Home > Judgement > Gujrat HC: Husband can buy a car so can afford 17500 per month also !!!

Gujrat HC: Husband can buy a car so can afford 17500 per month also !!!

Dharmeshbhai vs Hetal on 1 August, 2011
Author: Mr.S.J.Mukhopadhaya, Mr.Justice J.B.Pardiwala,

Gujarat High Court Case Information System

Print

LPA/1263/2010 17/ 17 JUDGMENT

IN

THE HIGH COURT OF GUJARAT AT AHMEDABAD

LETTERS

PATENT APPEAL No. 1263 of 2010

In

SPECIAL

CIVIL APPLICATION No. 3054 of 2010

With

CIVIL

APPLICATION No. 5962 of 2010

In

LETTERS PATENT APPEAL No. 1263 of 2010

For

Approval and Signature:

HONOURABLE

THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA HONOURABLE

MR.JUSTICE J.B.PARDIWALA

=========================================================

1

Whether

Reporters of Local Papers may be allowed to see the judgment ?

2

To be

referred to the Reporter or not ?

3

Whether

their Lordships wish to see the fair copy of the judgment ?

4

Whether

this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?

5

Whether

it is to be circulated to the civil judge ?

=========================================================

DHARMESHBHAI

DOLATRAI DESAI – Appellant(s)

Versus

HETAL

@ DOLI DHARMESHBHAI DESAI W/O DHARMESH DOLATBHAI DESAI & 1 – Respondent(s)

========================================================= Appearance

:

MR

APURVA A DAVE for

Appellant(s) : 1,

MR DAKSHESH MEHTA for Respondent(s) : 1 –

2.

=========================================================

CORAM

:

HONOURABLE

THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA

and

HONOURABLE

MR.JUSTICE J.B.PARDIWALA

Date

: 01/08/2011

CAV

JUDGMENT

(Per

: HONOURABLE MR.JUSTICE J.B.PARDIWALA)

1. In

this appeal, the appellant herein, original respondent(husband), seeks to challenge judgment and order dated 04.05.2010 passed by the learned Single Judge in Special Civil Application No.3054 of 2010 whereby, the learned Single Judge passed an interim order in a petition preferred by the respondent herein (wife) enhancing the amount of maintenance from Rs.3000/- to Rs.7500/- and awarding an amount of Rs.10,000/- towards maintenance for the daughter.

2. Facts

relevant for the purpose of deciding this appeal can be summarized as under:-

2.1.

The appellant herein and respondent No.1 are husband and wife. Respondent No.2 is the minor daughter of the appellant and respondent No.1. Appellant got married with respondent No.1 on 16.05.1993 and out of the wedlock, respondent No.2 was born on 24.06.1994. It appears that due to some maladjustment in the marital life of appellant and respondent No.1, respondent-wife was constrained to leave her matrimonial home along with her minor daughter and started residing at her parental home. Appellant herein is a businessman engaged in the business of home appliances in the name of Dharam Distributors and is

carrying on his business in two shops in the city of Surat.

2.2. Record reveals that

respondent-wife had preferred H.M.P. Suit No.54 of 2009 for a decree of divorce in the Court of learned Principal Senior Civil Judge, Navsari under the provisions of Section 13(1) of the Hindu Marriage Act. In the said suit, wife preferred an application Exh.5 for interim maintenance of Rs.10,000/- each i.e. for herself and for the maintenance of her minor daughter under Section 24 of the Hindu Marriage Act, 1955.

2.3. It appears that learned Principal Senior Civil Judge, Navsari, partly allowed the application Exh.5 vide order dated 16.02.2010 wherein an amount of Rs.3000/- per month was awarded in favour of the wife towards her maintenance whereas no maintenance was fixed for the minor daughter.

