immovable properties in
order to avoid payment of maintenance. Courts
cannot under these circumstances close their
eyes when tricks are being played in a clever
manner”

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17] Thus, the fact remains that respondent herein is well

qualified and having regard to life style of both the parties, it can

hardly be accepted that he is unable to contribute an amount of

Rs.25,000/- per month towards interim maintenance of his

daughter Siddhi.

18] In addition to that, as rightly held by the Family Court,

respondent has to pay educational expenses of daughter Siddhi.

Therefore, as regards the writ petition of respondent, this Court

does not find any merit therein to entertain the same and hence

the same deserves to be dismissed.

19] As regards the writ petition of petitioner wife, as

stated above she is also a very well qualified person. Her

qualifications are MMS, HR, DBM, DID. She is convent educated.

She had worked with the company for over 7 years. At present

also in her maiden name, “Shama Vasant Padale”, she is Director

of ERP Corporation Pvt. Ltd. Her name is accordingly registered

with Ministry of Corporate Affairs. The print out thereof is also

produced on record. Copy of her consent is also produced on

record.

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20] When these documents were produced in the Court by

respondent, she has filed an affidavit before the Family Court

stating that she is only a nominal or formal Director and on

account busy schedule of the child she is not in active

participation in the work. However, the fact remains that she has

not produced on record her income tax returns for the last three

years to prove that she is not having any income therefrom.

However, the respondent has produced on record documents to

show that earlier petitioner was having 1/3 share in the said

company as a Director and now one of the Directors having been

resigned, she is practically having 50% share. Even if it is

accepted that the offices of the said company are at Bangalore

and at Mumbai and presently she is placed in Pune, being a

Director, it is not necessary that she should participate actively

in the day-to-day affairs of the company. She can exercise

supervisory control over the affairs of the company even from

Pune and get her share in the dividend and profits of the

company. Therefore, her case that she is having no source of

income at present and her father is maintaining her also cannot

be accepted.

21] Assuming that there is some difference in the earning

and income of the petitioner and respondent, provisions of

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interim maintenance are not made for equalising their income but

to ensure that either spouse does not suffer because of paucity of

the income in the course of the proceeding. Where both the

husband and wife are earning and having good income, merely

because there is some difference in the respective income earned

by them, an order of maintenance cannot be justified, especially, if

one has regard to the provision of section 36 of the Special

Marriage Act, 1954 which provides that only when it appears to

the Court that wife has no independent income sufficient for her

support and necessary expenses of the proceedings, the Court

can order the husband to pay her expenses of the proceeding and

also interim maintenance. Here in the case the petitioner wife is

having independent source of income. In such situation she

cannot be entitled for interim maintenance. Since both the

petitioner and respondent are on equal footing and earn more or

less some income, the Family Court, has rightly rejected the

wife’s claim for interim maintenance.

22] As regards the provision for residence, the Family

Court has observed that the petitioner has a provision of

residence. Moreover, she is also capable of taking residence on

rent being the Director of the Company. In respect of medical and

other expenses, the claim of the petitioner is to the tune of

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Rs.1,61,710/-. The Family Court has rightly held that the said

claim can be decided at the time of final hearing.

23] To sum up, therefore, I do not find that any ground is

made out either by the petitioner wife or by respondent husband

to interfere in the impugned order passed by the Family Court, as

the order is balanced one and is passed by the Family Court after

taking into consideration all the relevant material aspects of the

case.

24] Both these Writ Petitions, therefore being devoid of

merits, stand dismissed.

25] Rule discharged.

[DR. SHALINI PHANSALKAR-JOSHI, J.]

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