Rippal Harbanslal Suneja vs Vibhuti Rippal Suneja
2017 Latest Caselaw 8019 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION

                          WRIT PETITION NO. 2916 OF 2017

Rippal Harbanslal Suneja                        ]
Age- 50 Years, Occ. Nil,                        ]
R. at 1/A, 1203, N.G. Suncity,                  ]
Phase II, Thakur Village,                       ]
Kandivali (E), Mumbai - 400 001                 ]
And also at
C/o. Mrs. Janak Suneja,                         ]
Flat No.505, 5th Floor, Dhanlaxmi CHS,          ]
Upper Govind Nagar, Malad (E),                  ]
Mumbai - 400 0097                               ]        ... Petitioner.

                V/s.

Vibhuti Rippal Suneja                           ]
Age 50 Years, Occ. Household,                   ]
R. at 1A, 1203, N.G. Suncity,                   ]
Phase II, Thakur Village,                       ]
Kandivali (E), Mumbai - 400 001                 ]        ... Respondent.



      •   Mr.Ashutosh R. Gole, Advocate for the Petitioner.
      •   Mr.Jitendra B. Mishra Advocate for the Respondent.


                         CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.

RESERVED ON                      : 05 th OCTOBER, 2017.
PRONOUNCED ON                    : 11 th OCTOBER, 2017.


JUDGMENT :-

1]              Rule. Rule made returnable forthwith.





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2]              With consent of learned counsel for both the parties,

heard finally at the stage of admission itself.

3] By this petition, the order passed by the Family Court

No.2, Mumbai in Petition No. A-2070 of 2015 on 13 th October, 2016 is

challenged by the Petitioner-husband. By the said order, the

Petitioner-husband is directed to pay an amount of Rs.30,000/- per

month as interim maintenance to the Respondent-wife from the date

of filing of the application i.e. 4th January, 2016.

4] Facts leading to the Petition are to the effect that

Respondent, herein, has filed a petition for divorce against the

Petitioner and in the said petition, she has filed an application at

Exh.10 claiming interim maintenance under Section 24 of Hindu

Marriage Act, 1955. She has claimed interim alimony at the rate of

Rs.50,000/- per month for herself and Rs.50,000/- per month to both

the children. She has also given break-up of her expenses in

paragraph No.10 of the Application according to which the total of

the expenses comes to Rs.1,13,650/- per month. However, some of

these expenses are, though claimed to be per month, they appear to

be once in a year.

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5]              Be that as it may, though, the Respondent has claimed

maintenance for her two children also, it is a matter of record that

both the children have become major. The daughter Palomi is a

Dentist with MYDENTIST and earning Rs.10,000/- per month;

whereas the son Karan is also educated and has become major. The

trial Court has thus held that both the son and daughter have lost

their right to claim maintenance and this finding of the trial Court is

not challenged in this petition. The application for maintenance,

therefore, filed by the Respondent was considered only qua herself.

6] The trial Court has, while deciding her application, taken

into consideration the documents filed by the Petitioner, including

the Bank Statement of ICICI Bank showing that various amounts are

withdrawn for household expenses. The Petitioner has also filed his

salary slip for April 2016 and the termination letter dated 22 nd June,

2016. His salary slip showed that he was working with Reliance

Communication Limited and earning gross salary of Rs.2,05,652/-

per month. Much reliance was placed by the Petitioner on the letter

of termination dated 22nd June, 2016 stating that on account of his

unsatisfactory performance, the management has terminated his

services and therefore, it was urged that he is having no source of

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income.

7] The trial Court has, however, taken into consideration,

the earning capacity and potentiality of the Petitioner, which was

reflected in the salary slip of April, 2016 showing his gross salary of

Rs.2,05,652/- per month. The trial Court has then also taken into

consideration the contention advanced by the Petitioner that the

Respondent was a qualified lady, as she was doing a job of

Stenographer and having her own source of income. The trial Court,

however, found that the Respondent has left her job long back in the

year 1996 and since then she has no source of income. Therefore,

trial Court held her entitled for maintenance and having regard to

the standard of living of both the parties and earning capacity of the

Petitioner awarded interim maintenance at the rate of Rs.30,000/-

per month from the date of filing of the application.