2.4. Aggrieved by the said order passed by the learned Principal Senior Civil Judge, Navsari, wife preferred Special Civil Application No.3054 of 2010. The learned Single Judge took notice of the fact that not a single penny towards maintenance has been awarded for the well-being and welfare of the daughter i.e. respondent No.2. The learned Single Judge also took notice of the fact that the daughter at present, is studying in Standard-XII. The learned Single Judge also took into consideration the fact that a very meager amount of Rs.3000/- has been awarded towards maintenance of the wife and, therefore, under these circumstances, thought fit to pass the following order:-

“5.0 Taking into

consideration the fact that the daughter is in standard XII, she will be required to pursue her studies with the help of extra expenses of tuition fees etc. This Court is of the opinion that by an interim order, the respondent is required to be directed to pay the maintenance to the daughter also.

5.1 The

amount awarded by the Court below of Rs.3,000/- as maintenance to the mother is increased to Rs.7,500/- (Rupees Seven thousand five hundred) and an amount of Rs.10,000/- (Rupees Ten thousand) for the daughter is directed to be paid by the respondent on or before 7th of every month including the month of May 2010. The question of issuance of direction to pay maintenance from the date of application is kept open.”

2.5. Aggrieved by the

said interim order passed by the learned Single Judge, the husband is before us in this appeal.

3. Taking into

consideration the fact that this being a case of matrimonial dispute between the husband and wife and also taking into consideration the fact that the appellant and respondent No.1 have a daughter aged about 17 as on today, studying in standard XII, we thought fit to hear the parties in person for the purpose of exploring the possibility of some amicable solution or settlement. On 24.06.2011, we passed an order directing the appellant and respondent No.1 to remain present in the Court along with their child-Dhruvi (respondent No.2) on the next date. On 29.06.2011, we took up the proceedings in camera and discussed the matter separately to find out the ways and means to settle the matter amicably.

4. On 04.07.2011, when

the matter was once again taken up for hearing in camera, a statement was made on behalf of appellant that he intends to settle the dispute on payment of lumpsum amount of Rs.8 lacs as full and final settlement. We also inquired from the respondent No.1-wife, about the proposal put forward by the appellant-husband and respondent No.1 willingly agreed to accept the lumpsum amount of Rs.8 lacs. We, therefore, passed the following order on 04.07.2011:-

“When the matter

was taken up, Dharmeshbhai Dolatrai Desai (husband) and Hetalben @ Doli Dharmeshbhai Desai (wife) appeared in person along with their daughter Dhruvi Dharmeshbhai Desai, aged 17 years. Due to persuasion of their well-wishers, friends, etc., they intend to settle the dispute by converting the `petition for divorce’ as a `petition for divorce by mutual consent’ under Sec.13-B of the Hindu Marriage Act, 1955 on the following terms and conditions:

(i) The allegations made

by the parties in their respective petition for divorce and written statement or any reply made therein or by way of additional affidavit shall be withdrawn.

(ii) Any other

litigation filed between Dharmeshbhai Dolatrai Desai (husband) and Hetalben @ Doli Dharmeshbhai Desai (wife), including criminal case, etc, shall be withdrawn.

(iii) Dharmeshbhai

Dolatrai Desai (husband) has agreed to pay a lump-sum of Rs.8,00,000/- (Rupees Eight Lacs only) as full and final settlement by two separate Demand Drafts, one in favour of Dhruvi Dharmeshbhai Desai (daughter) for Rs.4,00,000/- (Rupees Four Lacs only) and another Demand Draft in favour of Hetalben @ Doli Dharmeshbhai Desai (wife) for Rs.4,00,000/- (Rupees Four Lacs only).

(iv) Hetalben @ Doli

Dharmeshbhai Desai (wife) will not claim any maintenance in future.

(v) The amount paid to

the Dhruvi Dharmeshbhai Desai (daughter) would be utilized for the purpose of her marriage.

(vi) This agreement will

not stand in the way of Dhruvi Dharmeshbhai Desai (daughter) so far as her rights, inheritance, etc. are concerned.

Dharmeshbhai Dolatrai

Desai (husband) stated that he can pay a sum of Rs.4,00,000/- (Rupees Four Lacs only) in favour of Dhruvi Dharmeshbhai Desai (daughter) by 11.08.2011. According to Hetalben @ Doli Dharmeshbhai Desai (wife) the amount of her maintenance should be paid on or before 11.09.2011, but Dharmeshbhai Dolatrai Desai (husband) asked for some more time, i.e. approximately six months. In such case, her claim for monthly maintenance be paid till the sum of Rs.4,00,000/- (Rupees Four Lacs only) is paid.

