Gujarat High Court
Meenaxi Shripad Katakkar vs Shripad Yashwant Katakkar on 26 August, 2020
Equivalent citations: AIRONLINE 2020 GUJ 1207
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/19107/2018 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO.19107 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV Sd/-
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1 Whether Reporters of Local Papers may be allowed to see the No
judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as to No
the interpretation of the Constitution of India or any order made
thereunder ?
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MEENAXI SHRIPAD KATAKKAR
Versus
SHRIPAD YASHWANT KATAKKAR
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Appearance:
MS NITA PANDIT, ADVOCATE for MR ADITYA A GUPTA(7875) for the
Petitioner(s) No. 1
MOHIT A GUPTA(8967) for the Petitioner(s) No. 1
MR AR GUPTA(1262) for the Petitioner(s) No. 1
MR SUNIT SHAH, ADVOCATE for MR VASIM MANSURI(8824) for the
Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 26/08/2020
CAV JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr.Mansuri waives service of notice of rule for the respondent. With the consent of the learned advocates appearing for the respective parties, the matter was taken up for final hearing on 17.8.2020.
Page 1 of 19 Downloaded on : Thu Aug 27 06:24:26 IST 2020 C/SCA/19107/2018 CAV JUDGMENT2. The petitioner - wife of the respondent has filed this petition under Article 226 of the Constitution of India, challenging the order dated 10.7.2018 passed by the Family Court at Ahmedabad. By the order dated 10.7.2018 passed below Exh.5, the Family Court has rejected the application of the petitioner for getting interim maintenance u/s.24 of the Hindu Marriage Act, 1955 (hereinafter referred to as `the Act').
3. The facts in brief are as under:
* An application u/s.24 of the Act was filed by the petitioner on 12.5.2016. It was the case of the petitioner that that the petitioner and the respondent had entered into a wedlock on 14.10.1984. Out of the marriage, a son named Rahul was born on 27.6.1985 and daughter Mukta on 29.4.1989. The daughter died in the year 2003.
* The case of the petitioner before the Family Court was that, after 2011 the marriage ran into rough weather as a result of an allegation that the son Rahul was not born out of their wedlock and that a DNA Test was carried out surreptitiously. This caused the petitioner to leave the Page 2 of 19 Downloaded on : Thu Aug 27 06:24:26 IST 2020 C/SCA/19107/2018 CAV JUDGMENT matrimonial home on 19.5.2012. A Hindu Marriage Petition was filed by the respondent in the year 2012 being Application No. 815 of 2012 seeking divorce from the petitioner on the ground that the son Rahul was born 256 days after the wedlock and therefore was not the child out of their marriage, that the respondent therein i.e. the petitioner mentally harassed the husband and therefore divorce was sought. It is undisputed between the parties that even an application for restitution of conjugal rights was filed being Application No.914 of 2016.
* The case of the petitioner was that though she was working in a private company, as stated in the application, looking to her age now i.e. 53 years, she was not in a position to maintain herself due to the advancing age and therefore needed maintenance to sustain herself.
* The application was opposed by the respondent husband on the ground that the petitioner was working with Vadilal Sarabhai Enterprises. In the year 2011, she was promoted as an Executive drawing a salary of Rs.12,000/- and, therefore, she was not entitled to claim maintenance of Rs.51,000/- as claimed.
Page 3 of 19 Downloaded on : Thu Aug 27 06:24:26 IST 2020 C/SCA/19107/2018 CAV JUDGMENT* The learned Judge, Family Court, after examining the evidence on record came to the conclusion that though it was the case of the petitioner that the respondent was a Manager and drawing a salary of Rs.90,000/-, on the basis of the documentary evidence produced at Exh.22 wherein he had showed that the petitioner was drawing a salary of Rs.12,000/- the learned Judge observed that it is an accepted and an admitted fact that the petitioner was working in a private institution and is also entitled to pension and provident fund. The learned Judge further observed that she was residing with her son Rahul who was a chartered accountant having handsome income and, therefore, was living in comfort with the son and, therefore holding that the petitioner was a working woman having independent income presumption was drawn that the petitioner was drawing atleast Rs.17,000/- after a lapse of 3 years from the date of divorce petition, the application was rejected.
