wife cannot claim maintenance

8/12/2019 Wife Cannot Claim Maintenance

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t 1 fca.144.13.sxwjdk IN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTIONFAMILY COURT APPEAL NO. 144 OF 2013

INM.J.PETITION NO. A - 382 OF 2008

Madhu Gupta ]

Age 61 years, Occ: Housewife ]

Residing at 50, !heeta" #A$ %ing ]

!wa&i !a&arth 'agar, ]

Off( )our *unga"ows Andheri %est ]

Mu&+ai00 05- ](( Appe""ant

.Ori( Respondent/

s(

ra2in 3u&ar Gupta ]

Age 65 years, Retired ]

Residing at 1105, 11th f"oor ]

ancha2ati 4(H(!( td( ]

Off ari Road, erso2a ]

Andheri .%est/, Mu&+ai00 061 ]((Respondent

.Ori( etitioner/

WITHCIVIL APPLICATION NO. 13 OF 2013

INF.C.A.NO. 144 OF 2013

INM.J.PETITION NO. A-382 OF 2008

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t 2 fca.144.13.sxwMadhu Gupta ]Age 61 years, Occ: Housewife ]Residing at 50, !heeta" #A$ %ing ]



Mu&+ai00 05- ](( App"icant7Appe""ant

.Ori( Respondent/

8' 9H MA99R *9%'!

Madhu Gupta ]

Age 61 years, Occ: Housewife ]

Residing at 50, !heeta" #A$ %ing ]



Mu&+ai00 05- ](( Appe""ant

.Ori( Respondent/

s(

ra2in 3u&ar Gupta ]

Age 65 years, Retired ]

Residing at 1105, 11th f"oor ]



Andheri .%est/, Mu&+ai00 061 ]((Respondent

.Ori( etitioner/

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t 3 fca.144.13.sxwWITHCIVIL APPLICATION NO. 1" OF 2014IN

F.C.A.NO. 144 OF 2013

ra2in 3u&ar Gupta ]

1105, 11th f"oor ]



Andheri .%est/, Mu&+ai00 061 ]

9e&porari"y Residing at ]

0, ;en


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t 4 fca.144.13.sxw(((((Mrs( Mruna"ini ;esh&u@h and Ms( ;e2i@a ;esh&u@h a"ong withMr( Mahesh ondhe and Ms( Radha ed Ad2ocates i7+ M7s(!anay Bdeshi and 4o( for Appe""ant in )4A 'o( 1 of =01- andApp"icant in 4AM 'o( 1-> of =01- and Respondent in 4AM 'o(16 of =01

Mr( ;attatray ( Adar@ar Ad2ocate for Respondent in )4A 'o(1 of =01- and 4AM 'o( 1-> of =01- and App"icant in 4AM'o( 16 of =01

(((((

CORAM ! SMT.V.#.TAHILRAMANI AND SHRI. P.N.DESHMU#H$ JJ.

DATED ! FEBRUARY 11$ 2014

JUDGMENT! %PER SMT. V.#.TAHILRAMANI$J.& !

1 Heard the "earned counse" for the appe""antwife and

the "earned counse" for the respondenthus+and( *y consent of

the parties, the &atter is ta@en up for fina" hearing and

disposa"( )or the sa@e of con2enience, hereinafter, the

appe""ant wi"" +e referred to as Cthe wifeC and the respondent

wi"" +e referred to as Cthe hus+andC(

= 9his )a&i"y 4ourt Appea" has +een fi"ed +y the wife

against the udg&ent and order dated ==(10(=01= passed in

M(D( etition 'o( A-E= of =00E +y the )a&i"y 4ourt 'o(=,

*andra, Mu&+ai, where+y her counterc"ai& for &aintenance

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t 5 fca.144.13.sxwwas dis&issed( Ad&itted facts in this &atter are that theyha2e two chi"dren i(e( one son Anindya and one daughter( *oththe chi"dren are &arried and they are sett"ed a+road( 9he

hus+and had fi"ed a petition for di2orce on the ground of

crue"ty which ca&e to +e dis&issed( He has not cha""enged the

said decision in the petition for di2orce( 9he wife had fi"ed

counterc"ai& see@ing udicia" separation and &aintenance of

Rs(15,0007 per &onth( 9he hus+and contested the counter

c"ai& +y fi"ing his %ritten !tate&ent( 9he hus+and$s petition

for di2orce was dis&issed on 1-(1(=00? +y the )a&i"y 4ourt(

9hereafter, the wife adduced her e2idence c"ai&ing for a

decree of udicia" separation and &aintenance of Rs(15,0007(

On 1-(E(=00E, the )a&i"y 4ourt eFparte decreed the counter

c"ai& and according"y decree of udicia" separation was passed

and the hus+and was directed to pay Rs(=5,0007 per &onth as

&aintenance to the wife( 9he hus+and preferred Misc( 4i2i"

