It is a settled legal position that the conduct of the parties
is not relevant for deciding the point of interim maintenance.
Therefore, whether respondent was in adulterous relationship with
her alleged paramour, whether she has engaged herself in a
litigation with widowed wife of her paramour are not the relevant
considerations at this stage.
So, those considerations are not
touched in this order.
IN THE FAMILY COURT MUMBAI AT BANDRA
INTERIM APPLICATION NO.304 OF 2011
IN
PETITION NO.A-2283 OF 2010
Sudipta Kumar Sen
... Petitioner
Vs.
Suvra Sen
... Respondent
CORAM : HER HONOUR JUDGE
SHRI. P. L. PALSINGANKAR
DATED : 20th NOVEMBER, 2012.
ORDER BELOW EXH.15
This is an application for interim maintenance and legal
expenses by respondent-wife. Application is opposed by filing reply
at Exh.16. I have heard learned Counsels for both side. Following
points arise for determination with my findings thereon for the
reasons to follow.
Points
Findings
1. Whether respondent have Yes.
sufficient independent income for
her support and necessary expenses
for the proceeding ?
2. Whether respondent-wife is entitled No.
for interim maintenance ?
REASONS
Points No.1 & 2 :-
2.
The learned Counsel for the respondent submitted that
petitioner is drawing annual income of Rs.2 Crores and therefore
respondent be awarded interim maintenance of Rs.6,00,000/- per
month. The learned Counsel for the petitioner brought to my notice
the averment in para No.15 of this application, where respondent
has admitted that she earns Rs.24,00,000/- annually.
So, it was
argued from the side of petitioner that respondent is able to sustain
herself and hence not entitled for maintenance under Section 24 of
Hindu Marriage Act, 1955. It was also argued that respondent has
left petitioner and daughter to pursue her illicit relationship. It was
also submitted that paramour of respondent has died and
respondent has engaged herself in a litigation with the widowed wife
of her paramour for claiming a property at Bengaluru. It was thus
prayed that the application be rejected.
3.
When the point of interim maintenance arises, the Court
has to decide whether income of the applicant is insufficient to
support herself and to support the litigation. In other words applicant
has to convince the Court that the requirements of Section 24 of
Hindu Marriage Act, 1955 exists in her favour.
4.
The learned Counsel for the respondent relied upon
judgment of Calcutta High Court in case of Chitra Sengupta Vs.
Dhruba Jyoti Sengupta reported in AIR 1988, Cal.,98. In this case
the Calcutta High Court has tried to define the term “to support”. In
para No.4 it is observed that the term “to support” lexically means to
supply with necessaries and that supply of necessaries in respect of
a person must be suited to his condition in life. In simple words the
High Court observed that the position and status of the party must be
considered.
5.
The respondent relied upon judgment of Calcutta High
Court in case of Pampa Das Vs. Sanjib Das reported in AIR 2005,
Cal. 266. In this case Hon'ble Calcutta High Court has hold that
conduct of the party is not a relevant consideration for interim
maintenance.
6.
The learned Counsel for the respondent relied upon
judgment of our High Court in case of Bijal Parag Dave Vs. Parag
Labhashankar Dave reported in 1999 (2) MAH. L.J., 276. In this
case our High Court has observed that while considering application
for maintenance pendente lite, the only consideration of the Court is
inability of the spouse to maintain herself for want of financial means
or inadequacy of financial means to maintain at the level of social
status of the other spouse from whom interim maintenance is sought
and not the misconduct of the applicant spouse. So, our High Court
has also underlined the legal position that conduct of the parties is
irrelevant.
7.
Some documents are filed at Exh.31 from respondent's
side. These documents relate to income tax returns of petitioner for
the year 2009-2010 onwards till date.
2009-10
the
gross
total
income
For the assessment year
of
petitioner
is
shown
Rs.1,07,97,163/-. For the assessment year 2010-11 petitioner has
disclosed his gross total income as Rs.1,49,74,610/-.
For the
assessment year 2011-12 he has disclosed his gross income as
Rs.1,37,22,729/-.
So, reliance is placed on these documents to
contend that income of husband is far more than income of wife.
8.
The respondent has filed additional affidavit at Exh.27
and clarified that her current gross salary is Rs.1,76,000/- and she is
employed by Sapphire Human Solution. She has placed on record
copy of letter of appointment by the employer, photographs and
other relevant documents like copies of Insurance policy.
9.
It is a settled legal position that the conduct of the parties
is not relevant for deciding the point of interim maintenance.
Therefore, whether respondent was in adulterous relationship with
her alleged paramour, whether she has engaged herself in a
litigation with widowed wife of her paramour are not the relevant
considerations at this stage.
So, those considerations are not
touched in this order.
10.
The very purpose of providing Section 24 in the Hindu
Marriage Act is to enable a financially weak party to litigate his or her
right in the matrimonial courts. The purpose is to put both the parties
on similar pedestal, so that the weaker party can have a fair fight in a
Court of law.
So, such proceedings have a limited purpose of
enabling weaker parties to substantiate his/her rights during
pendency of proceeding.
So, while coming to the Court, the
applicant under Section 24 of Hindu Marriage Act must satisfy the
Court that she or he do not have sufficient means to maintain
herself/himself to support her/his life and to fight a litigation. From
the admitted position, the respondent is earning Rs.24,00,000/- per
annum. She has filed additional affidavit in support of her application
and contended that she is earning Rs.1,76,000/-. So, from her own
words I can believe that she is earning not less than Rs.2 Millions
per annum. So, I have posed a question to learned Counsel for the
respondent whether a millionaire can make an application for interim
maintenance. The learned Counsel for the respondent submitted
that income of husband is far more than the income of the wife.