8] Against this order of the trial Court, two submissions are

advanced by learned counsel for the Petitioner. In the first place it is

submitted that at the time of deciding the application for interim

maintenance on 13th October, 2016, the Petitioner was not having

any job. The letter of termination of his service from Reliance

Communication Limited was produced on record before the trial

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Court. Therefore, when apparently there was no source of income for

the Petitioner, the impugned order passed by the trial Court, merely

on the basis of his earning capacity and potentiality, cannot be legal

and correct, especially when in this case, the services of the

Petitioner were terminated on account of his unsatisfactory

performance, thereby indicating that he is no more having the

potential or earning capacity, which the trial Court has wrongfully

considered it be so, as to be able to pay maintenance at the rate of

Rs.30,000/- per month. According to the learned counsel for the

Petitioner, on this very ground itself, the impugned order passed by

the trial Court needs to be set-aside.

9] Secondly, it is submitted that, if the earning capacity of

the Petitioner is to be considered, then vise-a-versa the earning

capacity of the Respondent also needs to be considered. It is an

admitted fact that the Respondent was also doing the services in

NOCIL Non Supervisory Employees' Credit Fund, Bombay from 1990

to 1996 as Stenographer. She has resigned from the said job

voluntarily and there is no evidence to show that she has made any

effort to search for another job. In such situation, if one has regard to

her earning capacity and potential, then unless she shows that she is

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not in a position to get the job, her earning capacity also requires to

be considered. According to learned counsel for the Petitioner in case

of a qualified and educated woman like Respondent, she cannot be

expected to sit idle and extract the money from the Petitioner in the

form of alimony, especially when now the Petitioner has also lost his

job.

10] In my considered opinion, however, these submissions

cannot be accepted for the simple reason that though the Petitioner

contends that he has lost his potentiality and earning capacity,

therefore he is removed from the job; the evidence on record shows

that at present he is having better prospects than he was having in

the job. The page of his profile on the FACEBOOK is produced on

record of this case at page No.167 and 168, which shows that he has

joined John Maxwell Team as Certified Coach, Teacher, Trainer and

Speaker and he can offer workshops, seminars, keynote speaking,

and coaching etc for the company. He has stated therein that he has

worked for last 30 years in the Corporate World, having huge and

satisfying experience in the area of business development; out of

which he has spent 26 years in leadership roles, managing

businesses independently and through highly motivated and

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productive teams. As stated therein, currently he is working with 2

progressive clients AdStringO, a successful IT startup company, and

Fabrico, a garmet manufacturing and exporter company, training

and coaching their teams, who are successfully managing their

businesses, worldwide.

11] Thus, it is apparent that, the Petitioner has not lost his

earning capacity or potential but he has gained it with three decades

of experience and exploiting it fully for the purpose of having the

better financial prospectus. Presently also, he is not sitting idly but

he is working in the John Maxwell Team. Therefore, there was

nothing wrong, if trial Court considered his earning capacity and

potential as against the Respondent. The Respondent is not as

qualified as him nor she is having the working capacity, having lost

the job about 20 years back. Therefore his working capacity and

potential is rightly taken in to consideration by the trial Court,

especially having regard to the fact that at present also he is not

sitting idle but earning, may be more than what was his earning

from the job.

12] As regards submission that Respondent is having an

equal earning capacity, the evidence on record shows that she has

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resigned from her job of Stenographer about 20 years back on

account of her household duties. There is nothing on record to show

that during this period of two decades she has worked anywhere or

her skills as typist/Stenography are retained and will be used

gainfully as during this period of twenty years, with the advent of

technology in the age of computerization, the demands of such job

are drastically changed. Hence, it would be futile to compare her

potentiality with that of the Petitioner.