4. Ms.Nita Pandit, learned advocate has appeared on behalf of Mr.A.R. Gupta, learned advocate for the petitioner and made the following submissions:
* Ms.Pandit would submit that the order denying maintenance in total is bad. She would Page 4 of 19 Downloaded on : Thu Aug 27 06:24:26 IST 2020 C/SCA/19107/2018 CAV JUDGMENT submit, reading Sec.24 of the Act would indicate that not only is the income of the applicant to be taken into consideration but also the income of the respondent. In the present case, she would submit that it was undisputed that the respondent husband was working as a Manager in the State Bank of India drawing Rs.90,000/- per month.
* She would further submit that he had sold a bungalow at Bopal and even if the petitioner had now retired in 2019, he was drawing pension and it is presumed that several terminal benefits as a bank employee would have been made available to the respondent.
* She would further submit that though several judgments were cited before the learned Judge, Family Court, they were just brushed aside and not considered.
* Ms.Pandit invited the attention of the Court to the additional affidavit filed by the petitioner before this Court to submit that initially though the private company i.e. Vadilal Sarabhai Enterprises had thought of preliminary extension, however, the extension was not given to her though promised and she was though due to Page 5 of 19 Downloaded on : Thu Aug 27 06:24:26 IST 2020 C/SCA/19107/2018 CAV JUDGMENT retire on 7-7-2020 and the extension was so promised but the same was not given and by a letter dated 22.7.2020, the management revoked the extension and retired her from service. She also drew the attention of the Court to the fact that the post employment terminal benefits of Rs.1,500/- to Rs.2,000/- will be available to the petitioner after a period of 2-3 months. As far as the income of the son who is a chartered accountant is concerned, she would submit that due to the pandemic, the son has lost his job at Mumbai, shifted to Ahmedabad and he has a family including himself, 4 in number to maintain, and, therefore, to deny maintenance amount completely on a presumption of Rs.17,000/- as the income without evidence and without respondent coming forth before the Court and to filing an affidavit, what was the exact income, the Court should not have rejected the application.
* Ms.Pandit relied on the following decisions of the Delhi High Court and the Gujarat High Court:
(a) Shri Sonu v. Premlata reported in 2016(SCC) Online, Delhi, 5111
(b) Simaben Maheshbhai Soni v. State of Page 6 of 19 Downloaded on : Thu Aug 27 06:24:26 IST 2020 C/SCA/19107/2018 CAV JUDGMENT Gujarat in Criminal Misc. Application (For Stay) No.18957/2015.
(c) Maheshbhai Vamanbhai Baviskar v.
State of Gujarat dated 17.10.2016 in Criminal Revision Application (For Maintenance) No.517 of 2016.
* She would further submit that from the matrimonial advertisement that the respondent has given in 'simplymarry.com', it is evident that he has projected as the marriage is annulled and also shown that his annual income is about Rs.10,00,000/- to Rs.15,00,000/-.
5. Mr.Sunit Shah, learned counsel has appeared with Mr.Vasim Mansuri, learned advocate for the respondents. He made the following submissions:
* Mr.Shah submitted that the pleadings in the application particularly para Nos.2, 6 and 11 would indicate that the application was misconceived. Knowing fully that Rahul was not a son born out of the wedlock, she has feigned ignorance in her application for maintenance. Whereas, an absolutely a contrary stand has been taken in the reply to the divorce petition filed by the petitioner. Mr.Shah would invite the Court's Page 7 of 19 Downloaded on : Thu Aug 27 06:24:26 IST 2020 C/SCA/19107/2018 CAV JUDGMENT attention to the paper book and the replies filed before the Court therein and indicate that the statement there was made that the husband was aware of the son being conceived before the marriage with the respondent. The conduct of the petitioner in having an illegitimate child not born out of the wedlock which was confirmed by the DNA report would indicate that she did not deserve any maintenance.
