1. Challenge is made to the order passed by Family Court on 4.1.2011 below Exh. 14 in H.M.P.Case NO. 605 of 2008, on an application preferred u/s. 24 of the Hindu Marriage Act, denying the interim alimony to the present petitioner by raising various grounds in the present petition.
2. It is the case of the petitioner that her marriage with respondent No.2 on 12.5.1994 ran into the rough weather therefore, respondent filed petition for divorce u/s. 13 of the Hindu Marriage Act. The daughter Miti was borne out of the said wedlock on 26.1.1997 who is presently studying in 9th standard in the Mount Carmel School, Navrangpura, Ahmedabad.
3. There are various allegations and counter allegations which are not to be gone into at this stage, as this challenge is restricted to non-grant of interim alimony to the wife and the daughter.
4. It is the say of the petitioner that the Court granted maintenance of Rs.2,000/- for the petitioner and Rs.1,000/- for the daughter by an order dated 25.12.2009 in Criminal Misc. Application No. 321 of 2008 u/s. 125 of the Code of Civil Procedure. Husband has of course challenged the said order by way of filing an appeal being Appeal No. 17 of 2010 and such amount of interim maintenance was confirmed by Appellate Forum on 22nd April, 2010. Special Criminal Application No. 1113/2010 was preferred where this Court directed to pay additional sum of Rs.5,000/- for adequate and reasonable standard of living and the said order was passed on 13.9.2010 however, no amount has been paid.
5. Request was made for interim alimony in the petition of divorce. Family Court essentially depending on income tax return of respondent of the year 2005-2006 and 2006- 2007. It is pleaded that respondent is used to luxurious life style and he has not travelled by any other mode but by the Air. He is also the member of Rajpath Club and is having very spacious residential bungalow in a society meant for affluent people. Despite all the details available with the Court, Court denied interim alimony on the ground that she is getting Rs.8,000/-every month and documents of the respondent do not allow the Court to grant any further amount. She has been awarded the sum of Rs.10,000/- by way of legal expenses according to him.
6. whereas accordingly learned advocate for the respondents that respondent is an Event Manager and respondent is facing 24 Court proceedings, his return of income tax is reflected only Rs.10,000/- . He also urged that the payment of tuition fees of the daughter has been paid by him. No further amount is necessary to be granted. Reliance is also placed on some of the orders of this Court passed in application under protection of woman under the Domestic Violence Act. Say of the respondent that he is paying of Rs.10,000/- cannot be taken on face value.
7. On hearing learned advocate for the parties and on having examined the material on record, it is necessary for this Court to intervene in the order impugned for the reasons to be followed hereinafter.
8. Section 24 of the Hindu Marriage Act provides for interim alimony pendent lite . Object of such provision as to ensure that during the pendency of any litigation between the parties, wife and her dependent should not be in a destitute condition. Moreover, as has been well laid down by this Court as well as Supreme Court, maintenance would not mean providing the means for animal living.. There has to be respectable living to be made affordable to the wife and children both.
9. In the instant case initially the wife has been given the sum of Rs. 3,000/- for the maintenance for herself and for the daughter who is in the 9th standard. It is only on the intervention of this Court, the amount of Rs. 5,000/- had been added. Therefore, she is ordered to get sum of Rs.8,000/-.
10 As can be noted from the record, the expanses of the daughter who is studing in the English Medium School is more than Rs.8,000/- per month, considering her tuition fees and her school fees etc., so far. It must be noted that learned advocate for the petitioner on instructions accepted to bear the entire expenditure of the studies of daughter. Again, the amount of arrears from December, 2009 to August 2010, admittdly the sum of Rs. 2,66,000/-, is said to have been paid by the respondent towards maintenance.
11. As correctly submitted by the learned advocate for the petitioner daughter school fees of the daughter on monthly basis comes to Rs.2,000/- and tuition fees yearly is Rs.60,000/-. Her maintenance and other expenses will be much more. Credit cards details, electricity bills, air travels etc. of respondent would reflect the life style of petitioner and it will not be correct to say on the basis of these details that his earning is of Rs. 10,000/- per month. Petitioner has also produced the details of properties belonging to respondent and his additional property vide at Annexure I to substantiate these aspects.
Judgement of this Court rendered in Criminal Misc. Application No. 563 of 2010 dtd 29th January, 2010 needs reproduction at this stage as under :
“Wherein Court has held that incometax returns are mostly the declaration by a person of his own income which need not necessarily, in all cases, be taken as a gospel truth. The petitioner is present before me. He stated that dispensary is situated in premises which is owned by his mother. He also resides in a house which is owned by his father. He uses a car, has a land line telephone as well as a mobile phone. If the petitioner is living life of such comforts, it is necessary that wife also must be permitted bare minimum existence of somewhat similar sets of facilities. It has come on record that father of the wife has expired. Widowed mother has no source of income. Undisputedly, wife does not earn any income. Under the circumstances, in this interim arrangement, I see no reason to interfere and thereby Court's order confirmed by directed husband to pay Rs.15,000/ per month from the date of application .”
12. As can be seen from the order of the Court mainly dependend on income tax returns and the facts that the wife has got sum of Rs.8,000/- by way of maintenance amount. Considering the fact that he has spacious residential bungalow situated in a society well located being Dream Land Co-operative Society, Navrangpura and he has also been proprietor of Max Events. His balance- sheet is reflecting expenditure of Car, Furniture, motor cycle, mobile phone, computer, printer, miscellaneous debtors , office purchase, telephone, LIC premium etc.
13. Although, there are various ways of tax planning and of tax evasion as well relying on decision of this Court, the version of the husband given in this petition is not finding favour by accepting the income tax return as gospel truth. This Court is conscious of the fact that this is not petition arising out of decision of permanent alimony and both the parties will have ample opportunities to contest this issue finally in pending suit However for present, for the wife to survive in a dignified manner, she also would require to meet both her ends meet, not to take of the place of her own which is a necessity for upkeeping her human dignity. She presently resides with her brother and his family and with her parents, having no source of income for herself. Admittedly, when the daughter is studying in the 9th standard and with higher eduction in English Medium school becoming increasingly expensive and the tuition fees for the vital academic years of the 10th to 12th standard also becoming more and more expensive, Court was not right in disallowing her request in toto for interim alimony . As respondent -husband has agreed to bear tuitions /study expenses of the daughter in toto, her all other requirements would necessiate enhancement even at this stage. Again, sum of Rs.8000/- may surely not suffice and even if wife is not to enjoy all the luxuries available with the husband, her ordinary living standard will warrant additional amount as ordinary household also can never fraction for the sum of Rs.8000/- .
14. Resultantly, this petition is being allowed Considering the overall facts and circumstances, it would be appropriate to direct further additional amount of Rs.7,000/- for daughter's maintenance and education and Rs.5,000/- for maintenance of wife towards the interim alimony from the date of this petition with a further direction to deposit the entire amount paid within two months from the receipt of this order. Accordingly, order impugned passed by the Family Court stands quashed and set-aside.
This petition stands disposed of in the above terms.
(Ms.Sonia Gokani,J) bina