Vinayak Baban Parab v. Snehal Vinayak Parab

1. The Petitioner–husband challenges the order dated 04.08.2023, passed below Exhibit–17 by the Family Court, Thane, in Marriage Petition No. A–364 of 2022. The Judge, Family Court, Thane, vide impugned order dated 04.08.2023, has directed the Petitioner–husband to pay monthly interim maintenance of Rs.15,000/- per month to the minor child Neel from the date of Application dated 18.02.2023, till final disposal of main Petition. Rajeshri Aher

2. The Petitioner–husband is original Petitioner in Marriage Petition filed by him before the Family Court, Thane, under Section Section 13(1) (i-a) of the Hindu Marriage Act, 1955, praying for decree of divorce on the ground of cruelty. The Respondent is the wife of the Petitioner. The Petitioner–husband is running a business of computer sales and services since 2009. He holds diploma in Computer Technology. The Respondent–wife is Bachelor of Engineering and Electronics. According to the Petitioner–husband, the Respondent–wife was working as Software Tester and earning handsome salary prior to the marriage. The parties got married on 02.12.2012 and on 30.09.2014, the Respondent–wife gave birth to a baby boy. Since the marriage of the parties was wrecked beyond salvage, therefore, the Petitioner–husband by invoking Section 13(1) (i-a) of the Hindu, Marriage Act, 1955, filed Petition for decree of Divorce in the Family Court, Thane, on the ground of cruelty.

3. During the pendency of the Hindu Marriage Petition, the Respondent–wife filed an application for interim maintenance under Section 26 of the Hindu Marriage Act, 1955. The Petitioner–husband filed reply to the Application and vide order dated 04.08.2023, the Application was partly allowed by the Judge, Family Court, Thane, by directing the Petitioner–husband to pay maintenance of Rs.15,000/per month from the date of Application.

4. It is the contention of the Petitioner–husband that, the Application filed by the Respondent–wife is totally frivolous, baseless and not at all tenable. The learned Judge, Family Court, Thane, has failed to take into consideration that the Petitioner–husband is earning only Rs.42,500/- per month. The Judge, Family Court, Thane, has committed a grave error by holding that he is earning Rs.2,00,000/- per month. The said finding is without any basis and supported by any evidence. The learned Judge, Family Court, Thane, while passing the order has taken into consideration mere credit entries, and has not taken into consideration the debit side, resulting into miscarriage of justice.

5. Moreover, the break up of the expenses of the child was not given by the Respondent–wife in the Application, nor was it considered by the Judge, Family Court, Thane, while arriving at the figure of Rs.30,000/- per month. There is no cogent reason for coming to the conclusion about the monthly expenses of a child, who belongs to a middle class family. Apart from the Respondent–wife and the child, the Petitioner–husband has the responsibility of his mother as well, to be maintained his limited income of Rs.42,500/- per month. It is difficult for him to carve out Rs.15,000/- per month from his income of Rs.42,500/-. It is further submitted that despite his limited resources, the Respondent-wife is claiming expenses of Rs.30,000/for the child. The Judge, Family Court, Thane, has granted maintenance of Rs. 30,000/- without verifying the actual expenses, which exceeds the total expenses claimed by the Respondent.

6. Per contra, the learned advocate for the Respondent-wife submits that she has been taking care of the child Neel, since birth, and bearing the majority of the expenses. The Petitioner–husband had clearly given an understanding that he will only pay the school fess every alternate year.

7. The Respondent-wife alleges that despite having a strong financial position, with established businesses in CCTV sales and installation, laptop sale, and repairs, the Petitioner-husband is refusing to provide maintenance and bear necessary expenses for their only child. According her, the net profit of the Petitioner– husband from his business is approximately Rs.1,50,000/- every month. He does not have any other responsibilities. His mother is an LIC and Post office agent, who earns good income.

8. It is contended by the Respondent–wife that the school fees for the last academic year of 2021–2022 amounting to Rs.41,000/- has been paid by her. Apart from the school fees, the child has many other needs; such as food, clothing, medicines, school books, extra curriculum classes, tuitions, transportation etc. It is her contention that the Petitioner–husband has miserably failed to discharge his responsibility, as a father. Despite his flourishing business, she is left to her father's mercy, due to insufficient amount of maintenance. It is, therefore, prayed by the respondent–wife that the child neel is entitled to get monthly maintenance of rs.30,000/- per month, as per the standard of living of the petitioner–husband as provided under section 26 of the hindu marriage act, 1955.