App"ication for setting aside eFparte decree passed on

1-(E(=00E( Howe2er, he did not cha""enge the decree of

udicia" separation and he had on"y prayed for setting aside the

order re"ating to the &aintenance( Misc( 4i2i" App"ication was

granted on 1?(-(=01=( 9hus, the decree passed on 1-(E(=00E

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t 6 fca.144.13.sxwin re"ation to &aintenance, was set aside +y order dated1?(-(=01=( 9hereafter, the wife "ed her e2idence and thee2idence of her son Anindya and the hus+and adduced his

e2idence(

- 8t is we"" sett"ed "aw that a wife who has no sufficient

per&anent source of inco&e, can on"y c"ai& and get

&aintenance fro& her hus+and who is ha2ing sufficient &eans(

9he +urden "ies on the wife to pro2e that the hus+and has

refused and neg"ected to &aintain her though he is ha2ing

sufficient &eans( 9he e2idence of the wife and son Anindya

shows that the wife is staying separate since =00> and the

hus+and has not gi2en any a&ount to her towards

&aintenance( 8t is an ad&itted fact that +oth the parties are

staying separate"y since the year =00>( As the decree for

udicia" separation was granted in fa2our of the wife and the

decree of udicia" separation has not +een cha""enged +y the

hus+and, on this ground the wife has a right to "i2e separate"y

fro& hus+and( 9he hus+and has stated in his e2idence that he

is staying in Austra"ia and he is doing partti&e wor@ at oca"

4o&&unity 4o""ege .'epean 4o&&unity 4o""ege/( He has

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t 7 fca.144.13.sxwfurther stated that he was teaching three courses +ased on hiss@i""s in !a"es and 4o&puters( ach course is of E "ecturers of =hours duration each( He is paid 500 Austra"ian ;o""ars posttaF

for the fu"" course( His a2erage &onth"y inco&e posttaF was

00 Austra"ian ;o""ars(

9he "earned counse" for the wife produced so&e

docu&ents to show that the hus+and was a 4((O( in =%8'

4O'!B9A'4 9( 9;( in Austra"ia 9he said +usiness is

conducted fro& 0 ;en


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t 8 fca.144.13.sxwthese docu&ents wou"d +e of no use to the appe""antwife(5 8n considering the prayer for &aintenance, two issues

ha2e to +e considered 2i


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t 9 fca.144.13.sxwad&itted that a+out Rs(50 "a@hs is in the na&e of the wife inthe *an@( 9he e2idence of the wife c"ear"y shows that the wifehas in2ested Rs(50 "a@hs in the *an@s in )iFed ;eposits and

she is getting interest on the said )iFed ;eposits( 8n such case,

the appe""antwife cou"d ha2e produced and pro2ed the )iFed

;eposit 4ertificates and rate of interest which she is getting(

Ad&itted"y, she has not produced the )iFed ;eposit

4ertificates, therefore, it has not co&e on record that how

&uch interest she is getting( 8t is an ad&itted fact that the

wife is a senior citi,5007 per &onth as

interest on )iFed ;eposits of Rs(50 "a@hs( 9he wife has stated

in her crosseFa&ination at paragraph E that she is ready to

produce the !tate&ents of Accounts of Mutua" )unds standing

in her na&e a"one +ut she has not produced the !tate&ents of

Accounts of Mutua" )unds( 9his shows that she has a"so &ade

in2est&ents in Mutua" )unds in addition to )iFed ;eposits

which c"ear"y stand in her na&e +ut she has not produced the

sa&e( 8f she wou"d ha2e produced the !tate&ents of Accounts

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t 10 fca.144.13.sxwof Mutua" )unds, then it wou"d ha2e gone against her,therefore, she has not produced the sa&e( 8n suchcircu&stances, an ad2erse inference is reIuired to +e drawn

against the appe""antwife and it is reIuired to +e he"d that she

is getting so&e di2idends regu"ar"y fro& the in2est&ents &ade

in the Mutua" )unds(

6 9he wife has ad&itted in her e2idence that she is

staying in !heeta" Apart&ent at Andheri, Mu&+ai( 9he f"at in

!heeta" Apart&ent at Andheri, according to her, was +ought

out of the &oney put in +y her and her hus+and( 9he hus+and

has another f"at which is a"so in Andheri in ancha2ati *ui"ding(

9he "earned counse" for the respondenthus+and has stated

that the f"at has +een gi2en eFc"usi2e"y to the wife and she is in

eFc"usi2e possession of the sa&e( 9his fact is ad&itted +y the

"earned counse" for the appe""antwife( 8n such case, there is

no Iuestion of gi2ing rent for acco&&odation to the wife(

> 9he "earned counse" for the appe""antwife su+&itted

that though the )a&i"y 4ourt had he"d that the wife has to

incur &edica" eFpenses, dai"y eFpenses, &aintenance of

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t 11 fca.144.13.sxwsociety etc( yet, the )a&i"y 4ourt has not awarded any&aintenance to the wife( !he further pointed out that on-0(11(=01- the wife was reIuired to undergo surgery for +oth

