The excerpts of following Bombay H.C. judgment shows how some of the husbands tell lies out of their teeth before hon'ble courts and how paltry income earned by wife cannot prohibit her to seek maintenance.
APPELLATE SIDE
Writ Petition No.5338 of 2009
Anup Avinash Varadpande .. .. Petitioner v/s.
Anusha Anup Varadpande .. .. Respondent
CORAM : SMT.ROSHAN DALVI, J.
DATED : 11th January, 2010
ORAL ORDER :
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6.It is common knowledge that husbands who desire to fail and neglect to maintain their wives in consonance with their martial obligation and statutory duty to maintain them create evidence of termination of their services or contracts so soon as the marriage breaks down, parties separate or the wife makes her claim for maintenance. Production of a mere letter or order of termination of service or resignation from service cannot be relied upon or considered by the Court in the absence of proof of execution of such a document and genuineness and bona fides of its creator. There is no reason for an otherwise qualified and physically capable husband to have to be dismissed or terminated from service or to resign his job or discontinue his career. In this case, it is not surprising that the firm from which his dealership contract is terminated is shown, under an unregistered partnership deed (the kind of which that can be fabricated at any time) to belong essentially to his father and brother and the place of business of the partnership is shown to belong to his mother as shall be seen presently.
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9.The learned Judge has accepted the internet profile. The husband has relied upon his income-tax returns showing an annual income of about Rs.2 Lakhs which is rightly rejected as not representing his true financial status and income by the learned Judge in view of his association with as many as 4 Companies. The husband has not produced the same before this Court.
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11.The husband lives in a bungalow, has membership of at least one Club. He lives in affluent circumstances which fact is considered by the learned Judge. The bungalow is a family property. Though the husband has not produced the documents of purchase by the mother, he claims, upon the record of rights, that his mother is the owner.
12.The learned Judge has also considered some paltry income that the wife earns from her service as a primary school teacher in Symbiosis Primary school on temporary basis, earning Rs.5,000/- per month as reflected as in the salary slip shown by her. Mr.Warunjikar has contended that it is erroneous to consider the net income of the wife after deduction of her provident fund, etc., and that the learned Judge should have considered her gross income. The wife secured this job in 2008. The parties married on 14.10.2006. They admittedly separated in March 2007. The wife is seen to have taken the temporary job out of a constraint to earn her living. It may be mentioned that a paltry income earned by the wife, specially after separation or upon the neglect of the husband to maintain the wife, cannot be termed as her income . It is merely an amount received upon the constraint to serve to make ends meet. Such amount can hardly be considered for determining sufficiency of income.
13.What is contemplated to be income in any provision for grant of interim maintenance, be that under Section 24 of the Hindu Marriage Act, Section 18 of the Hindu Adoptions and Maintenance Act, Section 20(1)(d) of the Protection of Women from Domestic Violence Act, 2005, 7
under Section 125 of the Criminal Procedure Code, or any other similar legislation is that the wife, of her own volition, and upon her educational or professional qualifications, pursues a settled career either by way of service or profession or business in which she derives her own independent, separate income or otherwise earns income by way of investments, rents, profits or the like from any settled source of income. The sufficiency or otherwise of such income is required to be seen and calculated to grant or reject her claim of maintenance.
14.It wold be unjust and unreasonable to disallow a woman her claim to maintenance when it is seen that she did not pursue a career or be in service during the subsistence and continuation of her marriage and had taken up a job or service only when the parties separated.
15.This phenomenon can be appreciated from another angle also. A wife, who is in service is entitled and often required, to give up her service after marriage. She is equally entitled to give up her service after the parties separate. She is entitled to make a claim for maintenance thereafter. Of course, the bona fides of such a claim would have to be seen from the facts of each case. In normal circumstances, upon such a claim being made, the husband would be obliged and bound to maintain her. In such a case, her maintenance amount would be determined based only upon the income of her husband.
16.Hence if a wife is constrained to earn in a service taken up by her to make ends meet or to survive with dignity pending the actual receipt of maintenance from her husband after following the usually labourious legal process, in our judicial system wrought with the consummate delays, she cannot be penalised for the legitimate means of earning her modest and honest livelihood. Earnings of a primary school teacher who has been neglected and failed to be maintained by a businessman husband cannot even be justified to be deducted from an amount deemed fit and reasonable to be paid to her as maintenance from the income of the husband.
17.Nevertheless, the learned Judge has considered her net income of Rs.5,000/- from her salary certificate and granted the amount of maintenance of only Rs.15,000/- per month.
18.The order is not perverse. The Writ Petition is rejected. Rule is discharged accordingly.
(SMT.ROSHAN DALVI, J.)