9. Upon consideration of the rival claims, the Judge, Family Court, Thane, has allowed the Application vide order dated 04.08.2023.

10. I have heard the respective counsel and after hearing the respective parties and perusing the impugned order, it is evident from the affidavit of assets and liabilities that the Petitioner–husband has disclosed his income in his affidavit to be Rs.42,500/- per month, from his business of computer sales and services. He has also filed Income Tax Returns (ITR). In the year 2021 the total income disclosed by the Petitioner–husband is Rs.1,33,900/-, in 2020-21, in the year 2021-22 Rs.4,77,210/-, in the year 2022-023 the total income disclosed by him as Rs.5,10,680/-. He has placed reliance on his ITR in support of his contention that he is not earning Rs.1,50,000/- per month, as claimed by the Respondent–wife.

11. Though it is claimed by him, on the basis of the ITRs placed on record that, he is not earning more than Rs.42,500/-, per month. The Bank statement placed by him on record falsifies his claim. In the Bank statement of the HDFC Bank, of the Petitioner–husband for the period from 01.04.2020 to 31.03.2021, reflects entry of deposit of Rs.1,80,000/- on 10.05.2020. The other entries of amount ranging from deposit of Rs.50,000/- and Rs.21,731/- are shown on 08.02.2021 and two amounts of Rs.20,930/- and Rs.19,514/- deposited on 09.02.2021, alongwith other entries of amount ranging from Rs.1,000/- to Rs.10,000/- as can be seen. Various amounts are deposited in his account during that period. The learned Advocate for the Respondent–wife has pointed out various entries of deposit’s in his account, the total of which does not in any manner tally with the ITRs filed by the Petitioner–husband. It is time and again held by the High Courts as well as the Supreme Court that the ITR do not reflect the correct income of the parties. Therefore, it is not always reliable.

12. As against the affidavit of Petitioner–husband, the Respondent– wife has disclosed her monthly expenses to be Rs.86,000/- including EMIs and child expenses. The child expenses are shown as Rs.23,250/-. In her affidavit, she has mentioned an amount of Rs.23,250/- towards school fees and daily expenses incurred for the child under the head of ‘Details of Dependent Family Members’.

13. The child ‘Neel’ has been named as a ‘Dependent’ for whom necessary expenses are categorically shown as Rs.23,250/-. She has also shown that she has obtained housing loan for an amount of Rs.17,42,560/- for the flat at Om Residency, which is in 1 RK flat at Diva East, Thane, along with loan of Rs.34,38,000/- for the EGH 1 BHK, Parsik Nagar, Kalwa East, Thane. Due to the loan EMIs, she claims she is unable to bear all the expenses of their child Neel.

14. After perusal of the documents on record and the order impugned, though there are allegations and counter allegations by the Petitioner and the Respondent against each other, but the fact remains that in the affidavit filed by the Respondent, the expenses for the child disclosed in the affidavit of assets and liabilities filed by her in more than one column is shown as Rs.23,000/-. Therefore, the Respondent has failed to justify her claim of monthly expenses of Rs.30,000/- in her affidavit of assets and liabilities. The Judge of the Family Court has failed to support with reason the amount of Rs.30,000/- granted towards expenses of the child ‘Neel’. By recording the net income of the parties which according to the learned Judge was Rs.69,758/- and Rs.2,00,000/- respectively, on the basis of the rough income of the parties, the Judge Family Court has recorded that it would be just and proper to award an amount of Rs.30,000/- per month.

15. The Judge, Family Court, Thane, without providing any reasons for grant of Rs. 30,000/- per month, has awarded the said amount to the child, despite the claim being contrary to the expenses she herself disclosed in her affidavit of assets and liabilities. Based solely on the Respondent-wife's claim that the Petitioner-husband earns approximately Rs. 2,00,000/- per month, the Judge, Family Court, Thane, held that considering the income of both parties, the husband's liability for his child's educational expenses, and their status and needs, it would be a just and proper to grant maintenance of Rs.30,000/- per month for the child. These findings are without any basis and reasoning since it is clearly based on the income of the parties and not on the needs of the child.