IMPORTANT POINT
Maintenance ought to be arrived at a justiciable figure on the basis of evidence by way of Income Tax Returns or details of assets that may be produced by the either parties.

JUDGMENT :

BIREN VAISHNAV, J.

1. Rule returnable forthwith. Learned advocate Mr. Mansuri waives service of notice of rule for the respondent. With the consent of the learned advocates appearing for the respective parties, the matter was taken up for final hearing on 17.8.2020.

2. The petitioner-wife of the respondent has filed this petition under Article 226 of the Constitution of India, challenging the order dated 10.7.2018 passed by the Family Court at Ahmedabad. By the order dated 10.7.2018 passed below Exh.5, the Family Court has rejected the application of the petitioner for getting interim maintenance u/s. 24 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’).

3. The facts in brief are as under:

(i) An application u/s. 24 of the Act was filed by the petitioner on 12.5.2016. It was the case of the petitioner that that the petitioner and the respondent had entered into a wedlock on 14.10.1984. Out of the marriage, a son named Rahul was born on 27.6.1985 and daughter Mukta on 29.4.1989. The daughter died in the year 2003.

(ii) The case of the petitioner before the Family Court was that, after 2011 the marriage ran into rough weather as a result of an allegation that the son Rahul was not born out of their wedlock and that a DNA Test was carried out surreptitiously. This caused the petitioner to leave the matrimonial home on 19.5.2012. A Hindu Marriage Petition was filed by the respondent in the year 2012 being Application No. 815 of 2012 seeking divorce from the petitioner on the ground that the son Rahul was born 256 days after the wedlock and therefore was not the child out of their marriage, that the respondent therein i.e. the petitioner mentally harassed the husband and therefore divorce was sought. It is undisputed between the parties that even an application for restitution of conjugal rights was filed being Application No. 914 of 2016.

(iii) The case of the petitioner was that though she was working in a private company, as stated in the application, looking to her age now i.e. 53 years, she was not in a position to maintain herself due to the advancing age and therefore needed maintenance to sustain herself.

(iv) The application was opposed by the respondent husband on the ground that the petitioner was working with Vadilal Sarabhai Enterprises. In the year 2011, she was promoted as an Executive drawing a salary of Rs. 12,000/- and, therefore, she was not entitled to claim maintenance of Rs. 51,000/- as claimed.

(v) The learned Judge, Family Court, after examining the evidence on record came to the conclusion that though it was the case of the petitioner that the respondent was a Manager and drawing a salary of Rs. 90,000/- on the basis of the documentary evidence produced at Exh.22 wherein he had showed that the petitioner was drawing a salary of Rs. 12,000/- the learned Judge observed that it is an accepted and an admitted fact that the petitioner was working in a private institution and is also entitled to pension and provident fund. The learned Judge further observed that she was residing with her son Rahul who was a chartered accountant having handsome income and, therefore, was living in comfort with the son and, therefore holding that the petitioner was a working woman having independent income presumption was drawn that the petitioner was drawing atleast Rs. 17,000/- after a lapse of 3 years from the date of divorce petition, the application was rejected.

4. Ms. Nita Pandit, learned advocate has appeared on behalf of Mr. A.R. Gupta, learned advocate for the petitioner and made the following submissions:

(i) Ms. Pandit would submit that the order denying maintenance in total is bad. She would submit, reading Section 24 of the Act would indicate that not only is the income of the applicant to be taken into consideration but also the income of the respondent. In the present case, she would submit that it was undisputed that the respondent husband was working as a Manager in the State Bank of India dra