Bombay High Court
Roma Rajesh Tiwari vs Rajesh Dinanath Tiwari on 12 October, 2017
Dixit
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10699 OF 2017
Roma Rajesh Tiwari ]
Age 38 years, Occ. Housewife, ]
Temporarily R/at C/of Vedprakash Pandey, ]
19/20, Dena Bank Building, ]
3, Pasta Lane, Above Maratha Stores, ]
Colaba, Mumbai - 400 005. ] .... Petitioner
Versus
Rajesh Dinanath Tiwari ]
Age 38 years, Occ. Service, ]
R/at Neelgiri Lok Everest C.H.S. Ltd., ]
502, J.S.D. Road, Cement Company, ]
Near St. Girgorious High School, ]
Mulund (West), Mumbai 400 080. ]
Also allegedly residing at ]
Kailash Residency, Room No.303, ]
House No.1205, Sector-1, Shirvane, ]
Nerual, Navi Mumbai - 400 706. ] .... Respondent
Mr. Rajesh L. Dharap for the Petitioner.
Mr. S.R. Dubey for the Respondent.
CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.
DATE : 12 TH OCTOBER 2017.
1/20
WP-10699-17=.doc
::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:30:10 :::
ORAL JUDGMENT :
1. Rule. Rule is made returnable forthwith. Heard finally, by consent of learned counsel for the Petitioner and Respondent.
2. This Writ Petition is filed against the order dated 26 th May 2017 passed by Family Court No.4, Mumbai, below Exhibit-20 in Petition bearing No.A- No.630 of 2014, thereby rejecting the Petitioner-wife's prayer for interim maintenance.
3. The facts of this Writ Petition are to the effect that, according to the Petitioner, her marriage with the Respondent was solemnized on 27th April 2009. Thereafter, she was residing with the Respondent and out of the wed-lock, one daughter by name 'Aarna' is born, who is at present studying in the school. Thereafter, on account of the cruelty meted out to her and being driven out of the matrimonial house, she has to reside separately with her parents and she has no source of income to maintain herself and her daughter. It is her case that, monthly expenses of her daughter amounts to Rs.20,000/-, which includes education, food, clothing, extra-curricular activities etc. Respondent is, therefore, bound to bear the expenses of maintenance of the Petitioner and their 2/20 WP-10699-17=.doc ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:30:10 ::: daughter. He is also having sound financial position, as he is employed in Allied Digital Service Private Limited, Mhape, Vashi, since August 2004 and his monthly income is not less than Rs.45,000/-. Additionally, he has huge investments and his total income therefrom is Rs.70,000/- per month. Further, he is having two flats in his name; one is in Mulund (West) and the other at Wagle Estate, Thane. His brother is also having one property at Kasarvadavli, Thane (West).
4. As against it, it was the contention of the Petitioner that, she has no source of income and totally depending on the Respondent to maintain herself and her daughter and, therefore, she claimed interim maintenance at the rate of Rs.30,000/- per month for herself and Rs.20,000/- per month for her daughter.
5. This application came to be resisted by the Respondent- husband denying all the adverse allegations made in the application and contending, inter alia, that, the Petitioner was already married to one Yogesh Pandey and she has not got the said marriage dissolved till date. She has filed Petition for divorce by mutual consent with Mr. Yogesh Pande bearing P.A. No.216 of 2014, which she has voluntarily withdrawn on the pretext that she has taken 3/20 WP-10699-17=.doc ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:30:10 ::: customary divorce on the stamp-paper and it is notarized. However, that is not a legal divorce and in such situation, she cannot be called as a legally wedded wife of the Respondent. Therefore, she cannot be entitled to get any amount of maintenance.
6. Further, it was submitted that, the Petitioner is a working woman. She was doing job with 'Uni Desine' at Andheri, Mumbai and at present also, she is working with 'Rediam Diamond Company' at Kopar-Khairane as 'Jewelery Designer' and getting salary of Rs.22,000/- per month. Therefore, she is able to maintain herself. As regards his own income, Respondent contended that, though he is working with 'Allied Digital Services Private Limited' since the year 2004, he is getting salary of Rs.13,844/- per month only. His salary- slip to that effect of November 2014 was also produced. He has denied about the additional income from the investments and also having the properties.