* Mr.Shah further submits that though the divorce petition is filed in the year 2012, the application for maintenance u/s.24 is filed four years thereafter on 12.5.2016. She did not claim maintenance for four years. The conduct does not befit the Court to grant any discretion in favour of the petitioner on two grounds, namely that; (a) she filed a petition for restitution of conjugal rights in the year 2016 and (b) the present maintenance application, purely with a view to stall the divorce proceedings for which issues were framed in July, 2016.
* Mr.Shah would submit that her conduct is evident from the Rojkam also, where from the Rojkam it is evident that she sought adjournments for 36 times and did not appear before the Court which indicates that she is really Page 8 of 19 Downloaded on : Thu Aug 27 06:24:26 IST 2020 C/SCA/19107/2018 CAV JUDGMENT in no need of maintenance.
* Mr.Shah would submit that the stand of the petitioner would indicate that initially she made a statement that she is retiring and, therefore would need money. Again then, she makes an affidavit saying that she would get an extension which now suddenly is a stand which turned to state that her extension is revoked and therefore she would be without any maintenance or money.
* Mr.Shah invited the attention of the Court to the sale deed of April, 2014 in the name of the petitioner and indicate that she was an owner of a flat and a health card was issued in her favour. The claim for maintenance of Rs.51,000/- was totally misconceived under the heads that they were claimed and the trial Court therefore had rightly presumed that if the petitioner was earning Rs.12,000/- per month in the year 2011 or 2012, with the passage of time, her income would have gone up of Rs.17,000/- per month.
* Mr.Shah has invited the attention of this Court to the judgment of Delhi High Court in the case of Kusum Sharma v. Mahinder Kumar Sharma reported in 2006 (132) DLT 7 and extensively pointed out that the guidelines have Page 9 of 19 Downloaded on : Thu Aug 27 06:24:26 IST 2020 C/SCA/19107/2018 CAV JUDGMENT been framed and ought to have been framed in the present case also to suggest that maintenance applications are disposed off in a stipulated time limit. He would submit that burden of proving income as discussed in the judgment is entirely with the one who alleges, in the present case, the petitioner. She, according to Mr.Shah failed to discharge that burden. He would submit that truth being a guiding star in the entire judicial process and coupled with the conduct of the petitioner would suggest that she was not deserving any maintenance particularly when her son Rahul was a chartered accountant and he also invited the attention that in absence of any details of the income, the trial Court had come to a correct conclusion.
* Mr.Shah has also invited the attention of this Court to the decision of Bombay High Court in the case of Mahendrakumar v. Gulabbai and others reported in 2001 Cri.L.J., 2111 where the argument of the learned counsel that the son has the pious obligation of maintaining the parents and, therefore here too, once the son was a chartered accountant, he ought to maintain the petitioner.
6. Having considered the facts and having set out Page 10 of 19 Downloaded on : Thu Aug 27 06:24:26 IST 2020 C/SCA/19107/2018 CAV JUDGMENT the submissions of learned counsels for the respective parties, what is evident from the pleadings and the affidavits that have been filed before this Court is as under:
* The marriage was entered in the year 1984. On the basis of allegations of son Rahul being born within 265 days of the marriage, on a DNA test carried out, it was found that the paternity of the son was not that of the respondent.
* These circumstances probably soured the marriage and, therefore, the respondent filed a petition for divorce in the year 2012.
* When the petition of divorce was filed, no application for maintenance was moved. Four years, thereafter, in the year 2016, the applicant / petitioner moved an application for maintenance.
* Taking an overview of the application, what is suggested on reading the application is that she has stated that though she is working in a private institution, the age is a problem. The allegations made in the divorce petition have mentally disturbed her which has added to her miseries and she is suffering from various diseases. She apprehended that there is a likelihood of her Page 11 of 19 Downloaded on : Thu Aug 27 06:24:26 IST 2020 C/SCA/19107/2018 CAV JUDGMENT being removed from the job and, therefore, she would need some maintenance amount to maintain herself as per the status and standard of her husband.
