Gujarat High Court
Hetal Rajendrabhai Desai Wife Of Aman ... vs Aman Girdhanlal Mehta....Opponent(S) on 9 October, 2013
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/CRA/290/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL REVISION APPLICATION NO. 290 of 2013
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HETAL RAJENDRABHAI DESAI WIFE OF AMAN GIRDHARLAL
MEHTA....Applicant(s)
Versus
AMAN GIRDHANLAL MEHTA....Opponent(s)
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Appearance:
MS MANISHA LAVKUMAR, ADVOCATE for the Applicant(s) No. 1
MR SS BELSARE, ADVOCATE for the Opponent(s) No. 1
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
Date : 09/10/2013
ORAL ORDER
1. Heard Ms. Manisha Lavkumar, learned advocate for the applicant-wife and Mr. S.S. Belsare, learned advocate for the respondent-husband, who is appearing on caveat.
2. It is submitted by the learned counsel for the applicant that by the impugned order the application of the applicant for grant of interim maintenance under Section 24 of the Hindu Marriage Act, 1955, has been rejected and not a single Rupee has been awarded Page 1 of 8 C/CRA/290/2013 ORDER to the applicant as interim maintenance, even though there is no material on record to suggest that the applicant is earning and has an independent income. It is further submitted that, it is not disputed by the respondent-husband that he is the Vice President of the Kotak Mahindra Bank. He is earning an annual salary of Rs.20,00,000/- over and above other perquisites such as, petrol allowance, annual bonus, medical allowance, TA/DA and LTC which also includes his mother. The respondent has three immovable properties including a bungalow at Gulbai Tekra, Panchvati and another bungalow at Thaltej and a farm house at Sanand, where the mother of the respondent resides. In spite of the same, he has declined to pay any maintenance to the applicant but is insisting upon proceeding with the application for restitution of conjugal rights filed by him.
2.1 It is submitted that the applicant is living with her father and has no independent income to maintain herself. Before her marriage, she was working as a LIC Agent but has given up the said work in the year 2004 two years before her marriage took place with the respondent, in the year 2006. At the stage Page 2 of 8 C/CRA/290/2013 ORDER when the final arguments were taking place before the Family Court, the respondent produced certain documents pertaining to Income-tax refunds received by the applicant pertaining to her work as LIC Agent before her marriage. Some amount of commissions on Premiums paid by policy holders is given to the applicant but as it pertains to past premiums, it cannot be said to constitute a fixed income. Even these amounts are paltry ones. Without giving the applicant an opportunity to rebut the documents produced by the respondent, the Family Court has proceeded to pass the impugned order, stating therein, that the applicant has a Pan Card and pays Income Tax. It has been assumed that as she has received Income-Tax refunds from the year 2007-08 to 2012-13, she has the capacity to earn but has not disclosed her income which was her duty. It is further submitted that had an opportunity been granted to the applicant, she could have proved that she has no independent income and the Income-Tax refunds pertain to a period when she was working as an LIC Agent before her marriage. In any case, the refunds are of nominal amount and even those amounts are not disclosed in the said documents.
Page 3 of 8 C/CRA/290/2013 ORDER 2.3 That the Family Court has drawn an adverse inference that the applicant has not declared her income, ignoring the fact that the applicant has specifically stated that she is not earning. At the same time, the same Court has failed to draw an adverse inference insofar as the respondent is concerned. The respondent has not disclosed his income before the Family Court, at all. The efforts of the applicant to find out the details of the respondent's income through the Right to Information Act did not prove fruitful, as Kotak Mahindra Bank, where the respondent is serving, has refused to provide the details of the respondent's income on the ground that they are confidential.
2.4 Lastly, it is submitted that only an amount of Rs.15,000/- towards expenses and a paltry amount of Rs.300/- towards lodging expenses, per adjournment, when the applicant attends the court, has been granted by the Family Court. The impugned order of the Family Court is, therefore, unjust and illegal, having been passed without taking into consideration the spirit of the provisions of law under Section 24 of the Hindu Page 4 of 8 C/CRA/290/2013 ORDER Marriage Act,1955, which provide for interim maintenance where the spouse has no independent income.
2.5 In support of the above submissions, reliance has been placed by the learned advocate for the applicant on the following judgments:
(a) Neeta Rakesh Jain v. Rakesh Jeetmal Jain, (2010) 12 SCC 242
(b) Milan Dayarambhai Thakkar v. Niti Pravinbhai Buddhdev, 2007(2) GLR 981
(c) Khanabhai Kasnabhai Parmar v. Beenaben, 2009(4) GLR 3022
(d) Rakesh Amarsinh Damir v. Bharti Rakesh Damir, 2012(1) GCD 266
(e) Chetan Shantilal Doshi v.Urvashi Chetan Doshi, 2003(2) GCD (UJ) 57
(f) Usha Suwalka v. Bhansilal Suwalka, 2011(1) GCD 173
(g) Minesh Rajnikant Dalal v. Avani Minesh Dala, 2000(2) GLH 634
3. Mr.S.S.Belsare,learned advocate for the respondent-Caveator has submitted that a mis-statement has been made by the learned counsel for the applicant Page 5 of 8 C/CRA/290/2013 ORDER that the Tax Refunds status, produced by the respondent, was after the hearing. In fact, it was produced at the time of final arguments. It is further submitted that the contents of the documents produced have not been challenged by the applicant. These documents pertain to the years 2007-08 to 2012-13 and reveal that the applicant is earning till today. It is further submitted that the applicant is engaged in business activities with her father and has an independent income (It is accepted by the learned advocate for the respondent that this submission was not advanced before the Family Court). Since the applicant is earning a sufficient amount, she does not deserve maintenance. It is next submitted that the respondent has filed an application for restitution of conjugal rights whereas the applicant has filed an application of divorce. The respondent is ready to provide a separate house to the applicant till the final decision of the pending petition.
4. Having heard learned counsel for the respective parties and upon perusal of the impugned order, it prima facie appears that the learned Judge has totally ignored the aspect that the respondent has Page 6 of 8 C/CRA/290/2013 ORDER failed to disclose his income, even though it is not denied by him that he is holding the Post of Vice President in Kotak Mahindra and is availing of several perquisites, as stated by the applicant. In fact, the details of his income have been concealed. It further transpires from the order that the learned Judge has prima facie assumed, on the basis of the Income-Tax refunds that the applicant is earning an income, without granting an opportunity to her to explain the said documents that were, admittedly, produced at the time of final arguments. The applicant has not received even a single Rupee as interim maintenance from the Trial Court, on grounds that do not appear to be germane.
5. Having heard learned counsel for the respective parties and upon perusal of the impugned order this court is of the prima facie view that the interest of justice would be met by passing the following order:
Issue notice, for final disposal of the petition, returnable on 13-11-2013.
Mr.S.S.Belsare, learned advocate waives service Page 7 of 8 C/CRA/290/2013 ORDER of notice for the respondent.
By way of interim relief, it is directed that the respondent shall pay an amount of Rs.25,000/- per month to the applicant, over and above the amounts allowed by the Trial Court in the impugned order, till the final decision of the petition.
(SMT. ABHILASHA KUMARI, J.) ARG Page 8 of 8