We are of the view that

the matter should be sorted out by the parties by the next date. We may only mention that till the amount is not paid, the petition for divorce cannot be disposed of and the petition for divorce will remain pending. Dharmeshbhai Dolatrai Desai (husband) will be liable to pay the monthly maintenance as ordered by this Court. Post the matter on 11.07.2011 at 02.30 p.m. in Chamber.”

5. On

18.07.2011, when the matter was once again taken up for hearing, learned counsel Ms.Kruti M. Shah, appearing for the appellant, submitted that she wants to withdraw herself from the case as the appellant wants to resile from the assurance he had given before the Court for payment of Rs.8 lacs towards full and final settlement for the maintenance of his wife and daughter. The appellant-husband was present in-person and submitted that he is not in a position to pay total amount of Rs.8 lacs.

6. Under such

circumstances, we had recorded that parties have not been able to reach to an amicable settlement and, therefore, we will now proceed to hear the case on merits. As learned advocate Ms.Kruti Shah retired from the matter, we also gave an opportunity to appellant-husband to engage some other lawyer.

7. On 25.07.2011, the

matter was once again taken up for hearing.

8. Today, learned

advocate Mr.Apurva A. Dave, appeared for the appellant-husband. He submitted that the husband has a very small business and his financial condition is also not sound. He also submitted that it is not possible for the husband to pay monthly maintenance to the tune of Rs.17,500/-. He submitted that the order passed by the learned Principal Senior Civil Judge, Navsari below Exh.5 in H.M.P. Suit No.54 of 2009 is just and proper and without any justifiable reasons, the learned Single Judge has disturbed the said order and has enhanced the amount of maintenance from Rs.3000/- to Rs.7500/- and additionally has also awarded sum of Rs.10,000/- towards the maintenance of minor daughter. He further submitted that the learned Principal Senior Civil Judge, Navsari rightly did not pass an order granting maintenance for the minor daughter as there was no application made under Section 26 of the Hindu Marriage Act for maintenance of the minor child. He would submit that this aspect has been completely overlooked by the learned Single Judge.

9. Per contra, learned

advocate Mr.Dakshesh Mehta, appearing for the wife, submitted that the interim order passed by the learned Single Judge dated 04.05.2010 is just and proper and does not deserve any interference by this Court in the present appeal. He would submit that the appellant-husband wants to shirk away from his legal as well as moral responsibility of maintaining his wife and minor daughter. He would submit that the respondent-wife preferred an application though purporting to be under Section 24 of the Act containing an independent prayer for the maintenance of the minor daughter which clearly means that the power of the Court under Section 26 of the Act for granting interim maintenance for the minor daughter was also invoked in the application. He further submitted that the appellant has a lucrative business of home appliances and is having two big shops in the city of Surat. He also submitted that he has made huge investment in various assets and fixed deposits. He submitted that on the other hand respondent-wife has no means of income as both the parents, who were serving, have now retired. He further submitted that the income tax returns produced before the Court below are evident of the fact that the gross profit for the financial year ended to 31.03.2008 was Rs.4,36,378/-. He would submit that while calculating the maintenance, gross income should be considered.