13] As to the decision of the Delhi High Court relied upon by

learned counsel for the Petitioner, the first one is that of Sanjay

Bhardwaj & Ors. vs. The State & Anr., in Criminal M.C. No.491 of

2009 decided on 28th August, 2010; wherein while considering the

provisions relating to maintenance under The Protection of Women

from Domestic Violence Act, 2005 (D.V. Act) and other prevalent

laws like Hindu Adoption and Maintenance Act, 1956; Hindu

Marriage Act, 1956 and Section 125 of Criminal Procedure Code

(Cr.P.C.), it was held that, "a husband is supposed to maintain his un-

earning spouse out of the income which he earns. No law provides

that a husband has to maintain a wife, living separately from him,

irrespective of the fact whether he earns or not. Court cannot tell the

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husband that he should beg, borrow or steal but give maintenance to

the wife, more so when the husband and wife are almost equally

qualified and almost equally capable of earning and both of them

claimed to be gainfully employed before marriage".

14] It was further observed in this judgment that, "When we

are living in a era of equality of s*xes, an unemployed husband, who

is holding a MBA degree, cannot be treated differently to an

unemployed wife, who is also holding a similar MBA degree. Since

both are on equal footing, one cannot be asked to maintain other

unless one is employed and other is not employed".

15] In my considered opinion, though there cannot be any

dispute about the legal proposition laid down in this authority, one

has to appreciate the said legal proposition in the backdrop of the

facts of the said case. In that case, the marriage has taken place on

25th May, 2007. The parties lived together hardly for three weeks

and then the marriage failed and both of them started residing

separately. There was evidence to show that husband was Bsc and

Masters in Marketing Management, whereas wife was MA(English)

& MBA. It was also found that husband was working as Manager

abroad. Whereas wife was working in Multinational Company in

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India. In the backdrop of these facts, which clearly proved that wife

was very much in service just before the application for maintenance

was filed and she was equally qualified like that of the husband, it

was held that she cannot be entitled for interim maintenance.

Moreover, the evidence on record also proved that the husband has

lost his job in Angola (Africa), where he was working before

marriage, because his passport was seized by police and he could not

join his duties back; hence he has to remain in India and he was not

employed.

16] As against it, in the instant case, the educational

qualification and the experience of working in the field, of the

Petitioner is far higher than that of the Respondent. The salary slip

of the Petitioner goes to prove that he was working as "Deputy

General Manager" in the Reliance Communication Limited for

number of years. The indication thereof is his gross salary which

was to the tune of Rs.2,05,652/- p.m.. In addition thereto, he was

getting other perks and emoluments. As against it, so far as the

Respondent is concerned, long back, from the year 1990 to 1996,

only for 6 years she was serving in NOCIL Non Supervisory

Employees' Credit Fund, Bombay as a Stenographer. Her salary

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certificate is produced on record, which shows that the last salary

drawn by her was Rs.4,749/- only. Her job was also in not in the

managerial capacity but as a typist Stenographer. She has left the

job long back on account of household duties. Hence, it cannot be

said that at present also after the gap of about 20 years she is having

the same potential or earning capacity as that of the Petitioner, who

has lost the job only few months back and that too, the job of a

Deputy General Manager in a Telecommunication Company and at

present also, as stated above, he must be earning far more than his

earlier job.

17] Learned counsel for the Petitioner has then relied upon

the second judgment of the Delhi High Court in case of Damanreet

Kaur vs. Indermeet Juneja and Anr. in Criminal Revision Petition

No. 344 of 2011, decided on 1st June, 2012. The facts of the said case

show that the Respondent-wife was very much working with Met

Life Insurance Company as Assistant Manager from which she

resigned on 17th June, 2010 without assigning any reason. In the

backdrop of the same, when she filed an application for maintenance

thereafter, it was held that she being qualified, the trial Court has

rightly refused to grant interim maintenance to her.

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18]             Learned counsel for the Petitioner has then relied on the

decision of the Madhya Pradesh High Court in the case of Smt.

Mamta Jaiswal vs. Rajesh Jaiswal 2000(3) MPLJ 100. However, the

said decision pertains to the rejection of the prayer made by the

Petitioner-wife for awarding traveling expenses of one adult

attendant who is to go with her for attending matrimonial Court.