7. As to the maintenance to the daughter, Respondent has submitted that, he is ready to pay interim maintenance at the rate of Rs.2,500/- per month for the daughter and even ready to have her permanent custody also.
4/20 WP-10699-17=.doc ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:30:10 :::
8. On this application, the Family Court, vide its initial order dated 22nd April 2015, granted interim maintenance at the rate of Rs.2,500/- per month to the daughter, considering her school expenses; however, denied interim maintenance to the Petitioner- wife on the count that, she has obtained Rs.1,00,000/- towards full and final settlement by way of permanent alimony from her ex- husband. Moreover, she is a Graduate lady and said to be working. Her possession in the house of Respondent was also protected and, hence, it was held that, the issue of interim maintenance of the Petitioner-wife needs evidence and, therefore, it was kept with the main Petition for disposal on taking all the evidence on record.
9. Subsequent thereto, vide its impugned order dated 26 th May 2017, the Family Court has again considered the rival submissions advanced by both the parties and was pleased to hold that, the marriage of the Petitioner with Yogesh Pandey is yet not dissolved by the order of the Court. Her Petition for divorce by mutual consent with Yogesh Pandey is withdrawn and in such situation, though she has contended that she has obtained customary divorce from her earlier marriage, this contention needs to be considered and decided on merits and, therefore, at this stage, she will not be entitled to get 5/20 WP-10699-17=.doc ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:30:10 ::: any amount of interim maintenance, unless and until her status as a wife of Respondent is decided.
10. As regards the income of the Respondent in respect of payment of interim maintenance to the child is concerned, it was observed by the Family Court that, Form No.16 of his 'Income Tax Return' shows that, his gross-salary was Rs.1,79,376/- and having regard to the said income and the requirement of the child of seven years, the Family Court awarded the maintenance at the rate of Rs.5,000/- per month to the child from the date of the order, considering that, as per the earlier order, the amount of Rs.2,500/- per month was awarded as interim maintenance to the child.
11. This order of the Family Court is the subject matter of this Petition. Submission of learned counsel for the Petitioner is that, as on today, the Petition filed by the Respondent for getting the decree of nullity of marriage is still pending and, therefore, Petitioner cannot be deprived from the award of interim maintenance during pendency of such Petition.
12. To substantiate his submission, learned counsel for the Petitioner has relied upon the Judgment of our own High Court in 6/20 WP-10699-17=.doc ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:30:10 ::: the case of Sushila Viresh Chhadva Vs. Viresh Nagshi Chhadva, 1996 (1) Mh.L.J. 288, wherein the very same issue was raised for consideration before this Court, because the husband has filed Petition in the Family Court under Hindu Marriage Act for decree of nullity of marriage. During pendency of that Petition, the Respondent-wife has filed an application seeking interim alimony and expenses of the litigation, under Section 24 of the Hindu Marriage Act. The Petitioner-husband opposed the said application on the ground that the marriage itself was void. The Family Court has, hence, rejected the application of the wife on the ground that, as the Petition was for nullity of marriage, interim relief could not be granted without going into the merits of the case. When the said order was challenged before this Court, it was held as follows :-
"That the Family Court had proceeded on an erroneous assumption that the wife was not entitled to interim alimony because the husband had sued for nullity of marriage. The right of a wife for maintenance is an incident of the status or estate of matrimony. Section 24 of the Hindu marriage Act, which provides for maintenance pendente lite and expenses of proceedings, clearly applies to all proceedings under the Act. An order for maintenance pendente lite and costs of the proceedings can, as the initial words of the section clearly state, be made in any proceeding under the Act, 7/20 WP-10699-17=.doc ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:30:10 ::: viz. For restitution of conjugal rights, judicial separation, divorce or nullity of void and voidable marriage. When a fact of marriage is acknowledged or proved alimony follows subject of course to the discretion of the Court in the matter having regard to the means of the parties and it would be no answer to the claim for maintenance pendente lite that the marriage was void ipso jure or was voidable. The Family Court was not right in taking into consideration the allegation of fraud and deception made in the petition for the purpose of deciding the prayer of interim alimony. The fact that there is a strong possibility of the marriage being declared as a nullity is no ground for declining even the basic right to claim interim alimony and expenses of the litigation. The Trial Court cannot postpone its decision on the application for interim maintenance and costs till the disposal of the main issue in the substantive matter. The very purpose of an order under Section 24 would be frustrated if the matter of granting interim maintenance and of providing the requisite expenses for the conduct of the proceedings itself is deferred till the final stage of the proceeding. The direction for interim alimony and expenses of litigation under Section 24 is one of urgency and it must be decided as soon as it is raised and then only the other matters in controversy can be gone into. The object of section 24 is to provide a monthly income and expenses of the litigation to an indigent spouse to enable to prosecute or defend the proceeding under the Act and the law sees that nobody is disabled from prosecuting or defending the matrimonial case by starvation or lack of funds."8/20
WP-10699-17=.doc ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:30:10 :::
13. As against it, learned counsel for the Respondent has relied upon the Judgment of the Apex Court in the case of Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav & Anr., AIR 1988 SC 644, to submit that, only a legally wedded wife can be entitled to get maintenance and not the one whose marriage is not legal and valid.