10. Having

heard the learned advocates appearing for the respective parties and also having perused the record, we are of the view that the learned Single Judge has rightly enhanced the amount of interim maintenance from Rs.3000/- to Rs.7500/- in favour of the wife and in our opinion, has rightly awarded an amount of Rs.10,000/- for the minor daughter. It is very clear on perusal of application Exh.5 i.e. the application preferred under Section 24 of the Hindu Marriage Act was a joint application preferred by the respondent No.1-wife and respondent No.2-daughter. In the said application, it has been prayed that the Court may pass an order directing the husband to pay a sum of Rs.10,000/- each to wife and the daughter towards maintenance pending the final disposal of the Hindu Marriage Petition No.54 of 2009. The contention that in the application preferred by the respondent-wife jointly with minor daughter the Court has no powers to pass an order granting maintenance for the minor child, cannot be accepted for the same reason that under Section 26 of the Hindu Marriage Act, the Court is empowered from time to time to pass interim orders, inter alia, for maintenance and education of the minor children. Section 26 does not even require any application being made for such purposes and the Court itself can make interim orders for maintenance of the minor children under the said Act. Therefore, even if there was no application made under Section 26 of the Act for maintenance of the minor daughter, the Court could have validly awarded the maintenance for the minor daughter. The application preferred by the respondent-wife, though purporting to be under Section 24 of the Act, contained prayer for the maintenance of the minor daughter which clearly means that the power of the Court under Section 26 of the Act for granting interim maintenance for the minor daughter was also invoked in the application.

11. Mere non-mentioning

of the provision of Section 26 would make no difference. Apart from this, as observed above, even without any application under Section 26 of the Act, a Court is empowered to make suitable interim orders regarding maintenance of a minor child in a proceeding under the said Act.

12. We are also of the

view that amount of Rs.17,500/- per month towards maintenance of wife and minor daughter, studying in Standard-XII, cannot be said to be, in any manner, unreasonable or on a higher side. We are informed that the appellant-husband has bought a brand new car (Mahindra Logan) worth about Rs.6 lacs. If the appellant-husband can afford to buy a brand new car worth about Rs.6 lacs, then he can definitely pay an amount of Rs.17,500/- per month towards interim maintenance for the well-being of his wife and minor daughter.

13. In case of Kirtikant

D. Vadodaria V/s. State of Gujarat reported in (1996)4 SCC 479, the Supreme Court observed as under:-

“According

to the Law of the Land with regard to maintenance, there is an obligation of the husband to maintain his wife which does not arise by reason of any contract -express or implied – but out of jural relationship of husband and wife consequent to the performance of marriage. Such an obligation of the husband to maintain his wife arises irrespective of the fact whether he has or has no property, as it is considered an imperative duty and a solemn obligation of the husband to maintain his wife. The husband cannot be heard saying that he is unable to maintain due to financial constraints so long as he is capable of earning.”

(Emphasis

supplied by me)

14. In the case of

Chitra Sengupta V/s. Dhruba Jyoti Sengupta reported in AIR 1988 Calcutta 98 in para 4, the Division Bench held as under:-

“4. Class-less

society being still a very far cry and the society we live in being class-ridden to the extreme, the question as to what income is sufficient for the support of a wife, would, whether one likes it or not, has to be determined with reference to the class she and her husband belong to. And, therefore, what may be considered to be sufficient for the support of the wife of a petty clerk would not be regarded to be sufficient for the support of the wife of a high-salaried big officer. “To support” lexically means to supply with necessaries and as S.68, Contract Act, would show necessaries in respect of a person must be “suited to his condition in life”. And as was held by a Division Bench of this Court in construing that Section in Jagon Ram v. Mahadeo Prosad (1909) ILR 36 Cal 768 at p. 777, necessaries would include everything necessary to maintain a person in the state, station or decree of life in which he is and being thus a relative expression must be determined with reference to those factors. It has been held by an another Division Bench of this Court in Surendra Nath v. Puspa, (1978) 2 Cal LJ 602 at p. 604, that the quantum of maintenance pendente lite under S.24, Hindu Marriage Act, would depend on various factors “such as, the ability of the husband, the needs of wife, the social status, age, education and other requirements”. It may also be noted that under S.23(2), Hindu Adoptions and Maintenance Act, 1956, in determining the amount of maintenance to be awarded to a wife, the first thing the Court would have to regard to is “the position and the status of the parties”. We are of the view that if the amount of maintenance awardable to the wife is to depend on the status and station of the husband, the amount which can be regarded to be sufficient for her support must also depend on and vary with the status and station of the husband. We would accordingly hold that the expression “income sufficient for her support” in S.24 of the Act would not mean only such amount as would be sufficient for the wife to eke out her existence at the subsistence level, but would cover such amount as would be necessary for the necessaries suited to the status and station which the wife would have enjoyed as the wife of the respondent-husband.”

