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2017 Supreme(Bom) 1814
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SHALINI PHANSALKAR JOSHI, J.
Mrs. Shama Rahul Moholkar @ Shama Vasant Padale - Petitioner
Versus
Rahul Deorao Moholkar - Respondent
WRIT PETITION NO. 4331, 4676 OF 2017
Decided On : 10-11-2017
Advocate Appeared:
For the Petitioner: Mr. Abhijit Sarwate
For the Respondent: Mr. B. M. Patwardhan i/by Abhijit Kandarkar
The main legal point established in the judgment is that the purpose of interim maintenance is to prevent either spouse from suffering due to income disparity, and the assessment of actual income is crucial in determining entitlement to interim maintenance.
Headnote:
Maintenance - Special Marriage Act - Sections 36, 38 - The court discussed the provisions of Sections 36 and 38 of the Special Marriage Act, 1954, regarding interim maintenance for the wife and child. It also considered the interpretation of the term 'maintenance' to include provision for residence and medical expenses. The court highlighted the need to assess the actual income of the parties and the purpose of interim maintenance to prevent either spouse from suffering due to income disparity.
Fact of the Case:
The case involved a dispute between a husband and wife regarding interim maintenance, residential accommodation, and reimbursement of medical expenses. The wife filed for divorce and sought interim maintenance for herself and her daughter, while the husband challenged the order to pay interim maintenance for the daughter.
Finding of the Court:
The court found that both parties were well-qualified and had independent sources of income. It held that the wife's claim for interim maintenance was not justified as she had an independent source of income. The court also noted that the husband was capable of contributing to the maintenance of the child and dismissed his petition.
Issues: The main issues revolved around the wife's claim for interim maintenance, provision of residence, and reimbursement of medical expenses. The court also considered the disparity in income between the parties and the purpose of interim maintenance under the Special Marriage Act.
Ratio Decidendi: The court emphasized that the purpose of interim maintenance is to prevent either spouse from suffering due to income disparity. It also highlighted the need to assess the actual income of the parties and the inclusion of provision for residence and medical expenses in the concept of 'maintenance'.
Final Decision: Both writ petitions were dismissed as the court found no grounds to interfere with the balanced order passed by the Family Court.
1. Rule. Rule made returnable forthwith with the consent of learned counsel for both the parties, heard finally at the stage of admission itself.
2. Both these writ petitions are arising out of one and the same order passed by the Principal Judge, Family Court, Pune in P. A. No.891 of 2014. Hence they are being decided by this common order.
3. For the convenience, parties are referred to by their original nomenclature, wife as “petitioner” and husband as “respondent”.
4. By the said order, the Principal Judge of Family Court, Pune, has rejected the claim of petitioner wife for interim maintenance, residential accommodation, litigation costs and reimbursement of Medical Expenses. Hence she has preferred Writ Petition No.4331 of 2017, challenging the impugned order; whereas the Writ Petition No.4676 of 2017, is preferred by the husband, being aggrieved by the order, directing him to pay interim maintenance at the rate of Rs.25,000/- per month to petitioner for maintenance of daughter Siddhi, from the date of application till decision of the petition.
5. Brief facts of these Writ Petitions are to the effect that, the marriage of petitioner and respondent has taken place on 21.03.2011. However, on account of matrimonial dispute between the parties, both of them started residing separately since 24.4.2013. Thereafter the petitioner has filed a petition for divorce against respondent on the ground of cruelty under the provisions of Special Marriage Act, claiming permanent alimony and other reliefs.
6. During the pendency of the said petition, she has filed an application at Exh.5, under Sections 36 and 38 of the Special Marriage Act, 1954, for interim maintenance for herself and for her daughter. In support of her application, she relied upon various documentary evidence proving sound financial position of the respondent and her inability to maintain herself and daughter, having no source of income and being dependent upon the financial support provided by her father.
7. As against it, respondent made every effort to show that he is not having sufficient means to pay maintenance; whereas the petitioner is very well placed, being the Director of a Company and hence an application for interim maintenance cannot be entertained. In support of his submissions, he relied upon various documents proving the fact that the petitioner is a Director of ERP Corporation Private Ltd., and she is maintaining the car and lavish life style. It was also shown that her profile on various websites reveals that her qualification is MMS in HR, DCE, DBM, DID, however, she has tried to suppress her real income and also the fact that she was the Director of ERP Corporation.
8. Hence having regard to the fact that the petitioner wife is a highly qualified person and was working as Director of the company, the Family Court rejected her application for maintenance; whereas having regard to the financial position of respondent, the Family Court held that he is also liable to contribute to the maintenance of the child Siddhi and accordingly awarded interim maintenance to the child at the rate of Rs.25,000/- per month to the child Siddhi.
9. While challenging the impugned order of the Family Court, the submission of learned counsel Shri. Sarwate, for petitioner is that the Family Court has not at all taken into consideration the fact that the petitioner is having responsibility to maintain and look after the child of 3 to 4 years and therefore, though she may be having the potential of earning income, unless it is proved that she is actually earning the income, she cannot be deprived from getting maintenance. By placing reliance on the judgment of Apex Court in Shailja and anr -vs- Khobbanna, 2017 Supreme Court (SC) 75, it is urged that, “whether the wife is capable of earning or whether she is actually earning are two different concepts. Merely because wife is capable of earning is not sufficient reason to deny her maintenance.
10. Learned counsel appearing for
