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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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