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Thursday, 2 January 2014

Judgement on 24 HMA (interim maintenance) went for reconsideration.....

Bench: A Alam, R Lodha
(Arising out of SLP (C) No. 6736 of 2007)
Neeta Rakesh Jain .... Appellant Vs.
Rakesh Jeetmal Jain ....Respondent JUDGMENT
Leave granted.
2. The order dated September 21, 2006 passed by the High Court of Judicature at Bombay (Appellate Side),
which fixes the interim maintenance at the rate of Rs. 12000/- per month pending appeal, is under challenge at
the instance of the wife - appellant in this appeal by special leave.
3. The parties were married on May 8, 1995. The respondent-husband petitioned for divorce under Section 13
(1) (ia) and (ib) of the Hindu Marriage Act, 1955 (for short, `the Act') on the ground of cruelty and desertion
against the wife. The Principal Judge, Family Court No. 5, Pune, passed an ex-parte decree on April 7, 2005
dissolving the marriage between the parties on the ground of cruelty. The wife has preferred an appeal before
the Bombay High Court challenging the ex-parte decree. The appeal has been admitted. On July 18, 2005 an
ad-interim order was granted staying the operation of the ex-parte decree. The husband was also restrained
from re-marrying until further orders. The ad-interim stay order is operative although the husband has
informed the High Court that on July 22, 2005 he had re-married. The factum of re-marriage has been
disputed by the wife before the High Court.
4. The wife made an application (Civil Application No. 107 of 2006) for direction to the husband to pay to her
interim maintenance of Rs. 50,000/- per month. In that application it was stated that husband's income is Rs.
2,00,000/- per month approximately. It was stated that the husband is a highly qualified person; he is
Chartered Accountant (CA) and has also passed Cost and Works Accounts of India (ICWA). He passed
Chartered Institute of Management Accountants (CIMA), U.K., examination in May, 1999 and also completed
course of Computer Information Technology. According to wife, at the time of marriage the husband was
working with M/s. Kalpataru Constructions at Mumbai drawing a salary of Rs. 40,000/- per month; in 1996 he
changed his job and was appointed as Finance Manager with M/s. Kimberly Clark, Pune (a multi-national
company) at double the salary and in May, 1998 he joined a highly reputed software company, namely, M/s.
Tata Technology on substantially increased salary. In 1999, the husband was sent to Sri Lanka by the
company as a Senior SAP Consultant where he was entitled to a chauffeur driven Toyota Van and a large
bungalow to live. He returned to Pune in August 1999. At that time his monthly income was about Rs.
1,50,000/-. The wife averred that somewhere in the month of January, 2000 the husband started his own
company in the name and style of M/s. Paysquare Consultancy Limited at Pune and engaged several computer
and IT engineers, chartered accountants and MBAs as employees. As regards her own income, the wife stated
that she did not have any independent source of income and was pursuing her studies of Ph.D. at the mercy of
her elder sister who has been supporting her since 2001.
5. The husband responded to the application by filing his affidavit. Substantial part of the reply affidavit deals
with the proceedings before the Family Court. As regards his income, he stated that he joined the service with
Neeta Rakesh Jain vs Rakesh Jeetmal Jain on 20 July, 2010
Indian Kanoon - http://indiankanoon.org/doc/9474/
M/s. Kalpataru Constructions as an entry level job with a total income of Rs. 7,000/- per month. According to
him, his salary in M/s. Kimberly Clark was Rs. 15,000/- per month while his salary in M/s. Tata Technology
was Rs. 20,000/- per month. He stated that having worked for six years, he decided to start on his own and put
all his savings in the company - M/s. Paysquare Consultancy Limited. He also stated that he was not the sole
owner or proprietor of the company and that from August 2005 he has started drawing the salary of Rs.
30,000/- per month from the company.
