The Court pointed out that it had come in evidence that the appellant-wife had invested Rs 50 lakh in fixed deposits and also made investments in mutual funds. She has also invested another Rs 2 lakh that she got as interim maintenance in a fixed deposit. The Court noted that if she was in dire need of money she would used the funds of interim maintenance and not invested them in a fixed deposit. The Court further noted that she resided in a flat that she had bought with her husband, who said she had exclusive possession of the house which meant there was no rent to be paid. Relying on the judgment of Shehnaz Arvind Mudbhatkal Vs. Arvind Ramkrishna Mudbhatkal [2011 (6) Mah LJ 719] the Court ruled that since the wife is getting more than Rs 37,500 per month as interest and had more than Rs 50 lakh in the bank and in addition her son was providing money for her maintenance and other expenses hence no one was dependent in this case. [Madhu Gupta vs. Pravin Kumar Gupta, FCA No. 144 of 2013, decided on 11th February, 2014]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CORAM : SMT.V.K.TAHILRAMANI AND
SHRI. P.N.DESHMUKH, JJ.
DATED : FEBRUARY 11, 2014
Heard the learned counsel for the appellant-wife and
the learned counsel for the respondent-husband. By consent of
the parties, the matter is taken up for final hearing and
disposal.
For the sake of convenience, hereinafter, the
appellant will be referred to as "the wife" and the respondent
will be referred to as "the husband".
This Family Court Appeal has been filed by the wife
against the judgment and order dated 22.10.2012 passed in
M.J. Petition No. A-382 of 2008 by the Family Court No.2,
Bandra, Mumbai, whereby her counter-claim for maintenance
of
Admitted facts in this matter are that they
was dismissed.
have two children i.e. one son Anindya and one daughter. Both
The
the children are married and they are settled abroad.
husband had filed a petition for divorce on the ground of
cruelty which came to be dismissed. He has not challenged the
said decision in the petition for divorce.
The wife had filed
The husband contested the counter-
Rs.15,000/- per month.
counter-claim seeking judicial separation and maintenance of
claim by filing his Written Statement. The husband's petition
for divorce was dismissed on 13.1.2009 by the Family Court.
Thereafter, the wife adduced her evidence claiming for a
decree of judicial separation and maintenance of Rs.15,000/-.
On 13.8.2008, the Family Court exparte decreed the counter-
claim and accordingly decree of judicial separation was passed
and the husband was directed to pay Rs.25,000/- per month as
maintenance to the wife.
The husband preferred Misc. Civil
Application for setting aside exparte decree passed on
13.8.2008.
However, he did not challenge the decree of
judicial separation and he had only prayed for setting aside the
order relating to the maintenance. Misc. Civil Application was
granted on 19.3.2012. Thus, the decree passed on 13.8.2008
of
in relation to maintenance, was set aside by order dated
19.3.2012.
Thereafter, the wife led her evidence and the
evidence of her son Anindya and the husband adduced his
evidence.
It is well settled law that a wife who has no sufficient
permanent
source
of
income,
can
only
3
claim
and
get
ig
maintenance from her husband who is having sufficient means.
The burden lies on the wife to prove that the husband has
sufficient means.
refused and neglected to maintain her though he is having
The evidence of the wife and son Anindya
shows that the wife is staying separate since 2007 and the
husband
has
maintenance.
not
given
any
amount
her
towards
It is an admitted fact that both the parties are
staying separately since the year 2007.
to
As the decree for
judicial separation was granted in favour of the wife and the
decree of judicial separation has not been challenged by the
husband, on this ground the wife has a right to live separately
from husband. The husband has stated in his evidence that he
is staying in Australia and he is doing part-time work at Local
Community College (Nepean Community College).
