It wold be unjust and unreasonable to disallow a woman her claim to maintenance when it is seen that she did not pursue a career or be in service during the subsistence and continuation of her marriage and had taken up a job or service only when the parties separated.
15.This phenomenon can be appreciated from another angle also. A wife, who is in service is entitled and often required, to give up her service after marriage. She is equally entitled to give up her service after the parties separate. She is entitled to make a claim for maintenance thereafter. Of course, the bona fides of such a claim would have to be seen from the facts of each case. In normal circumstances, upon such a claim
being made, the husband would be obliged and bound to maintain her. In such a case, her maintenance amount would be determined based only upon the income of her husband.
Bombay High Court
Anup Avinash Varadpande vs Anusha Anup Varadpande on 11 January, 2010
Bench: R. S. Dalvi
1.Heard both sides.
2.Rule. Rule is made returnable forthwith.
3.Upon a matrimonial dispute for interim maintenance prosecuted in the Family Court, the Petitioner-husband has impugned the order of the Principal Judge, Family Court, Pune, dated 31st March 2009, Exhibit-H to the Petition. The order for maintenance is granted upon the Application for interim maintenance made by the Respondent-wife for grant of Rs.60,000/- per month and expenses of Rs.10,000/- for maintenance. The wife has essentially provided the details about the income of the husband from his Internet profile. His Internet profile shows him to be dealing in various capacities in various Firms. The learned Judge has considered the 2
position of the husband in 4 Companies being A.K. Engineering Services, M/s.Mountain Movers, M/s.Ashwini Market and M/s.Saikrupa Distributors. Whereas the wife claims that the husband owns each of these Undertakings, the husband claims that he owns none. The husband is shown as contract person for M/s.Saikrupa Distributors. He shows as Head of Sales of A.K. Engineering Services. He shows the distribution of earth moving machines by him and he is shown concerned with one Ashwini Marketing, who is the authorised dealer of Cummins Diesel Sales & Services.
4.The husband is a businessman. He deals in various capacities. The husband has refuted the claim shown in his Internet profile. He has shown the names of his father, mother and brother instead in several of these Undertakings in various capacities.
5.He claims that he had a dealership contract with A.K. Engineering Services which was terminated on December 31, 2008. He has produced certificate of registration of 1984 issued on 30.12.1994 in the name of his father as proprietor of A.K. Engineering Services. The husband, therefore, had a contract with his father. That contract is shown to be terminated after the wife sued for interim maintenance. A termination by way of a letter on a Stamp Paper of Rs.100/- simpliciter is 3
produced. The learned Judge has naturally not accepted the termination of the contract of the husband in his own father s Undertaking.
6.It is common knowledge that husbands who desire to fail and neglect to maintain their wives in consonance with their martial obligation and statutory duty to maintain them create evidence of termination of their services or contracts so soon as the marriage breaks down, parties separate or the wife makes her claim for maintenance. Production of a mere letter or order of termination of service or resignation from service cannot be relied upon or considered by the Court in the absence of proof of execution of such a document and genuineness and bona fides of its creator. There is no reason for an otherwise qualified and physically capable husband to have to be dismissed or terminated from service or to resign his job or discontinue his career. In this case, it is not surprising that the firm from which his dealership contract is terminated is shown, under an unregistered partnership deed (the kind of which that can be fabricated at any time) to belong essentially to his father and brother and the place of business of the partnership is shown to belong to his mother as shall be seen presently.
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7.Mr.Warunjikar argued that the Internet profiles need not be taken as a guide to conclude the husband s income. He is merely shown against the products of the various Undertakings. He owns none of the products himself. The only document showing his true financial position is the income tax returns which has been wrongly rejected by the learned Judge and hence interference by this Court is required.
8.Relating to various vehicles shown in the Internet profile against his own photographs, the husband has produced certain RTO registration of the vehicles. One is shown to stand in the name of his mother and father. The other vehicle is in the name of M/s.Mountain Movers. An unregistered Deed of Partnership on a stamp paper of Rs.100/- dated 27.11.1998 of the Firm M/s.Mountain Movers at Gulbarga, shows the husband s father Avinash and his brother Mohan as the main partners. If that is to be accepted, the Internet profile is intendedly deceptive and even dishonestly made.