From the income tax statements, no doubt, it appears that the gross
annual income of petitioner is more than Rs.1 Crore. So, it was
argued that respondent is entitled for interim maintenance of
Rs.6,00,000/- per month.
11.
The term “income” is an expression of elastic ambit, a
word of the broadest connotation, and is difficult to define in any
precise general formula. What is a sufficient income in one case
may not be a sufficient income in another case.
A sufficient
maintenance in case of a wife of a common employee may not be a
sufficient maintenance to a wife of a Board of Director of a
successful company.
The question here is can that principle be
overstretched to such an extent to include such millionaire wives into
the list of beneficiary under Section 24 of Hindu Marriage Act. My
answer to that question is in negative.
If Family Court starts
accepting such pleas even at interim stage under Section 24 of
Hindu Marriage Act, then a wrong message will be sent to the
society and to litigating public in Family Court. Even a rich lady can
engage her husband in such frivolous interim litigations. Here the
respondent is earning Rs.2,00,000/- per month, i.e. Rs.24,00,000/-
per year. She wants Rs.6,00,000/- as a maintenance from her
husband. If that is allowed, then her income would swell to
Rs.8,00,000/- per month and that comes to more than Rs.1 Crore
annually. From millionaire she wants to become multi-millionaire.
This is not permissible in this Court. This is a clearcut abuse of
process of law.
The maintenance under Section 24 of Hindu
Marriage Act, 1955 cannot be for luxuries in the life. Or, otherwise,
thee will be no meaning to the term “sufficient to support her life”. If
we give a bare look at para No.17 and 18 of her application, then
fabulous figures are mentioned. She has claimed Rs.1.5 Lacs per
month on account of rent, Rs.52,000/- on Car loan EMI, Over Time
of Driver, Petrol and Maintenance of Car, Rs.15,000/- for the
Servants, Rs.7000/- for Electricity, Rs.20,000/- for Groceries,
Rs.15,000/- for Medicine, Rs.30,000/- for Medical Supervision,
Rs.20,000/-
for
personal
care,
Rs.25,000/-
for
personal
miscellaneous like social interactions, party, gifts etc., Rs.50,000/- for
Credit card payments, Rs.3,00,000/- per month for payment of
Pension Plan Premium, Rs.80,000/- per annum for Domestic Air
Travels, Rs.5,00,000/- per annum for International Air Travels. All
these items are luxury items.
These items are not needed for
sustenance. She is already earning more than Rs. 2 Millions per
annum to maintain her lifestyle.
Only because her husband is
traveling in a BMW provide by his employer, she cannot extract an
interim maintenance order to support that lifestyle. Only because
her husband is living in a accommodation provided by his employer
at Marine Drive, she cannot extract money for having similar
accommodation in Marine Drive.
With due respect to the
pronouncement of Calcutta High Court in case of Chitra Sengupta
Vs. Dhruba Jyoti Sengupta reported in AIR 1988, Cal.,98 (referred
above), the principle cannot be overstretched in this case to grant
Rs.6,00,000/- per month as a maintenance in addition to her own
earning of Rs.2,00,000/- per month. So, considering the facts of this
case, I am of considered opinion that respondent has abused the
process of law by moving an application under Section 24 of Hindu
Marriage Act. That provision is only for those weak spouses, who
cannot come to Court and fight a litigation for want of money, that
provision is for those spouses who cannot sustain their life with their
meager earning.
The richy rich spouses cannot explore that
provision to get fat maintenance.
12.
The claim of alimony implies the assumption that a
woman is economically helpless.
So, when a party or a spouse
come to this Court with an application under Section 24, she must
satisfy that she is unable to maintain herself. Despite being the fact
that she is a Millionaire (earning more than Rs.2 Millions per annum),
she has approached this Court with an application for interim
maintenance. The dockets of this Court are overflowing, may be
because of such frivolous litigations.
The Hon'ble Apex Court in
case of A. Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu
Madalaya Nandhavana Paripalanai Sangam, represented by its
President etc., reported in 2012 (2) CCC 145 (SC) has taken a
strong view of such frivolous litigation.
In para No.216 of it's
judgment the Apex Court has sensitized Lower Court that they
should ensure that the legal process is not abused by the litigants in
any manner. It is also observed that the Court never permit a litigant
to perpetuate illegality by abusing process of law. In para No.199 of
the said judgment the Apex Court has observed that one of the main
reasons for overflowing of Court dockets is the frivolous litigation in
which the Courts are engaged by the litigants and which is dragged
as long as possible.
It is observed that even if these litigants
ultimately loose the lis, they become the real victors and have the
last laugh. The Supreme Court has underlined the importance of the
principle of restitution mens profit and cost in such proceedings. The
Apex Court observed that while awarding cost in such cases, the
Court must take into consideration pragmatic realities and be
realistic in quantifying the amount of cost. Considering the above
legal position, considering the above discussion, I am of considered
opinion that this application is nothing but an abuse of process of law
by a rich woman who herself is employed and well placed and earns
a handsome and fabulous salary to support her cause. She cannot
come to the Court to extract luxuries from her husband.
The
maintenance is for sustenance and not for partying around with the
amount extracted from husband.
Therefore, the claim of interim
maintenance for partying and socializing is nothing but an abuse of
process of law.
accordingly.
So, I answer both points for consideration
I am justified in imposing cost of Rs.10,000/- for
respondent for moving a frivolous application. This will ensure that a
proper signal is sent to the society to litigating class that spouses
having sufficient income to support their life should not approach this
Court with such frivolous claims. With this I conclude and pass the
following order.
ORDER
Application stands rejected with costs of Rs.10,000/-.
20th November, 2012
Sd/-20-11-2012
( P. L. Palsingankar )
Judge
Family Court No.3, Mumbai.
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