While rejecting the said prayer, it was held that, when she is well

qualified, educated, independent lady, she cannot be entitled for such

traveling expenses. It may be true that some observations are made

by the High Court in the said judgment about the grant of interim

maintenance to a qualified woman by observing that, a lady who is

fighting matrimonial petition for divorce cannot be permitted to sit

idle and put her burden on the husband for demanding pendente lite

alimony from him during pendency of such matrimonial petition,

however ultimately the order of interim maintenance awarded to her

by the trial Court was not disturbed in this decision. Conversely the

husband was directed to pay the said amount.

19] It would be useful in this context to refer to the decision

of this Court in case of Tejas B. Naukudkar vs. Urmishta Tejas

Naukudkar & Anr., CDJ 2016 BHC 1568, relied upon by learned

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counsel for the Respondent, wherein despite the material on record

showing that wife was a freelance writer, the award of maintenance

at the rate of Rs.20,000/- per month was upheld having regard to the

financial status of the husband. It was also held that, "the

ascertainment of the income has to be done judicially and sensibly

and not arbitrarily or only arithmetically. In consideration of income

contemplated under these proceedings, cognizance need not be

restricted to only the numerical figures shown in the income tax

returns nor can such figures be taken for the gospel".

20] Learned counsel for the Respondent also relied upon the

recent decision of the Apex Court in case of Manish Jain vs.

Akanksha Jain, CDJ 2017 SC 352. In this case, the application for

interim alimony filed by the wife was resisted by the husband on the

ground that she is an educated lady as she had completed one year

course of Fashion Designing and she is capable of earning monthly

salary of Rs.50,000/- per month. As against it, it was contended that

the husband had become jobless as the publication of the Magazine

in which he was working had stopped. The trial Court had, therefore,

rejected the application filed by the wife for interim maintenance

under Section 24 of the Act; whereas, the High Court has set-aside

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the said order and granted maintenance of Rs.60,000/- to the wife.

When the matter reached to the Apex Court, the Apex Court held

that though the wife has completed the Fashion Designing Course

and internship and also have some job, intermittently, she has no

permanent source of income and, therefore, she was rightly held

entitled for interim maintenance. As regards the contention of the

Respondent-husband that he has lost the job or has no source of

income, the Apex Court was pleased to observe that,

"It has now become a matter of routine that as and when an application for maintenance is filed, the non- applicant becomes poor displaying that he is not residing with the family members if they had a good business and movable and immovable properties in order to avoid payment of maintenance. Courts cannot under these circumstances close their eyes when tricks are being played in a clever manner."

21] In paragraph No.15 of the order of the Apex Court was

pleased to observed as follows:

"15. An order for maintenance pendente lite or for costs of the proceedings is conditional on the circumstance that the wife or husband who makes a claim for the same has no independent income sufficient for her or his support or to meet the

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necessary expenses of the proceeding. It is no answer to a claim of maintenance that the wife is educated and could support herself. Likewise, the financial position of the wife's parents is also immaterial. The Court must take into consideration the status of the parties and the capacity of the spouse to pay maintenance and whether the applicant has any independent income sufficient for her or his support. Maintenance is always dependent upon factual situation; the Court should, therefore, mould the claim for maintenance determining the quantum based on various factors brought before the Court."

(Emphasis suppled)

22] In the instant case, if one has regard to the rich

experience the Petitioner is having in his job, his potentiality, his

present status as Member of John Maxwell Team, then it follows that

at present also he must be earning substantial sum. Whereas

Respondent is not having any source of income and now she also

cannot support herself when the job is left long back for the purpose

of household duties. Hence, merely because at one time in her life,

about 20 years back, she was doing some job of Stenographer, she

cannot be denied her lawful claim for interim maintenance.

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23]             Having regard, therefore, to the status of the parties, the

capacity of the husband and his approximate earning, the amount of

interim maintenance awarded by the trial Court to the tune of

Rs.30,000/- per month, in this case, can hardly be called as

exorbitant or unreasonable, so as to warrant interference therein.

The impugned order therefore passed by the trial Court being just,

legal and correct; it is confirmed. Writ Petition being devoid of

merits, stands dismissed.

24]             Rule is discharged.



                                 (DR. SHALINI PHANSALKAR-JOSHI, J.)