6. The Division Bench in the impugned judgment observed that since an application for interim maintenance
was being considered, it was not inclined to deal with the submissions advanced by the counsel for the parties
on the earning capacity of the husband in extenso and accepting the husband's statement that he was getting
Rs. 30,000/- per month, fixed an amount of Rs. 12,000/- per month as interim maintenance to the wife.
7. Section 24 of the Act makes a provision for maintenance pendent lite and expenses of proceedings. It reads
thus:- "S.24.- Maintenance pendent lite and expenses of proceedings.- Where in any proceeding under this Act
it appears to the court that either the wife or the husband, as the case may be, has no
independent income sufficient for her or his
support and the necessary expenses of the
proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner
the expenses of the proceeding, and monthly, during the proceeding such sum as, having regard to the
petitioner's own income and the income of the respondent, it may seem to the court to be reasonable.
Provided that the application for the
payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as
possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the
case may be."
8. Section 24 thus provides that in any proceeding under the Act, the spouse who has no independent income
sufficient for her or his support may apply to the court to direct the respondent to pay the monthly
maintenance as the court may think reasonable, regard being had to the petitioner's own income and the
income of the respondent. The very language in which Section is couched indicates that wide discretion has
been conferred on the court in the matter of an order for interim maintenance. Although the discretion
conferred on the court is wide, the Section provides guideline inasmuch as while fixing the interim
maintenance the court has to give due regard to the income of the respondent and the petitioner's own income.
In other words, in the matter of making an order for interim maintenance, the discretion of the court must be
guided by the criterion provided in the Section, namely, the means of the parties and also after taking into
account incidental and other relevant factors like social status; the background from which both the parties
come from and the economical dependence of the petitioner. Since an order for interim maintenance by its
very nature is temporary, a detailed and elaborate exercise by the court may not be necessary, but, at the same
time, the court has got to take all the relevant factors into account and arrive at a proper amount having regard
to the factors which are mentioned in the statute.
9. In a case such as the present one, the stand of the husband that he is drawing salary of Rs. 30,000/- per
month from the company since August 2005 is inherently improbable. The husband is highly qualified; he is
CA, ICWA, CIMA and has also completed course of Computer Information Technology. He has worked with
renowned and big companies like M/s. Kimberly Clark and M/s. Tata Technology as Finance Manager and
Senior SAP Consultant respectively before he started on his own in January, 2000. He did not leave the job
due to any compulsion but because he wanted to grow big. He has admitted that having worked for six years,
he decided to do his own business and started the company, namely, M/s. Paysquare Consultancy Limited in
Neeta Rakesh Jain vs Rakesh Jeetmal Jain on 20 July, 2010
Indian Kanoon - http://indiankanoon.org/doc/9474/
which he has sought financial/administrative help of his brother and one Ms. Nilima Apte. How can it be
believed that a person who has started his own business leaving the job in 2000 would start drawing the salary
of Rs. 30,000/- per month from the company from August, 2005? The High Court has not taken into
consideration these vital aspects and accepted the statement of the husband that he was drawing salary of Rs.
30,000/- per month as a gospel truth. Insofar as wife is concerned, it appears that she does not have any settled
job; she has worked at few places for few months. We think this is eminently a case in which the High Court
must reconsider the wife's application for interim maintenance.
10. Accordingly, this appeal is partly allowed, the impugned order dated September 21, 2006 is set aside and
Civil Application No. 107 of 2006 made by the wife for interim maintenance is restored to the file of the High
Court for fresh consideration. We expect the High Court to dispose of the application for interim maintenance
expeditiously and before it proceeds with the hearing of the main appeal, being Family Court Appeal No. 10
of 2006. The cost of the appeal is quantified at Rs. 20,000/- (Rupees twenty thousand) which the respondent
shall pay to the appellant within one month from today.
New Delhi,
July 20, 2010.
Neeta Rakesh Jain vs Rakesh Jeetmal Jain on 20 July, 2010
Indian Kanoon - http://indiankanoon.org/doc/9474/
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