He has
of
further stated that he was teaching three courses based on his
skills in Sales and Computers. Each course is of 8 lecturers of 2
hours duration each. He is paid 500 Australian Dollars post-tax
for the full course. His average monthly income post-tax was
400 Australian Dollars.
The learned counsel for the wife produced some
documents to show that the husband was a C.E.O. in XL2WIN
CONSULTANCY PVT. LTD. in Australia
The said business is
conducted from 40 Denzil Avenue, St. Clair, NSW 2759. She
pointed out that one other firm i.e. Architectural Drafting and
Design Services also carries out business from the very same
address which shows that the husband is connected with the
said business. In order to support the claim that the husband is
connected with both the businesses, she pointed out that the
address of the said two businesses is the same as the
residential address of the husband. As far as these documents
are concerned,
Court.
they were not produced before the Family
No evidence was led in respect to these documents.
Even if the said documents are taken into consideration, they
do not show the income of the respondent-husband.
Hence,
of
these documents would be of no use to the appellant-wife.
In considering the prayer for maintenance, two issues
5
have to be considered viz. (1) whether the husband has
capacity to pay maintenance ? and (2) whether the wife has
any source of income to maintain herself ?
The evidence of
The wife has to prove that she
ig
Australian Dollars per month.
the husband shows that he was earning an amount of 400
does not have any permanent source of income to maintain
herself. The wife is required to prove that she is not having
any permanent source of income and she is unable to maintain
herself. In order to prove the same, the wife has adduced her
evidence and evidence of her son Anindya. It is pertinent to
note that the wife has not specifically pleaded and stated in her
evidence that she is not having any permanent source of
income and that she is unable to maintain herself. It is further
pertinent to note that she has admitted in her cross-
examination in paragraph 52 that near about Rs.50 lakhs have
been deposited in the Banks as Fixed Deposits. As per Section
58 of the Evidence Act, admitted facts need not be proved.
Even otherwise the learned counsel for the appellant-wife has
of
the Bank.
admitted that about Rs.50 lakhs is in the name of the wife in
The evidence of the wife clearly shows that the wife
has invested Rs.50 lakhs in the Banks in Fixed Deposits and
she is getting interest on the said Fixed Deposits. In such case,
the appellant-wife could have produced and proved the Fixed
Deposit Certificates and rate of interest which she is getting.
she
has
not
produced
the
Admittedly,
Fixed
Deposit
ig
Certificates, therefore, it has not come on record that how
much interest she is getting.
In such case, she would get more
wife is a senior citizen.
It is an admitted fact that the
interest than the other depositors. If 9% is held to be the rate
of interest, then the wife would get Rs.4,50,000/- per year
which means that she would get Rs.37,500/- per month as
interest on Fixed Deposits of Rs.50 lakhs. The wife has stated
in her cross-examination at paragraph 48 that she is ready to
produce the Statements of Accounts of Mutual Funds standing
in her name alone but she has not produced the Statements of
Accounts of Mutual Funds. This shows that she has also made
investments in Mutual Funds in addition to Fixed Deposits
which clearly stand in her name but she has not produced the
same. If she would have produced the Statements of Accounts
of
therefore,
she
has
not
produced
the
same.
In
of Mutual Funds, then it would have gone against her,
such
circumstances, an adverse inference is required to be drawn
against the appellant-wife and it is required to be held that she
is getting some dividends regularly from the investments made
in the Mutual Funds.
The wife has admitted in her evidence that she is
staying in Sheetal Apartment at Andheri, Mumbai. The flat in
Sheetal Apartment at Andheri, according to her, was bought
out of the money put in by her and her husband. The husband
has another flat which is also in Andheri in Panchavati Building.
The learned counsel for the respondent-husband has stated
that the flat has been given exclusively to the wife and she is in
exclusive possession of the same. This fact is admitted by the
learned counsel for the appellant-wife. In such case, there is
no question of giving rent for accommodation to the wife.
The learned counsel for the appellant-wife submitted
that though the Family Court had held that the wife has to
incur medical expenses, daily expenses, maintenance of
of
maintenance to the wife.
society etc. yet, the Family Court has not awarded any
She further pointed out that on
30.11.2013 the wife was required to undergo surgery for both
knees and the expenses for the said surgery came to about
Rs.10,39,000/-.
