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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
WRIT PETITION NO. 1249 /2011
Mr Harish s/o Nandlal Gaba
Aged 42 years, occu: Business
R/o 44/17A, Saraswati Vihar
Opp: Reliance Web World Mall Road
Amritsar (Punjab). .. ...PETITIONER
ig v e r s u s
Smt. Monica Harish Gaba
Aged 39 years, occu: Hosuewife
R/o C/o Laxmandas Narang,
Op: Avanti Hospital, Dhantoli,Nagpur
Tah. & Dist. Nagpur. ...RESPONDENT
............................................................................................................................
Mr. H D Dangre, Advocate for the petitioner
Mr.K M Nankani, Advocate for respondent
.......................................................................................................................
CORAM: R.M.SAVANT, J.
DATED : 19TH JULY,2011,
ORAL JUDGMENT :
Rule. With the consent of the parties, made returnable forthwith
and heard.
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2. The above petition takes exception to the order dated 2.12.2010
passed by the learned Principal Judge, Family Court, Nagpur by which
order, the petitioner-herein has been directed to pay Rs.20,000/- per
month towards maintenance pendente lite from the date of the application
till the disposal of the main petition.
3. The facts involved can be stated thus : The marriage between
the petitioner and the respondent was solemnized on 29.11.1993. The
petitioner-husband is resident of Amritsar (Punjab); whereas the
respondent-wife was residing with her parents at Nagpur. The petitioner
and the respondent have a daughter by name, Taniya, who is aged about
15 years. It appears that on account of the marital discord, the respondent
left the matrimonial house on 1.4.2009 along with her daughter Taniya.
The petitioner thereafter filed an application under section 9 of the Hindu
Marriage Act for restitution of conjugal rights in the Court of learned Civil
Judge, Sr.Dn.,Amritsar. It appears that the relations between the parties
came to such a pass that criminal complaints were filed against the
petitioner and his family members. It appears that thereafter the
respondent-wife filed a petition u/s 13 (1) (ia) of the Hindu Marriage
Act for dissolution of marriage and return of stridhan which petition was
numbered as A-445/2009 before the Family Court at Nagpur. In the
said petition, the respondent-wife filed an application which was
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numbered as Exh. A under section 24 of the said Act for grant of
maintenance @ Rs. 25,000/- pendente lite and Rs. 50,000/- as litigation
expenses.
4. It was the case of the respondent-wife that the petitioner was
doing business in the name and style of “Taniya Jewellers” and was dealing
in gold and diamond jwellery. It was the case of the respondent that the
monthly income of the petitioner was Rs.1,25,000/- ;wheres the
respondent was at the mercy of her parents and her friends for
survival. It was further the case of the respondent that considering the
lifestyle to which she was used to while staying with the petitioner, a sum
of Rs. 25,000/- be fixed as maintenance pendente lite so that she could
take care of herself and her daughter who is now past 15 and who is
studying in X standard, so that they could have the same life-style
which she was used to while staying with the petitioner. To the said
application, the petitioner filed his reply and inter alia denied the claims
and contentions of the respondent. It was denied that the petitioner was
doing the business in the name and style of “Taniya Jewellers”. It was
further denied that his income was Rs.1,25,000/-. The petitioner annexed
the Income Tax return form for the assessment year 2007 -08 wherein his
income was shown as Rs.1,07, 037/- for the assessment year in question.
It was further the case of the petitioner that the respondent was running
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a Boutique, out of which she was earning approximately Rs.12,000
per month.
5. The Family Court considered the said application Exh.8 filed
by the respondent for maintenance pendente lite and considering the
respective cases thought it fit to fix the interim maintenance at
Rs.20,000/- per month. The gist of the reasoning of the Family Court was
that the petitioner herein has not filed any document to show that his
income was Rs.10,000/- per month and on the basis that the income out
of the jewelery shop must be more than Rs.1,00,000/- per month, the
Family Court deemed it fit to fix the maintenance pendente lite in the said
sum of Rs.20,000/- by the impugned order dated 2.12.2010 as indicated
above. It is the said order which is the subject-matter of challenge in the
above petition.
6. Heard learned counsel for the parties. Mr. H D Dangre, learned
counsel for the petitioner sought to raise three contentions: Firstly that
the petition filed in the Family Court, Nagpur was not maintainable in
view of Section 19 of the Hindu Marriage Act, 1955 ; secondly that there
are no pleadings in support of the claim of Rs.25,000/- as maintenance
and thirdly that he has never deserted the respondent and an order of
Rs.5000/- was already operating against him in the domestic violence
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proceedings adopted by the respondent.
7. Per contra, it is submitted by Shri Nankani, learned counsel
appearing for the respondent-wife that the impugned order passed by the
Family Court need not be interfered with in the facts and circumstances of
the case, when the petitioner admittedly is not working and has to look
after a 15-year old daughter who is studying in X standard. Learned
counsel would contend that the petitioner herein has very cleverly not
disclosed his income from the business of Taniya Jwellers and has sought
to merely rely upon the return filed under the Income Tax Act. Learned
counsel would contend that in the facts and circumstances of the case, the
interim maintenance fixed at Rs.20,000/- need not be interfered with.
8. Having heard learned counsel for the parties, in my view, the
order fixing interim maintenance need not be interfered with save and
except to the extent that would be mentioned hereinafter:
9. It is pertinent to note that from the documents which the
petitioner himself has filed in the trial Court, it is ex-facie clear that the
petitioner is carrying on business in the name and style of “Taniya
Jewellers”. If it was the case of the petitioner that his income from
the said Jewellery business was Rs.10,000/-, he should have
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produced the relevant documents in that behalf. The trial Court in the
absence of any material produced by the respondent was right in drawing
an inference that it is impossible to accept that the income from the
jewelery business is only Rs.10,000 per month. It is further pertinent to
note that the petitioner has specifically averred as regards the life-style
which she was enjoying while she was staying with the petitioner in the
matrimonial home. The petitioner also does not dispute the fact that their
daughter is now 15 years old and is studying in X standard in a reputed
school in the city of Nagpur. Considering the said facts, in my view, the
Family Court has proceeded on the correct premise that the respondent
would be entitled to the same standard which she enjoyed while she was
in the matrimonial home.
10. The fact that the daughter is studying in X standard would also
be a relevant fact while considering the issue of maintenance pendente lite
as the maintenance is sought in respect of respondent-wife as also the
daughter. Learned counsel for the respondent-wife in the course of
arguments submitted that the fees of the school wherein the daughter of
the petitioner and the respondent studying is in the sum of Rs.80,000/- per
year. Considering the said aspect the maintenance pendente lite has to be
commensurate with the said expenses that the respondent wife is
incurring for her own maintenance as well as the maintenance of the
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daughter. However, one fact cannot be lost sight of is that the
respondent wife is already getting Rs.5000/- in the proceedings filed under
the Domestic Violence Act by the respondent at Nagpur. Hence, the
maintenance pendente lite is required to be interfered with to the extent of
reducing it by Rs.5,000/- to make it Rs. 15,000/- per month. In my view
the issue of the jurisdiction of the Family Court at Nagpur need not be
gone into while considering the issue of interim maintenance. Save and
except the modification as aforesaid, no interference is called for with the
impugned order dated 2.12.2010 passed by the Family Court. The Writ
Petition is, therefore, allowed to the extent above. Rule is accordingly made
partly absolute. Parties to bear their respective costs.
JUDGE
sahare
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