* A specific pleading was made in the application that the respondent was working as a Manager (System) with the State Bank of India with the salary of Rs.90,000/- per month. This statement of fact was not denied by the respondent. The concentration of the respondent in fighting the application for maintenance was only the conduct of the petitioner inasmuch as the application for maintenance was delayed and that her character was doubtful in view of the son having born not out of the wedlock.
7. What needs to be appreciated is that all these allegations are the root cause of the divorce petition filed by the respondent vis-a-vis the petitioner. The question is whether pending the petition of divorce is the wife entitled to maintenance.
7.1 Sec.24 of the Act, on reading of which indicates that where in any proceedings under the Act, it appears to the Court that either the wife or the husband, as the case Page 12 of 19 Downloaded on : Thu Aug 27 06:24:26 IST 2020 C/SCA/19107/2018 CAV JUDGMENT may be, has no independent income sufficient for her or his support and the necessary expenses, it may be on an application be ordered to be paid. While doing so, what the section indicates that there must be a regard to the petitioner's own income and the income of the respondent. A reasonable sum must be awarded based on the assessment income of the respective parties. This is the spirit of the section.
7.2 Even when we refer to the decision of Kusum Sharma (Supra), which Mr. Shah, learned advocate for the respondent has pressed into service, the Court by a separate heading has discussed the basis of the claim of maintenance. In such discussion, the Delhi High Court has referred to the judgment in the case of Radhika v. Vinit Rungta reported in 2004 (110 DLT), 111. Referring to the decision therein, the Court has observed that there are cases rare where the parties actually disclosed their income correctly. It is in these circumstances that it is incumbent on the Court to make such monetary arrangements as would be conducive to the spouses continuing a life Page 13 of 19 Downloaded on : Thu Aug 27 06:24:26 IST 2020 C/SCA/19107/2018 CAV JUDGMENT style to which they are accustomed before the matrimonial discord. The Court even while discussing various judgments has considered that while deciding the application for maintenance, the Court must call for detailed affidavits and details of income and assets including fixed deposits from both the sides because the Court may have some reservations about the proposition expressed by the wife or the husband who makes an application for maintenance. It is under these circumstances that the Court observed that it is necessary for the maintenance Court to call for details of incomes, expenses and assets from both the parties by way of affidavits.
8. From the limited evidence that was produced before the trial Court in the present case, the trial Court came to the conclusion on the basis of petitioner's engagement with the Vadilal Enterprises that since she was earning Rs.12,000/- per month in the year 2011, the presumption would be that now the salary would be Rs.17,000/- per month and, therefore, no maintenance be awarded. With greatest respect to the learned Judge, the presumption was totally Page 14 of 19 Downloaded on : Thu Aug 27 06:24:26 IST 2020 C/SCA/19107/2018 CAV JUDGMENT misconceived in absence of necessary documents. There is no basis of arriving at a conclusion of the figure of Rs.17,000/-. This is particularly when a specific pleading was made that the respondent husband was engaged with the State Bank of India drawing a salary of Rs.90,000/-. This fact was not denied by the respondent.
* Even during the course of extensive affidavits filed by both the parties in the present proceedings, what has now come on record is that though the petitioner expected that she would be engaged and continued with the private employment, her extension after retirement is revoked. She would get a pensionary amount of Rs.1,500/-. That even the respondent has retired on 30.9.2019 and a statement is produced from the Bank to suggest that the petitioner is drawing a pension of Rs.37,745/-. There is no denial to an allegation made that the respondent owned a bungalow at Bopal and that it has been sold and the proceeds have been appropriated. The respondent neither also has produced any details of what terminal benefits did he receive after having served the Bank assuming that the respondent's salary was not even Rs.90,000/- but taking it as much less than what it was. No details of PF, Gratuity whatever the receipts the Page 15 of 19 Downloaded on : Thu Aug 27 06:24:26 IST 2020 C/SCA/19107/2018 CAV JUDGMENT respondent got from the Bank are on record.