14. Further, he has also relied upon the Judgment of the Andhra Pradesh High Court in the case of Nagireddy Sai Kumari Vs. Nagireddi Vara Nageswara Rao and Anr., 2008 (1) ALD (Cri.) 747 (AP), wherein the application for maintenance was filed under Section 125 of Cr.P.C. and as it was pointed out that wife has yet not obtained divorce from her first husband, it was held that, in view of Section 5(1) of Hindu Marriage Act, her marriage becomes null and void and, therefore, she cannot be considered as legally wedded wife; hence, not entitled to get maintenance under Section 125 of Cr.P.C.
15. Learned counsel for the Petitioner has then relied upon the Judgment of Punjab and Haryana High Court in the case of Karampal Singh Vs. Amarjit Kaur, 2008 SCC OnLine P&H 1036 , wherein also, the Petition for seeking declaration of marriage to be void and, in alternate, decree for divorce, was filed by the husband 9/20 WP-10699-17=.doc ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:30:10 ::: and in that Petition, the Respondent-wife has moved an application under Section 24 of the Hindu Marriage Act. The contention raised by the husband was that she was already married before getting married to the Petitioner and, therefore, marriage was null and void. Therefore, she could not be treated to be wife for seeking maintenance under Section 24 of the Hindu Marriage Act. To substantiate this contention, the reliance was placed by the husband on the Judgment of the Supreme Court in the case of Yamunabai Anantrao Adhav (Supra) referred above. However, this contention was rejected by the Punjab and Haryana High Court by holding that, in the Judgment of Yamunabai Anantrao Adhav (Supra), while considering the provisions of Section 125 of Cr.P.C., the Apex Court has come to the conclusion that the grant of maintenance cannot be altogether excluded from consideration even if the marriage is not proved. It was held by the Punjab and Haryana High Court that, as the husband has moved an application under Sections 11 and 12, r/w. Section 13, of the Hindu Marriage Act, seeking divorce from the Respondent-wife, whether the marriage is illegal or void is yet to be decided. The provisions of Section 24 of the Hindu Marriage Act envisages maintenance of pendente lite during pendency of the Petition under the Act and, therefore, no distinction can be drawn 10/20 WP-10699-17=.doc ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:30:10 ::: whether the marriage is legal or illegal, as it is yet to be decided after the parties are allowed to lead evidence.
16. If one has regard to the decision of this Court in the case of Sushila Viresh Chhadva (Supra) and the decision of the Punjab and Haryana High Court in the case of Karampal Singh (Supra), the legal principle, which can be deduced, is that, during pendency of the Petition for declaration of nullity of marriage, the interim maintenance under Section 24 of the Hindu Marriage Act cannot be denied to the wife, as the issue of legality or illegality of the marriage is yet to be decided. That issue will be decided only after the parties lead their evidence and at that stage only, one can consider whether the previous marriage of the Petitioner with one Yogesh Pandey was in subsistence in law, when she married with the Respondent. During pendency of that issue, this Court cannot deny the Petitioner the interim maintenance, having regard to the legal position enumerated above.
