Rakesh Jain Vs. Rakesh Jeetmal Jain  INSC 511 (20 July 2010)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5660 OF
2010 (Arising out of SLP (C) No. 6736 of 2007) Neeta Rakesh Jain .... Appellant
Rakesh Jeetmal Jain ....Respondent
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.
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.
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.
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.
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.
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.
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 extenso and accepting the husband's
statement that he was getting Rs. 30,000/- per month, fixed an amount of Rs.
12,000/- per month as interim maintenance to the wife.
Section 24 of the Act makes a provision for maintenance pendent
lite and expenses of proceedings. It reads thus:- "S.24.- Maintenance
pendent lite and expenses of proceedings.- Where in any proceeding under this
Act it appears to the court that either the wife or the husband, as the case
may be, has no independent income sufficient for her or his support and the
necessary expenses of the proceeding, it may, on the application of the wife or
the husband, order the respondent to pay to the petitioner the expenses of the
proceeding, and monthly, during the proceeding such sum as, having regard to
the petitioner's own income and the income of the respondent, it may seem to
the court to be reasonable.
that the application for the payment of the expenses of the proceeding and such
monthly sum during the proceeding, shall, as far as possible, be disposed of
within sixty days from the date of service of notice on the wife or the
husband, as the case may be."
Section 24 thus provides that in any proceeding under the Act, the
spouse who has no independent income sufficient for her or his support may
apply to the court to direct the respondent to pay the monthly maintenance as
the court may think reasonable, regard being had to the petitioner's own income
and the income of the respondent. The very language in which Section is couched
indicates that wide discretion has been conferred on the court in the matter of
an order for interim maintenance. Although the discretion conferred on the
court is wide, the Section provides guideline inasmuch as while fixing the
interim maintenance the court has to give due regard to the income of the
respondent and the petitioner's own income. In other words, in the matter of
making an order for interim maintenance, the discretion of the court must be
guided by the criterion provided in the Section, namely, the means of the
parties and also after taking into account incidental and other relevant
factors like social status; the background from which both the parties come
from and the economical dependence of the petitioner. Since an order for
interim maintenance by its very nature is temporary, a detailed and elaborate
exercise by the court may not be necessary, but, at the same time, the court
has got to take all the relevant factors into account and arrive at a proper
amount having regard to the factors which are mentioned in the statute.
In a case such as the present one, the stand of the husband that
he is drawing salary of Rs. 30,000/- per month from the company since August
2005 is inherently improbable. The husband is highly qualified; he is CA, ICWA,
CIMA and has also completed course of Computer Information Technology. He has
worked with renowned and big companies like M/s. Kimberly Clark and M/s. Tata
Technology as Finance Manager and Senior SAP Consultant respectively before he
started on his own in January, 2000. He did not leave the job due to any compulsion
but because he wanted to grow big. He has admitted that having worked for six
years, he decided to do his own business and started the company, namely, M/s. Paysquare
Consultancy Limited in which he has sought financial/administrative help of his
brother and one Ms. Nilima Apte. How can it be believed that a person who has
started his own business leaving the job in 2000 would start drawing the salary
of Rs. 30,000/- per month from the company from August, 2005? The High Court
has not taken into consideration these vital aspects and accepted the statement
of the husband that he was drawing salary of Rs. 30,000/- per month as a gospel
truth. Insofar as wife is concerned, it appears that she does not have any
settled job; she has worked at few places for few months. We think this is
eminently a case in which the High Court must reconsider the wife's application
for interim maintenance.
Accordingly, this appeal is partly allowed, the impugned order
dated September 21, 2006 is set aside and Civil Application No. 107 of 2006
made by the wife for interim maintenance is restored to the file of the High
Court for fresh consideration. We expect the High Court to dispose of the
application for interim maintenance expeditiously and before it proceeds with
the hearing of the main appeal, being Family Court Appeal No. 10 of 2006. The
cost of the appeal is quantified at Rs. 20,000/- (Rupees twenty thousand) which
the respondent shall pay to the appellant within one month from today.
...........................J. [AFTAB ALAM]
............................J. [R.M. LODHA]
July 20, 2010.