* Admittedly, the marriage has not sustained. The lady has retired. The argument of Mr.Shah that the son should maintain in context to the decision of Bombay High Court in the case of Mahedrakumar (Supra) was in context of the duty of the son to maintain his parents. That stricto senso or strictly may not apply in the facts of the case when the wife has come forth to seek maintenance from her husband. Section 24 of the Act makes it incumbent that the trial Court not only should see the income of the person who approaches the Court but also must take into consideration the income of the respondent. Even if an estranged wife is earning, she can make a claim for maintenance if her income is not sufficient to sustain her. Various Acts also ensure that the woman can demand maintenance even if she is separated and not divorced. Maintenance of wife for her sustenance does not mean simple existence but signifies leading life in a similar manner as she would have lived in the house of her husband. Husband is duty bound to enable his wife to live life with dignity according to their social status and strata.
9. Having therefore examined the merits of the case Page 16 of 19 Downloaded on : Thu Aug 27 06:24:26 IST 2020 C/SCA/19107/2018 CAV JUDGMENT and conscious of the fact that there is limited evidence that this Court can go into in exercise of the powers under Article 227 of the Constitution of India and though while relegating the petitioner to the trial Court, having found that the trial Court committed an error by presuming a figure of Rs.17,000/- as the income that the petitioner would have drawn in absence of any documents, the finding is absolutely incorrect.
10. Looking to the fact that the respondent is retired and draws pension of Rs.37,000/-, the petitioner has also retired and is now in advanced age, the matter requires a fresh look at the hands of the trial Court. Neither the petitioner nor the respondents have exchanged any affidavits on the allegations of financial resources. As considered by the decision in the case of Kusum Sharma (Supra), the maintenance ought to be arrived at a justiciable figure on the basis of evidence by way of Income Tax Returns or details of assets that may be produced by the either parties.
11. It is in this context though the petitioner filed an application for maintenance in the year 2016, 4 years after the petition of divorce was filed, and keeping in view the spirit of section 24 of the Act even while exercising powers under Article 227 of Page 17 of 19 Downloaded on : Thu Aug 27 06:24:26 IST 2020 C/SCA/19107/2018 CAV JUDGMENT the Constitution of India, interest of justice should be served by at least awarding some maintenance to the petitioner while sending her back to the trial Court for reexamining the issue by inviting detailed evidence from the respective parties of their financial status.
12. Accordingly, the order dated 10.7.2018 is quashed and set aside. The respondent, pending reconsideration of the entire matter before the trial Court - Family Court is directed to pay Rs.15,000/- every month to the petitioner. The amount of Rs.15,000/- shall be computed as payable to the petitioner from the date of filing of the petition before this Court i.e. 7.12.2018. The respondent is therefore directed to pay to the petitioner arrears from the date of filing of this petition as per the Registry being 7.12.2018 till 15.8.2020, calculated at Rs.15,000/- per month within a period of four weeks from today. On the arrears being paid for two years @ Rs.15,000/- per month and continuing to pay such amount during the pendency of the reconsideration of the application before the trial Court, the trial Court shall rehear the matter and reassess the maintenance amount without being influenced by the observations and the amount awarded by this Court on the basis of financial statements filed by Page 18 of 19 Downloaded on : Thu Aug 27 06:24:26 IST 2020 C/SCA/19107/2018 CAV JUDGMENT the respective parties. It is also clarified that the remand of the matter does not absolve the petitioner from paying the arrears as so held by this Court and continuing to pay an amount of Rs.15,000/- per month during the pendency of the application being reconsidered.
13. Having quashed the order dated 10.7.2018, the Family Court, Ahmedabad is requested to rehear and decide the application for maintenance within a period of two months from the date of the receipt of copy of this order. It is once again clarified that it is open for the trial Court to quantify the amount of maintenance after taking into account the affidavits produced without being influenced by the interim amount awarded by this Court. The petition is allowed with no order as to costs. Rule is made absolute to the aforesaid extent.
Sd/-
[ BIREN VAISHNAV, J. ] *** VATSAL / KOSHTI Page 19 of 19 Downloaded on : Thu Aug 27 06:24:26 IST 2020