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Shri Sachin Shankar Jadhav vs Smt. Swetambari Sachin Jadhav on 4 December, 2018

Dinesh Sherla 913-cwp-5788-17

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5788 OF 2017

Shri Sachin Shankar Jadhav .. Petitioner
vs.
Smt. Swetambari S. Jadhav .. Respondent

Mr.J.M. Puranik for the Petitioner.
Ms Swapna P. Kode for the Respondent.

CORAM : M. S. SONAK, J.
DATE : 4 DECEMBER 2018.
P.C. :-

1] Heard Mr. Puranik for the petitioner and Ms Swapna Kode for

the respondent.

2] The challenge in this petition is to the order dated 29 th

December 2016 made by the learned Trial Judge. The operative

portion of which reads as follows:

“1. Application is allowed.

2. The petitioner is directed to pay maintenance pendente lite
Rs.10,000/ per month to the respondent from the date of
application till pendency of the petition”.

3] Mr. Puranik, the learned counsel for the petitioner, submits

that the petitioner – husband had produced income tax returns on

record from which it is evident that the income of the petitioner is

between Rs.20,000/- to Rs.25/- per month. He submits that the

respondent-wife had stated before the Trial Court that she is in

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service and in receipt of income. However, this vital and relevant

aspects have not even been considered by the learned Trial Judge

while making the impugned order. For these reasons, Mr. Puranik

submits that the impugned order warrants interference.

4] Mr. Puranik relies upon Neeta Jain vs. Rakesh Jain – (2010)

12 SCC 242 to submit that a wife who is admittedly earning salary is

not entitled to maintenance under Section 24 of the Hindu Marriage

Act, 1955 (H.M. Act). He relies upon Alok Kumar Jain vs. Purnima

Jain – DRJ 2007 96 115 and Mamta Jaiswal vs. Rajesh Jaiswal –

(II) 2000 DMC 170 2000 (4) MPHT 457 in support of the very

same propositions. For all these reasons, Mr. Puranik submits that

the impugned order warrants interference.

5] Ms Swapna Kode, the learned counsel for the respondent –

wife, defends the impugned order on the basis of reasoning set out

therein. She submits that the learned Trial Judge has taken into

consideration the income of the respondent – wife and only

thereafter determined the interim compensation at the rate of

Rs.10,000/- per month. She submits that under Section 24(2) of

H.M. Act, the wife is entitled to maintenance so as to be able to live

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substantially the same lifestyle as she was accusotmed to whilst in

active matrimony. She submits that there is no error in the

impugned order and therefore, this petition may be dismissed.

6] The rival contentions now fall for determination.

7] There is no dispute as regards the liability for payment of

interim maintenance. The dispute is only as regards the quantum.

8] The respondent – wife had made disclosure as regards her

service and income from her service. The impugned order takes into

consideration such disclosure and it is only thereafter that the

interim maintenance amount has been determined at the rate of

Rs.10,000/- per month. The respondent has produced before this

Court the salary slips, from which, it is seen that she earns a salary

of Rs.10,000/- to Rs.15,000/- per month. Such earnings, are

relevant consideration, but the same have been taken into

consideration by the learned Trial Judge while making the impugned

order.

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9] From the income tax returns placed on record by the

petitioner, the income of the petitioner is shown as Rs.25,000/- to

Rs.30,000/- per month. However, the record indicates that the

petitioner is a share broker in Mumbai. Taking into consideration

this factor as well as other material on record, it is really not

believable that the petitioner’s income is only what is reflected in the

income tax returns. The Division Bench of this Court in Vinod

Mehta vs. Kanak Vinod Mehta – AIR 1990 Bombay 120, has held

that income tax returns is not the sole guide for determining income

of party in such proceeding. In fact, the Division Bench has held that

it is common knowledge that income tax returns do not reflect the

true position of the income of a party for several reasons, and cannot

be taken as the sole guide for determining the income proceedings

for maintenance. To the same effect are the observations made by

the Delhi High Court in Bharat Hegde vs. Smt. Saroj Hegde – AIR

200 Delhi 197.

10] In Neeta Jain (supra), the Apex Court has held that the Court

has to take all the relevant factors into account and arrive at a

proper amount and maintenance. The income of the respondent

-wife is no doubt a relevant consideration. However, the impugned

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order takes into account such consideration in determining the

maintenance amount, the Court has to take into consideration the

lifestyle which parties were accustomed to whilst in active

matrimony. All these aspects have been considered by the learned

Trial Court in making the impugned order.

11] The award of interim maintenance at the rate of Rs.10,000/-

per month in the facts and circumstances of the present case cannot

be said to be excessive or unreasonable.

12] Accordingly, this petition is liable to be dismissed and is

hereby dismissed. There shall be no order as to costs.

(M. S. SONAK, J.)

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