15. In

the case of Smt.Padmavathi and others V/s. C. Lakshminarayana reported in AIR 2002 Karnataka 424, learned Single Judge observed in para 11 as under:-

“11. In S. 24 of

the Act, the Legislature intentionally has used the expression ‘maintenance’ of the spouse during the pendency of the proceedings under Hindu Marriage Act. The term maintenance has been used in a wide sense to include provision for food, clothing, residence, medical attendance and treatment etc. In my view, while using those expression, the Legislature must have kept in view the verdict of the Hindu Sages and the ‘Manu’ that the obligation to maintain the wife does not arise out of any contract express or implied, but out of status of the marriage and that obligation begins with the marriage and it cannot be refused on the ground that his financial condition is not good and a Hindu wife is entitled to maintenance, even if she lives separately from her husband for justifiable cause.”

16. The

Division Bench of Madhya Pradesh High Court in the Case of Durga singh Lodhi V/s. Prembai reported in 1990 Cri LJ 2065, was pleased to observe: (At Pp.2066-67)

“It includes

capacity to earn money. A healthy and able-bodied person but without any visible or real property must be held as having means to support his wife or child. Once a person has capacity to earn, he cannot escape his liability to maintain under S.125(1). A Full Bench of the Rangoon High Court, in Maung Tin v. Ma Hmin, AIR 1933 Rang 138 : (1933) 34 Cri LJ 815 held that sufficient means is not confined to pecuniary resources. This view was shared by the Nagpur High Court in Abdul Wahab v. Sugrabi, (1936) 37 Cri LJ 86. The Madhya Bharat High Court, in Prabhulal v. Parwatibai, AIR 1952 Madh Bha. 96 : (1952 Cri LJ 868) even went to the extent of saying that mere minority or the fact that the husband does not work cannot come in the way of grant of maintenance to the wife. What should be ascertained is the earning capacity of the husband, if he is compelled to work, ‘Means’, of course, has to be sufficient to maintain. An able bodied person in our opinion, must be held as having sufficient means to maintain and it will always be for such a person to prove to the contrary. The view taken by the Delhi High Court, in Chander Prakash v. Shila Rani, AIR 1968 Delhi 174 : 1968 Cri LJ 1153 in this regard, is that an able bodied young man must be presumed to be capable of earning sufficient money so as to be able to reasonably maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able bodied person to show to the Court cogent grounds for holding that he is unable, for reasons beyond his control to earn enough to discharge his legal obligation of maintaining his wife and child. We are, therefore, of the firm opinion that as a person cannot avoid his liability under S.125(1), Cr. P.C. merely because he has no tangible real property or income, but is otherwise able bodied and healthy and has capacity to earn. The presumption should be that such an able bodied and healthy person has capacity to earn. The presumption should be that such an able bodied healthy person is possessed of sufficient means and it is for him to show that by accident, disease or the

conditions of labour

market or otherwise, he is not capable of earning anything.”

17. We are constrained

to observe from the attitude exhibited by the appellant-husband that at any cost, he does not want to discharge his legal obligation to maintain his wife and minor daughter. We feel that the appellant-husband resiled with impunity from the statement he made that he is ready and willing to pay a sum of Rs.8 lacs towards full and final settlement of the matter.

18. In the above view of

the matter, we hold that the appellant-husband is not entitled to any relief. We do not find any error or any infirmity in the order passed by the learned Single Judge. We, therefore, dismiss this appeal with no order as to costs.

19. Before parting, we

make it clear that the appellant-husband will keep on paying the sum of Rs.17,500/- per month towards interim maintenance as ordered by the learned Single Judge vide order dated 04.05.2010 passed in Special Civil Application No.3054 of 2010.

20. In light of the fact

that main appeal has been ordered to be dismissed, Civil Application would not survive and the same is accordingly disposed of.

(S.J.

MUKHOPADHAYA, CJ.)

(J.B.PARDIWALA,

J.)

Hitesh

Top

Advertisements
Categories: Judgement
  1. No comments yet.
  1. No trackbacks yet.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: