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GUJARAT HIGH COURT
Akil Kureshi and Vipul M. Pancholi, JJ.
Hansaben —Applicant
versus
Ashwinkumar Kacharabhai Patel —Respondent
Civil Application (For Orders) No.11524 of 2014 in First Appeal No.2254 of 2011
Decided on 22.12.2014
For the Applicant:Samir J. Dave, Advocate
For the Respondent:Dhaval Shah and Ms. Anushree Kapadia, Advocates
IMPORTANT POINT
Considerations for passing order under S. 25 (1) of the Act entirely different from those which apply for interim maintenance proceedings under Section 24 of the Act.
Headnote:Hindu Marriage Act, 1955 — Section 13 (1), 24 & 25 — Divorce — Husband engaged in business of printing — He completely failed to explain two cheques issued by him in favour of Sudhaben — HELD — Refuse to base consideration on husband’s disclosures in income tax returns — Husband has additional source of income over and above Rs. 75634 of gross yearly income disclosed by him in revised return for last assessment year — Husband ordered to pay Rs. 5000 per month to wife — By way of maintenance pendente lite from date of this application till disposal of First Appeal — This would be inclusive of Rs. 1500 he obliged to pay by way of permanent alimony fixed under S. 25 of the Act. [Paras 26 & 27]
(ii) Hindu Marriage Act, 1955 — Section 24 vis a vis 25 — Permanent Alimony vis a vis Interim Maintenance — HELD — Merely because Family Court passed order of permanent alimony under S. 25 of the Act — Would not make wife’s application under S. 24 for interim maintenance pending — Present appeal not maintainable. [Para 25]
Result: Application partly allowed
Akil Kureshi, J.—This application is filed by the respondent of the First Appeal seeking enhancement in the alimony from that of Rs.1,500 per month fixed by the Family Court in the Family Suit to Rs.10,000 per month.
2. Brief facts are as under:
3. Applicant is wife of present opponent. The husband had filed Family Suit No.50 of 2007 before the Family Court, Ahmedabad, seeking decree of divorce under Section 13(1) of the Hindu Marriage Act, 1955 (“the Act” for short) on various grounds. The Family Court disposed of such suit by judgment dated 7th June 2011. Husband’s Family Suit was allowed in part. Prayer for decree of divorce was not accepted. However, the learned Judge ordered judicial separation between the couple from the date of the judgment and decree. While doing so, the husband was ordered to pay permanent alimony at the rate of Rs.1,500 per month to the wife from 1st June 2009.
4. The husband has filed present First Appeal No.2254 of 2011 challenging the judgment of the Family Court. Such appeal is admitted and is pending. Pending such proceedings, the wife filed this Civil Application purportedly under Section 24 of the Act seeking enhancement in the alimony from Rs.1,500 to Rs.10,000, inter alia on the grounds that the amount is meager, the husband is engaged in the business of printing earning sizeable income, considering the inflation and price-rise higher amount for maintenance of the wife would be justified.
5. Such application is opposed by the husband. An affidavit in reply dated 13th October 2014 was filed denying that he was engaged in the printing business, clarifying that he was doing printing business only as job work. He had filed income tax return for the assessment year 2012-13, where his business income was shown to be Rs.41,199 per year. It was also contended that the application itself is not maintainable. Along with his affidavit, he had produced the statement of his bank account for the period between 1.3.2009 to 18.3.2014. In such account, we had noticed two outward entries of Rs.3,50,000 each dated 26.4.2014 and 29.4.2014 in favour of one Sudhaben Yogeshkumar. Under order dated 20.11.2014, we had called upon the husband to reveal his relation with the said person and also the reason for payment of such large amount to her. He was also asked to disclose the source of these deposits, why they were made in cash and supporting evidence for the same.
6. In response to such order, the husband filed additional affidavit dated 17.12.2014 and clarified that said Sudhaben is his niece. She and her husband had helped him in several court proceedings arising out of the matrimonial disputes. In the month of April 2014, they were in need of finance and, therefore, he had given them loan of Rs.7 Lacs in two installments. He clarified that he had a share in the ancestral property along with his brother and four sisters, each one was to receive Rs.1,31,000 from the brother, who had retained agricultural lands of the family. Since the brother did not have good relations with the sisters, he had routed their shares also through the respondent husband. Such amounts were received in cash and deposited in his bank account. Since his bank account also showed deposits of Rs.70,000, Rs.6 Lacs and Rs.1,70,000 through cheques, it was clarified that such amounts were received by him from his nephew Dineshbhai Jayantilal Patel with whom he had recently started a business of electric pumps. In this affidavit, it is further stated that a revised income tax return for the assessment year 2014-15 was filed showing gross income of Rs.75,634 instead of Rs.65,634 previously declared.
7. On behalf of the applicant wife learned counsel, Shri Samir Dave submitted that, pending the First Appeal, higher amount of maintenance is required to be paid by the husband. Considering his income and other resources, sum of Rs.1,500 per month is a meager sum. He contended that the husband has systematically tried to withhold correct informatio