9.The learned Judge has accepted the internet profile. The husband has relied upon his income-tax returns showing an annual income of about Rs.2 Lakhs which is rightly rejected as not representing his true financial status and income by 5
the learned Judge in view of his association with as many as 4 Companies. The husband has not produced the same before this Court.
10.The husband has produced before this Court the income- tax returns of his mother Ashwini instead. She is also shown to receive profits from Ashwini Marketing as well as rent from A.K. Engineering Services, which form a part of the Internet profile of the husband himself. It is, therefore, seen that these are family concerns where the husband is legitimately financially interested. The income-tax returns of the mother shows the loan taken by her from the husband who is her son. Placing reliance upon such family Undertakings and upon rejection of the husband s claim that he has washed his hands off each of his Undertakings, including dealership agreement, contrary to the information given out by him in his Internet profile, the learned Judge has rejected his contention but granted interim maintenance of only Rs.15,000/-.
11.The husband lives in a bungalow, has membership of at least one Club. He lives in affluent circumstances which fact is considered by the learned Judge. The bungalow is a family property. Though the husband has not produced the documents of purchase by the mother, he claims, upon the record of rights, that his mother 6
is the owner.
12.The learned Judge has also considered some paltry income that the wife earns from her service as a primary school teacher in Symbiosis Primary school on temporary basis, earning Rs.5,000/- per month as reflected as in the salary slip shown by her. Mr.Warunjikar has contended that it is erroneous to consider the net income of the wife after deduction of her provident fund, etc., and that the learned Judge should have considered her gross income. The wife secured this job in 2008. The parties married on 14.10.2006. They admittedly separated in March 2007. The wife is seen to have taken the temporary job out of a constraint to earn her living. It may be mentioned that a paltry income earned by the wife, specially after separation or upon the neglect of the husband to maintain the wife, cannot be termed as her income . It is merely an amount received upon the constraint to serve to make ends meet. Such amount can hardly be considered for determining sufficiency of income.
13.What is contemplated to be income in any provision for grant of interim maintenance, be that under Section 24 of the Hindu Marriage Act, Section 18 of the Hindu Adoptions and Maintenance Act, Section 20(1)(d) of the Protection of Women from Domestic Violence Act, 2005, 7
under Section 125 of the Criminal Procedure Code, or any other similar legislation is that the wife, of her own volition, and upon her educational or professional qualifications, pursues a settled career either by way of service or profession or business in which she derives her own independent, separate income or otherwise earns income by way of investments, rents, profits or the like from any settled source of income. The sufficiency or otherwise of such income is required to be seen and calculated to grant or reject her claim of maintenance.
14.It wold be unjust and unreasonable to disallow a woman her claim to maintenance when it is seen that she did not pursue a career or be in service during the subsistence and continuation of her marriage and had taken up a job or service only when the parties separated.
15.This phenomenon can be appreciated from another angle also. A wife, who is in service is entitled and often required, to give up her service after marriage. She is equally entitled to give up her service after the parties separate. She is entitled to make a claim for maintenance thereafter. Of course, the bona fides of such a claim would have to be seen from the facts of each case. In normal circumstances, upon such a claim 8
being made, the husband would be obliged and bound to maintain her. In such a case, her maintenance amount would be determined based only upon the income of her husband.
16.Hence if a wife is constrained to earn in a service taken up by her to make ends meet or to survive with dignity pending the actual receipt of maintenance from her husband after following the usually labourious legal process, in our judicial system wrought with the consummate delays, she cannot be penalised for the legitimate means of earning her modest and honest livelihood. Earnings of a primary school teacher who has been neglected and failed to be maintained by a businessman husband cannot even be justified to be deducted from an amount deemed fit and reasonable to be paid to her as maintenance from the income of the husband.
17.Nevertheless, the learned Judge has considered her net income of Rs.5,000/- from her salary certificate and granted the amount of maintenance of only Rs.15,000/- per month.
18.The order is not perverse. The Writ Petition is rejected. Rule is discharged accordingly.
(SMT.ROSHAN DALVI, J.)
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