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.
1/20
WP-10699-17.doc
::: Uploaded on – 13/10/2017 14/10/2017 02:30:10 :::
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
2/20
WP-10699-17.doc
::: Uploaded on – 13/10/2017 14/10/2017 02:30:10 :::
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
3/20
WP-10699-17.doc
::: Uploaded on – 13/10/2017 14/10/2017 02:30:10 :::
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.
4/20
WP-10699-17.doc
::: Uploaded on – 13/10/2017 14/10/2017 02:30:10 :::
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
5/20
WP-10699-17.doc
::: Uploaded on – 13/10/2017 14/10/2017 02:30:10 :::
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
6/20
WP-10699-17.doc
::: Uploaded on – 13/10/201714/10/2017 02:30:10 :::
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,7/20
WP-10699-17.doc::: Uploaded on – 13/10/2017 14/10/2017 02:30:10 :::
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.”
8/20
WP-10699-17.doc
::: Uploaded on – 13/10/2017 14/10/2017 02:30:10 :::
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
9/20
WP-10699-17.doc
::: Uploaded on – 13/10/201714/10/2017 02:30:10 :::
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
10/20
WP-10699-17.doc
::: Uploaded on – 13/10/201714/10/2017 02:30:10 :::
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
11/20
WP-10699-17.doc
::: Uploaded on – 13/10/2017 14/10/2017 02:30:10 :::
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
12/20
WP-10699-17.doc
::: Uploaded on – 13/10/2017 14/10/2017 02:30:10 :::
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
13/20
WP-10699-17.doc
::: Uploaded on – 13/10/201714/10/2017 02:30:10 :::
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,
14/20
WP-10699-17.doc
::: Uploaded on – 13/10/2017 14/10/2017 02:30:10 :::
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
15/20
WP-10699-17.doc
::: Uploaded on – 13/10/2017 14/10/2017 02:30:10 :::
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.
16/20
WP-10699-17.doc
::: Uploaded on – 13/10/2017 14/10/2017 02:30:10 :::
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
17/20
WP-10699-17.doc
::: Uploaded on – 13/10/2017 14/10/2017 02:30:10 :::
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
18/20
WP-10699-17.doc
::: Uploaded on – 13/10/201714/10/2017 02:30:10 :::
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
19/20
WP-10699-17.doc
::: Uploaded on – 13/10/2017 14/10/2017 02:30:10 :::
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.]
20/20
WP-10699-17.doc
::: Uploaded on – 13/10/2017 14/10/2017 02:30:10 :::
