Court No. - 44
Case :- FIRST APPEAL No. - 778 of 2021 Appellant :- Shailendra Kumar Agrahari Respondent :- Smt Sanjoli Agrahari Counsel for Appellant :- Shivbaboo
Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Krishan Pahal,J.
By means of the present appeal, the appellant seeks to challenge the order dated 10.09.2021 passed by the Family Court, Jaunpur under Section 24 of the Hindu Marriage Act whereby an amount of Rs.8,000/- per month had been fixed towards maintenance, also Rs.2,000/- towards the expenses to be incurred by the wife for participating in the proceedings drawn by the husband.
It is noted in the order impugned that the wife has to travel from Gorakhpur to Jaunpur for participating in the proceedings under Section 13 of the Hindu Marriage Act. It has also noted that the husband is a proprietor of the firm namely Zenosis Beverages and is a businessman. The Income Tax Return and the bank statement had been filed by the appellant before the Family court as the proof of his income.
Having considered the material on record and the statement of the wife, it was noticed by the Family court that the respondent wife has no independent source of income.
There is no dispute about the said facts recorded in the order impugned. Only submission of learned counsel for the appellant is that the monthly maintenance of Rs.8,000/- is highly excessive. It is contended that the material brought by the appellant on record as a proof of his income has not been duly considered.
Considering the said submissions, we may note that the Income Tax Return of the businessman who has no fixed income cannot be considered as proof of his income. The Court cannot be oblivious of the position that generally the actual income is not disclosed at the time of filing of the Income Tax Return. Further, the appellant is completely silent on the issue that the bank account disclosed by him is the only bank account. The statement of the account of the firm, however, has not been filed. The details of the personal saving bank account of the appellant which has been brought before the trial court cannot be said to be the proof of his income.
In absence of any other material, it cannot be said that the trial court has erred in fixing Rs.8,000/- as monthly maintenance or the same is excessive.
Before parting with this judgment, we may find it proper to note the observations of the Apex court in case of Rajnesh vs Neha and another reported in 2021 (2) SCC 324 wherein the Apex Court has laid down the criteria which has to be kept in mind by the Family Court at the time of fixing interim maintenance to the wife.
"77. The objective of granting interim / permanent alimony is to ensure that the dependant spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded.
78. The factors which would weigh with the Court inter alia are the status of the parties; reasonable needs of the wife and dependant children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife."
The Apex Court had noted that normally it has been seen that in the case of maintenance, husband while putting up his defence or contesting the proceedings does not disclose his actual income and takes the plea of him being unemployed or having very less income. Keeping this in mind the directions have been issued by the Apex Court, relevant part to be quoted herein:
"72.1 (a) The Affidavit of Disclosure of Assets and Liabilities annexed at Enclosures I, II and III of this judgment, as may be applicable, shall be filed by the parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrate’s Court, as the case may be, throughout the country;
72.2 (b) The applicant making the claim for maintenance will be required to file a concise application accompanied with the Affidavit of Disclosure of Assets;
72.3 (c) The respondent must submit the reply alongwith the Affidavit of Disclosure within a maximum period of four weeks. The Courts may not grant more than two opportunities for submission of the Affidavit of Disclosure of Assets and Liabilities to the respondent. If the respondent delays in filing the reply with the Affidavit, and seeks more than two adjournments for this purpose, the Court may consider exercising the power to strike off the defence of the respondent, if the conduct is found to be wilful and contumacious in delaying the proceedings.32 On the failure to file the Affidavit within the prescribed time, the Family Court may proceed to decide the application for maintenance on basis of the Affidavit filed by the applicant and the pleadings on record;
72.4 (d) The above format may be modified by the concerned Court, if the exigencies of a case require the same. It would be left to the judicial discretion of the concerned Court, to issue necessary directions in this regard."
As the wife do not have any correct information regarding income of the husband, while putting up his defence or contesting the plea of maintenance, it was incumbent upon the appellant husband to bring all the documents showing proof of his income. Withholding of material evidence in possession of the appellant husband would be a reason to draw adverse inference against him. This issue has been answered by the Apex Court in the following manner:
"72.6 (f) The income of one party is often not within the knowledge of the other spouse. The Court may invoke Section 106 of the Evidence Act, 1872 if necessary, since the income, assets and liabilities of the spouse are within the personal knowledge of the party concerned."
"91. The living expenses of the child would include expenses for food, clothing, residence, medical expenses, education of children. Extra coaching classes or any other vocational training courses to complement the basic education must be factored in, while awarding child support. Albeit, it should be a reasonable amount to be awarded for extra- curricular / coaching classes, and not an overly extravagant amount which may be claimed.
92. Education expenses of the children must be normally borne by the father. If the wife is working and earning sufficiently, the expenses may be shared proportionately between the parties.
111. The rationale of granting maintenance from the date of application finds its roots in the object of enacting maintenance legislations, so as to enable the wife to overcome the financial crunch which occurs on separation from the husband. Financial constraints of a dependant spouse hampers their capacity to be effectively represented before the Court. In order to prevent a dependant from being reduced to destitution, it is necessary that maintenance is awarded from the date on which the application for maintenance is filed before the concerned Court."
Apart from the wife, the couple have a minor child of about one year of age who is living with the wife. The appellant husband is not paying a single penny for his child. This fact also required to be considered by the Family Court while fixing the monthly maintenance in view of the decision of the Apex Court. As the wife is not before us and we do not propose to admit this appeal, we refrain from making any observation on the said issue.
For all the aforesaid reasons, we do not find any merit in the appeal. The appeal is dismissed at the admission stage itself.
Order Date :- 25.10.2021 Harshita