IMPORTANT POINT
While deciding the quantum of interim maintenance, factors like income of the parties etc. should be taken into account.

JUDGMENT

R.M.Lodha, J. —

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 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 exte