17. The next contention advanced by learned counsel for the Respondent to deny the Petitioner's claim for interim maintenance is that, she was working earlier also and she is an able-bodied 11/20 WP-10699-17=.doc ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:30:10 ::: person, capable of earning the income. It is stated that, in reply to the application for interim maintenance, the Respondent has categorically stated that the Petitioner is working in the 'Rediam Diamond Company' as 'Jewelery Designer' at Kopar-Khairane and getting salary of Rs.22,000/- per month. It is urged that, this fact stated in the say to the application for interim maintenance, is not at all denied by the Petitioner by filing any rejoinder and, therefore, when she is herself earning and that too as a 'skilled worker', as she was working as 'Jewellery Designer', she cannot be entitled to get any interim maintenance.
18. To substantiate this submission, the learned counsel for the Respondent has relied upon the Judgment of Madhya Pradesh High Court in the case of Mamta Jaiswal Vs. Rajesh Jaiswal, 2000 DGLS (M.P.) 181, wherein the question raised for consideration before the Madhya Pradesh High Court was whether, a wife was educated and in the year 1994, was earning salary of Rs.4,000/- per month, can be entitled to the expenses of the attendant, who accompany her to the Court on every date when she is required to attend Court. In that backdrop, it was held that, as she is an educated lady, she cannot be entitled to such expenses to cover the travelling charges of some attendant, as she can attend the Court alone. No doubt, in the said 12/20 WP-10699-17=.doc ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:30:10 ::: Judgment, some observations are made relating to the entitlement of an educated lady to get the interim maintenance, but the Judgment shows that the interim maintenance awarded by the Trial Court in that case was not at all disturbed, but husband was directed to deposit the said amount of interim maintenance in the Court. Therefore, the real issue for consideration before the High Court in the said decision was, 'whether the husband should be made liable to pay travelling charges of the attendant, in order to enable the educated wife to come to the Court?' The observations made therein, hence, are required to be understood in the light of the question raised before it; otherwise, the High Court would not have confirmed the order of interim maintenance passed in the said proceedings by the Trial Court.
19. As against it, there is recent Judgment of the Supreme Court in the case of Manish Jain Vs. Akanksha Jain, CDJ 2017 SC 352, wherein the Supreme Court has held that, it is not necessarily the earing capacity of the wife, which is required to be taken into consideration, but whether she has any permanent source of income. Only when it is shown that she is having some continuous source of income, she can be deprived of her right to get interim 13/20 WP-10699-17=.doc ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:30:10 ::: maintenance. For the time being, if she is constrained to work intermittently and to maintain herself and child and, therefore, getting some income, that will not be sufficient to dis-entitle her from getting the amount of interim maintenance.
20. In the instant case, the Petitioner herein has admitted that earlier she was working and she was compelled to work even after the birth of her daughter, though she did not want to do so. These are the averments in her reply to the Petition. According to her, since the time she has to reside separately from the Respondent- husband, she is not able to do the work and she is not working, as she has to take care of her daughter also.
21. Though Respondent contends that the Petitioner is still doing the work with 'Rediam Diamond Company' at Kopar-Khairane, no documentary evidence is produced on record to that effect; either her salary certificate or even the certificate from 'Rediam Diamond Company' or her 'Income Tax Return' to prove that, even at present, she is working and having some continuous source of income. When, in her application, she has categorically stated that she is not working at present, merely because she has not filed the rejoinder, 14/20 WP-10699-17=.doc ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:30:10 ::: in the absence of any documentary evidence produced on record by the husband, it cannot be assumed or accepted as gospel truth that she is still working and hence dis-entitled to get the amount of maintenance. It is pertinent to note that, in paragraph No.21 of her application, she has stated that, she is now jobless and has no source of her own income. Therefore, on the face of these averments, it was necessary to have some evidence on record to that effect to deny her claim for interim maintenance.
22. In this respect, it is worthwhile to note that the Family Court has not at all adverted to this aspect, 'whether she is able to maintain herself or not'. The entire order of the Family Court is conspicuously silent as to whether it is proved that the Petitioner is having her own source of income, which can dis-entitle her from getting the amount of interim maintenance. Therefore, it follows that, when there is nothing on record to show that the Petitioner has her own source of income and when she has stated that she is now jobless and having no source of income, it has to be held that, she becomes entitled to get interim amount of maintenance; especially, having regard to the fact that she is having now liability to look after her small school going daughter of seven years and, therefore, one 15/20 WP-10699-17=.doc ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:30:10 ::: can safely say that, without some documentary evidence produced on record proving her job with 'Rediam Diamond Company' or any other Company, it cannot be presumed that she is still working.