She has further stated that the flat in which
the wife is staying is in dire need of repairs and she has
produced a copy of a letter of the Architect dated 9.1.2004
which shows that the flat needs repairs. Thus, it was submitted
that the wife would be required to incur expenses in relation to
the repairs of the flat also. As far as the documents relating to
the medical expenses for knee replacements are concerned,
the said expenses were incurred on 30.12.2013 which was
after the judgment and decree was passed in the present case.
The judgment and decree in the present case was passed on
22.10.2012 and the events mentioned in the documents have
occurred after the judgment and decree has been passed. In
view of this subsequent developments, the judgment passed
by the learned Judge of the Family Court cannot be faulted.
Similar is the situation in respect of the expenses for repairs of
the flat.
of
It was contended on behalf of the wife that amount
was siphoned off by the husband from their joint account.
The
said amount was about Rs.19,85,641/-. It is interesting to note
that the wife herself had not made any mention about the
same in her evidence.
The son Anindya has made some
reference to such fact, however, no witness from the Bank has
been examined to prove that the husband had siphoned off
such amount from the joint account.
The learned counsel for the appellant-wife reiterated
time and again that the appellant wife was and is a home
maker and she has no independent source of income. It is also
an admitted fact that the wife has Rs.50 lakhs in Bank
Accounts, obviously, as the wife was not earning, the said
amount of Rs.50 lakhs must have come out of the husband's
earning. Besides the amount of Rs.50 lakhs which is deposited
in the Fixed Deposits in the name of the wife, it may be stated
that the husband had deposited Rs.2,00,000/- by way of
interim maintenance
for the wife.
The wife was allowed to
withdraw the said amount. She has deposited the said amount
in the Bank as Fixed Deposits which is admitted by her in her
of
If really the wife was in
cross-examination in paragraph 58.
need of money for her maintenance, then definitely she would
Deposits in the Bank.
have spent the amount and would not have invested it in Fixed
This shows that the wife is having
sufficient money for her maintenance. The wife is getting at
least an amount of Rs.37,500/- per month from the Fixed
In addition, she is getting some additional amount
Deposits.
of interest on Rs.2,00,000/- which has been invested by her
which was received by her by way of interim maintenance. In
addition to this amount, she is getting some amount by way of
interest on the money she has invested in Mutual Funds.
All
these amounts are more than sufficient for her maintenance. It
is seen that the wife is having sufficient permanent source of
income to maintain herself.
The learned counsel for the respondent-husband
submitted that the wife is having sufficient means for her
survival and therefore, she is not entitled to get maintenance.
He has placed reliance on the ratio laid down by this Court in
the case of Shehnaz Arvind Mudbhatkal Vs. Arvind
Ramkrishna Mudbhatkal reported in 2011(6) Mh. L. J. 719.
of
In the said case, this Court observed that the wife was earning
Rs.45,000/- per month as salary and she has received Rs.11
her.
lakhs as back-wages. Her daughters were not dependent on
Therefore, this amount is sufficient to the wife for her
maintenance. This Court observed that in such case, the wife
is not entitled for maintenance from the husband.
In the
present case, it is seen that the wife is getting more than
ig
Rs.37,500/- per month as interest. She has more than 50 lakhs
in the bank. In addition, the applicant's son is providing money
on her.
for her maintenance and other expenses. No one is dependent
Thus, the facts in the decision relied upon and the
facts in the present case are quite similar and the ratio would
apply to the facts of the present case.
Looking to the evidence on record, we are of the
opinion that the Judge of the Family Court has rightly held that
the appellant-wife is having sufficient income for her survival
and she has failed to prove that she is entitled for any
maintenance. Thus, we find no merit in the present Appeal.
Appeal is, therefore, dismissed.
of
In view of dismissal of the Family Court Appeal, Civil
12
Application Nos. 137 of 2013 and 16 of 2014 do not survive and
[SHRI. P.N.DESHMUKH, J.]
are disposed of as such.
[SMT. V.K.TAHILRAMANI, J.]
No comments:
Post a Comment