Shirish H. Garg vs Nidhi S. Garg
2010 Latest Caselaw 156 Bom

                                              1                         WP.4641/2010

    mnm

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                   
                    APPELLATE CIVIL JURISDICTION




                                                           
                      WRIT PETITION NO.4641 OF 2010

    Shirish H. Garg                                      ...Petitioner 
                                                         (Orig. Respondent)




                                                          
          Vs.

    Nidhi S. Garg                                        ...Respondent
                                                         (Orig. Applicant)




                                                 
    Mr. R.S. Apte i/b. Mr. V.P. Patankar, Advocate for Petitioner
                               
    Mr. A.M. Vernekar, Advocate for Respondent

                                       CORAM : SMT. ROSHAN DALVI, J.

DATED : 16TH NOVEMBER, 2010

ORAL ORDER:

1. This Petition is filed by the husband challenging the order of

maintenance passed by the Family Court, Bandra, Mumbai on 1st April 2010 for the interim maintenance under Section 24 of the Hindu Marriage Act of his wife.

2. The husband is in business. The wife has no independent source of income. The husband runs three family businesses.

These are shown on the Website of the husband as well as the Company. The husband owns a car and has purchased a share in a property which initially belonged to his joint family for his residence. The parties have been engaged and married in a

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five star hotel. The husband's bank account shows large deposits and withdrawals. He pays separate electricity bills of

large amounts of his residential premises. The husband also has Life Insurance Policy. He has several employees whose

provident fund is paid and an immovable property for which property taxes and municipal taxes are paid. These are

reflected in the supporting documents produced by the wife being his bank pass book, the employees provident fund book, the LIC Policy, the property tax receipt, municipal tax receipt,

Website details etc.

3. The husband has not disputed the separate 3 or 4 businesses of

the family in which he has a share. He has also not disputed the Website of the business concerns. He has instead sought to show his income under the income tax returns filed by him as

also the company.

4. The determination of maintenance is dependent upon

consideration of the Petitioner's own income and the income of the Respondent under Section 24 of the Hindu Marriage Act which runs thus:

"24. Maintenance pendente 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

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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".

5. Upon considering the interim application for maintenance the

wife is given a share in the income of the husband and not his properties. The husband, therefore, contends that only his

income, as reflected in the individual income tax returns filed by him as also the returns of the businesses run by him, can be seen by this Court and the Family Court.

6. The Family Court has considered the aforesaid businesses, the expenses for purchase of movable and immovable properties

the debit and credit entries in his bank account and the Website details of the Petitioner himself and his businesses to ascertain the approximate income of the Petitioner.

7. The ascertainment of the income has to be done judiciously and sensibly. It cannot be done arbitrarily or only

arithmetically. The consideration of the income contemplated under the Section does not mean that only the numerical figures shown in the income tax returns of a party can be taken

for the gospel. The husband contends, from his income tax returns which are shown to Court, that he earns approximately Rs.2 lakhs a year. This would constitute an income of approximately Rs.16,000/- per month. In this income the husband would not be expected to have the bank account that

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is shown to Court, the car which he owns, the share in the joint family property that he has purchased, the exports that he has

made, the expenses for the electricity that he has paid or the property taxes that he has incurred or the employees whom he

supports in several firms.

8. Details of four firms are provided by the wife and considered by the learned trial Judge. The biodata of the husband as well as Website details of the firms show the goodwill of the firm

acquired since its establishment in 1963. This is reflected in

the name of the firms and the products that they produce. The Website of the firm boasts of its leadership in glass industries

with regard to the quality of the products and its exports. It shows export market in various foreign countries on four continents. It is shown to have 51 to 100 employees, 1000 to

3000 sq. mtrs. of factory size, with various production lines,

estimated annual sales below one Millon US Dollars. These are export oriented firms manufacturing products of ISO

certification. They are shown to be pioneers in glass industry. The firms carry businesses in separate immovable properties shown as head office as well as branch office at Goregaon as

well as Kandivali, Mumbai. The Website shows the husband to be the contact person in the firms.