@nees and the eFpenses for the said surgery ca&e to a+out

Rs(10,-?,0007( !he has further stated that the f"at in which

the wife is staying is in dire need of repairs and she has

produced a copy of a "etter of the Architect dated ?(1(=00

which shows that the f"at needs repairs( 9hus, it was su+&itted

that the wife wou"d +e reIuired to incur eFpenses in re"ation to

the repairs of the f"at a"so( As far as the docu&ents re"ating to

the &edica" eFpenses for @nee rep"ace&ents are concerned,

the said eFpenses were incurred on -0(1=(=01- which was

after the udg&ent and decree was passed in the present case(

9he udg&ent and decree in the present case was passed on

==(10(=01= and the e2ents &entioned in the docu&ents ha2e

occurred after the udg&ent and decree has +een passed( 8n

2iew of this su+seIuent de2e"op&ents, the udg&ent passed

+y the "earned Dudge of the )a&i"y 4ourt cannot +e fau"ted(

!i&i"ar is the situation in respect of the eFpenses for repairs of

the f"at(

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t 12 fca.144.13.sxwE 8t was contended on +eha"f of the wife that a&ountwas siphoned off +y the hus+and fro& their oint account( 9hesaid a&ount was a+out Rs(1?,E5,617( 8t is interesting to note

that the wife herse"f had not &ade any &ention a+out the

sa&e in her e2idence( 9he son Anindya has &ade so&e

reference to such fact, howe2er, no witness fro& the *an@ has

+een eFa&ined to pro2e that the hus+and had siphoned off

such a&ount fro& the oint account(

? 9he "earned counse" for the appe""antwife reiterated

ti&e and again that the appe""ant wife was and is a ho&e

&a@er and she has no independent source of inco&e( 8t is a"so

an ad&itted fact that the wife has Rs(50 "a@hs in *an@

Accounts, o+2ious"y, as the wife was not earning, the said

a&ount of Rs(50 "a@hs &ust ha2e co&e out of the hus+and$s

earning( *esides the a&ount of Rs(50 "a@hs which is deposited

in the )iFed ;eposits in the na&e of the wife, it &ay +e stated

that the hus+and had deposited Rs(=,00,0007 +y way of

interi& &aintenance for the wife( 9he wife was a""owed to

withdraw the said a&ount( !he has deposited the said a&ount

in the *an@ as )iFed ;eposits which is ad&itted +y her in her

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t 13 fca.144.13.sxwcrosseFa&ination in paragraph 5E( 8f rea""y the wife was inneed of &oney for her &aintenance, then definite"y she wou"dha2e spent the a&ount and wou"d not ha2e in2ested it in )iFed

;eposits in the *an@( 9his shows that the wife is ha2ing

sufficient &oney for her &aintenance( 9he wife is getting at

"east an a&ount of Rs(->,5007 per &onth fro& the )iFed

;eposits( 8n addition, she is getting so&e additiona" a&ount

of interest on Rs(=,00,0007 which has +een in2ested +y her

which was recei2ed +y her +y way of interi& &aintenance( 8n

addition to this a&ount, she is getting so&e a&ount +y way of

interest on the &oney she has in2ested in Mutua" )unds( A""

these a&ounts are &ore than sufficient for her &aintenance( 8t

is seen that the wife is ha2ing sufficient per&anent source of

inco&e to &aintain herse"f(

10 9he "earned counse" for the respondenthus+and

su+&itted that the wife is ha2ing sufficient &eans for her

sur2i2a" and therefore, she is not entit"ed to get &aintenance(

He has p"aced re"iance on the ratio "aid down +y this 4ourt in

the case of S'(')*+ A,)/ M/'** V5. A,)/

R*6,5')* M/'**reported in 20117" M'. L. J. 19(

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t 14 fca.144.13.sxw8n the said case, this 4ourt o+ser2ed that the wife was earningRs(5,0007 per &onth as sa"ary and she has recei2ed Rs(11"a@hs as +ac@wages( Her daughters were not dependent on

her( 9herefore, this a&ount is sufficient to the wife for her

&aintenance( 9his 4ourt o+ser2ed that in such case, the wife

is not entit"ed for &aintenance fro& the hus+and( 8n the

present case, it is seen that the wife is getting &ore than

Rs(->,5007 per &onth as interest( !he has &ore than 50 "a@hs

in the +an@( 8n addition, the app"icant$s son is pro2iding &oney

for her &aintenance and other eFpenses( 'o one is dependent

on her( 9hus, the facts in the decision re"ied upon and the

facts in the present case are Iuite si&i"ar and the ratio wou"d

app"y to the facts of the present case(

11 oo@ing to the e2idence on record, we are of the

opinion that the Dudge of the )a&i"y 4ourt has right"y he"d that

the appe""antwife is ha2ing sufficient inco&e for her sur2i2a"

and she has fai"ed to pro2e that she is entit"ed for any

&aintenance( 9hus, we find no &erit in the present Appea"(

Appea" is, therefore, dis&issed(

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t 15 fca.144.13.sxw1= 8n 2iew of dis&issa" of the )a&i"y 4ourt Appea", 4i2i"App"ication 'os( 1-> of =01- and 16 of =01 do not sur2i2e andare disposed of as such(

%SHRI. P.N.DESHMU#H$ J.& %SMT. V.#.TAHILRAMANI$ J.&

kandarkar

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wife cannot claim maintenance

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