23. As regards the income of the Respondent, he has produced on record Form No.16 of the Income Tax Return of the Assessment Year 2009-10. The perusal of Form No.16, no doubt, it shows that his gross-salary was Rs.1,79,376/-, however, the Family Court has held that, his total income was Rs.1,67,303/-. If his gross-salary was Rs.1,79,376/-, then, how the total income can be lesser to that to the tune of Rs.1,67,303/-? In this respect, learned counsel for the Petitioner has produced on record the "26-AS" details of the Income Tax Returns filed by the Respondent, which show that, for the year 2008-09, his total income was Rs.4,59,189/-.
24. It is submitted by learned counsel for the Respondent that, from the documents produced by the Petitioner herself, it can be seen that the income of the Respondent, as shown in "26-AS" details for the subsequent year 2010-11 is only Rs.1,40,624/-. It has to be noted that, the Court cannot close its eyes to the reality, as it is often noticed these days that the moment the litigation starts, every attempt is made by the husbands not to disclose their real income. 16/20 WP-10699-17=.doc ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:30:10 ::: Thus, there is much substance in the contention raised by the Petitioner that Respondent is not disclosing his real income and every attempt is made to conceal the same, so as to avoid the liability of payment of maintenance. Considering the fact that the Respondent is working since the year 2004 in 'Allied Digital Services Private Limited', it has to be held that, he must be earning a substantial sum as salary and not Rs.13,000/- and odd, as stated by him.
25. Respondent is also having his own home for his residence. The liability of daughter, he has to take up. As regards the interim maintenance of Rs.5,000/- per month, the Respondent, being the father of the child, has to bear the same and, therefore, the interim maintenance awarded to the child at the rate of Rs.5,000/- per month, cannot be called, in any way, as exorbitant or unreasonable and as regards the Petitioner-wife, the Respondent is also liable to pay maintenance to her during pendency of this Petition.
26. As to the contention that Petitioner has received the amount of Rs.1,00,000/- from her previous husband Yogesh Pandey towards full and final settlement of right of maintenance and alimony, it has to be held that, the said amount or her entitlement against her first 17/20 WP-10699-17=.doc ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:30:10 ::: husband cannot be confused or mixed up with her entitlement against the present husband - the Respondent. It must be noted that, the marriage of the Petitioner and Respondent had taken place in the year 2009 and for all these years upto 2014, they have resided together. They are also having one daughter born out of the wed-lock and, therefore, Respondent just cannot mix up his liability of providing interim maintenance to the Petitioner with whatever the lump-sum amount she might have received from her first husband. The impugned order passed by the Family Court shows that, the Family Court has not considered this aspect also and, simplicitor, on the count that issue of marriage is yet to be decided, rejected her application for interim maintenance; whereas the law and legal position discussed above expects that till such issue is decided, her right to interim maintenance cannot be denied.
27. Therefore, the impugned order passed by the Family Court needs interference as regards the rejection of the claim of the Petitioner-wife for interim maintenance. Considering the income of the Respondent and the life-style of both of them, having also regard to the prices of essential commodities etc., it would be just and reasonable to award the amount of Rs.5,000/- per month to the 18/20 WP-10699-17=.doc ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:30:10 ::: Petitioner towards her interim maintenance from the date of the application. Hence, the order.
" O R D E R "
(i) The Writ Petition is allowed. The impugned order passed by the Family Court rejecting Petitioner's claim for interim maintenance is set aside. Respondent is directed to pay the amount of Rs.5,000/- per month to the Petitioner-wife towards her interim maintenance from the date of the application.
(ii) As regards the daughter's maintenance amount of Rs.5,000/- per month, as awarded by the Family Court to the daughter also, it has to be from the date of the application and not from the date of the order; especially when the ad-hoc amount awarded towards her maintenance was only Rs.2,500/- per month.
Therefore, it is clarified and it is held that the Petitioner's daughter is entitled to get the 19/20 WP-10699-17=.doc ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:30:10 ::: maintenance at the rate of Rs.5,000/- per month from the date of the application filed before the Family Court.
28. Writ Petition is disposed off in the above terms.
29. Rule is made absolute in the above terms.
[DR. SHALINI PHANSALKAR-JOSHI, J.] 20/20 WP-10699-17=.doc ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:30:10 :::