9. The individual Website of the husband shows his position of responsibility in expanding the family businesses which has

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proved to be a "boon" for the four companies mentioned therein.

10.His residential address is shown in Dawawala Bungalow of

800 sq. yds. The husband claims that that is the joint family property. It belongs to four brothers including the husband's

father. The husband has purchased ¼ share of one of the other brother of his father. That share is reflected in his income tax returns. That share must be taken to be at least approximately

of 2000 sq. ft in area being ¼ of the total area of the bungalow.

The husband has valued it at little over Rs.3 lakhs in his income tax returns which valuation would be impossible to

accept, given the current market rates of real estate.

11.The parties got engaged and married in Hotel Sea Princess,

Juhu besides having other related social wedding ceremonies.

This fact is reflected in the invitation cards produced by the wife and not denied by the husband.

12.The bank account statement of the Indian Overseas Bank shows various debit and credit entries of thousands and even

lakhs of rupees which have remained unexplained. Mr. Vernekar on behalf of the wife drew my specific attention to these entries which belie the net income shown to have been earned by the husband as reflected in his income tax returns completely. e.g., in quarter between April 2007 to June 2007

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about Rs. 8 lakhs have been deposited into his account and are soon thereafter withdrawn. It appears essentially for travel

purpose as reflected from the debit entries in favour of the Kuoni Travels. The credit entries are seen to be from other

saving accounts, the numbers of which are shown against those entries. This shows that the husband has at least four other

accounts from which amounts have been transferred to the only bank account which is on record. There is also a LIC policy of the husband of Rs. 4 lakhs.

13.These supporting documents, therefore, falsify the tax returns produced by the husband. Mr. Apte on behalf of the husband

went through the income tax returns. The arithmetical entries by themselves do not show the true income of the husband and must be rejected.

14.Mr. Vernekar on behalf of the wife rightly argued that if the husband earns approximately Rs.16,000/-per month he would

not be expected to have an LIC Policy of Rs. 4 lakhs, pay the electricity bills of a few thousands of rupees each month, purchase 1/4th share of his uncle in the joint family property,

own a car and maintain the bank account showing large debit and credit entries.

15.The learned Judge has, therefore, correctly considered how the income sought to be shown by the Petitioner cannot be

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accepted in view of the movable and immovable properties owned, possessed and maintained by the Petitioner. The

reasoning of the learned Judge is correct. The income of a party before the Court has to be evaluated from the evidence

produced by the parties as a whole. It should not be a figure which would insult the intelligence of the Court as being

wholly contrary to commonsense. Hence this must include consideration of the properties of the husband, movable and immovable, which would reflect his income. It may be

mentioned that the properties of the husband has to be

considered to that end though the wife is not given a share in those properties at the interim stage.

16.The impugned order has considered the earlier order passed in favour of the wife by the learned Magistrate's Court granting

maintenance under the Domestic Violence Act. The impugned

order has granted further maintenance taking into account the earlier maintenance granted.

17.The husband failed to pay the maintenance altogether until he was directed to deposit the arrears in this Court.

18.It may be mentioned that upon strict evaluation of evidence produced by the parties at the final hearing of the Petition when the husband would have to stand trial that even more evidence of his hitherto concealed income may surface. At the

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interim stage appreciation of the evidence on record can only allow the Court to arrive at a reasonable figure of the income

which the husband is seen to be earning when the entire income is not shown to Court and in fact sought to be

suppressed, specially in case of businessmen such as the husband in this case. The extent of the income reasoned by

the learned Judge at the interim stage based upon the intrinsic evidence in this case is most reasonable and proper. Mr. Apte's contention that it is based on conjunctures must, therefore, be

rejected.

19.Consequently, the impugned order is correct and the challenge

cannot be maintained.

20.Hence the order:

1. The Writ Petition is dismissed.

2. Wife shall be entitled to withdraw the amount of arrears

deposited by the husband in this Court.

3. The husband shall continue to pay the maintenance pending the Petition as directed in the impugned order.

(SMT. ROSHAN DALVI, J.)