1 (2) WP 6674/10 & Ors. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Amk WRIT PETITION NO. 6674 OF 2010 with WRIT PETITION NO. 6683 OF 2010 Chandresh D. Vora .. Petitioner Vs. Hetal Chandresh Vora & Anr. .. Respondents Ms. Sharmila U. Deshmukh for the Petitioner Mr. Yogesh K. Sharma for the Respondents. with WRIT PETITION NO. 7593 OF 2010 Hetal Chandresh Vora .. Petitioner Vs. Chandresh D. Vora & Anr. .. Respondents Mr. Yogesh K. Sharma for the Petitioner. Ms. Sharmila U. Deshmukh for the Respondent No.1. CORAM : MRS. ROSHAN DALVI, J. Date : 11th October, 2010 P.C. 1. Rule, made returnable forthwith. 2. The first 2 Writ Petitions are filed by the husband against the wife. The first of which is challenging the order of maintenance of Rs.9,000/- to be paid by the husband to his wife and child and the second Petition is for allowing the Respondent to stay in the matrimonial home which admittedly stands in his name. 2 (2) WP 6674/10 & Ors. The third Petition is filed by the wife for enhancement of the order of maintenance granted by the Family Court. The husband is in business. He has admitted that he is in business of manufacturing, distributing and marketing floor tiles. He was in partnership with his brother. The husband has admitted in paragraph 5 of his Written Statement in the maintenance Application filed in the Family Court that the business is running. He however claims that he suffered huge financial crisis. The husband relied upon income tax returns of his business when it was in partnership with his brother and after he took it over as proprietary concern. Though the income tax returns itself would not reflect the true figure of income, even that is not produced for the perusal of the Court. Income tax returns of several years prior to or after any particular dispute would give the Court a fair idea of the financial position of the parties. In this case when the husband’s business with his brother is admitted and a huge financial crisis is averred, income tax returns of a year prior to and after the conversion of the business from partnership to proprietary concern and thereafter when the husband suffered financial crisis would show and determine when the financial crisis took place and what was its aftermath. 3. Despite reliance upon income tax returns the husband has not produced anything. His financial crisis cannot be seen. His admission of his business of floor tiles is seen. Judicial notice is required to be taken of the fact that in view of the real estate market situation, floor tiles are in demand and otherwise there is no reason to accept that his business would fail. Hence if any particular financial crisis is not shown, 3 (2) WP 6674/10 & Ors. none can be imputed or excepted. 4. The husband has further averred in paragraph 7 of his Written Statement that he “usually” paid his wife Rs. 10,000/- to 14,000/- “even then it was not enough for the Petitioner”. This would imply that the husband paid his wife rather regularly. Usually payments are made per month. The husband’s refrain that they are not enough for the Petitioner shows that he paid it at such intervals. 5. This further shows his ability to pay. The reading of the Written Statement shows that the payment is made even after the alleged financial crisis. The husband has not stated that he used to pay the wife earlier but has stopped paying because of any intervening circumstances. 6. When the husband’s business is admitted and no income is shown what the wife states as the income of the husband based upon her knowledge or what was the state of affairs prior to the dispute between the parties would have to be accepted. The wife claimed Rs.25,000/- per month on. 7. The learned Family Court Judge has granted the wife Rs.6,000/- and the child Rs.3,000/- as a maintenance. The child is stated to have reached majority. The child would be entitled to claim maintenance so long as he is a minor under Section 20(2) of the Hindu Adoption and Maintenance Act and the mother on his behalf would be entitled to claim interim maintenance for him under Section 24 of the Hindu 4 (2) WP 6674/10 & Ors. Marriage Act when a Petition between the parties is pending. Since admittedly the child is no longer a minor that amount cannot now be claimed, though a note has to be taken that the businessman father has refused to maintain his child upon attaining majority. 8. Under the impugned order dated 27th September, 2010 upon hearing both the Advocates the most reasonable amount is granted as maintenance. Despite the aforesaid admission of the husband that he paid Rs. 10,000/- to 14,000/- to his wife. The learned Judge has granted in total Rs.9,000/- to be paid by him. 9. Despite the order of this Court, the husband has not deposited the farthing. The order dated 27th September, 2010 is not at all complied and is fully breached. Advocate on his behalf stated that the husband is not able to deposit. Under these circumstances, the Advocate of the husband was heard. She claims that the husband does not file income tax returns because of the financial crisis. He does not earn anything. This is strictly against even the Income Tax law. A citizen is required to file his returns and show the loss, if any, sustained by him in his business or to show lack of profits as before. The aspect of non filing of returns, therefore, cannot be accepted. 10. The maintenance amount would, therefore, require to be paid to the wife who has not been maintained. The only aspect is to consider whether to enhance that amount or not in the wife’s Petition. 11. The aforesaid admission of payment indeed does 5 (2) WP 6674/10 & Ors. not show that the amount is paid strictly per month. It cannot be accepted that the amount paid by the husband to the wife would be at such regular monthly intervals if there are no disputes between them. The admission shows that the husband paid the amount as pocket money which did not satisfy the wife. It could have been paid at intervals though the reading of the sentence suggests that it was paid rather frequently. Such amount, therefore, can be paid unless the husband shows changed circumstances. 12. The wife however has not shown how the amount granted is particularly insufficient given husband’s financial condition. The amount of Rs.6,000/- granted to the wife as interim maintenance cannot be modified time and again unless specific fresh facts are shown to the Court. The amount is not particularly insufficient since it an interim amount and would be modified upon specific evidence led by the parties and their respective cross- examinations. 13. Hence the order of interim maintenance challenged in both the Petitions by the parties does not require any interference. 14. The husband has been prevented by the wife from entering into matrimonial home in view of the disputes between the parties. The learned Family Court Judge has considered that it would not be desirable to allow him to stay in the flat which is her matrimonial home. This is essentially upon the footing that the husband himself gave his no objection. That observation appears to be an inadvertent error. The husband gave his no objection for 6 (2) WP 6674/10 & Ors. an order of injunction restraining him from selling, alienating, encumbering, transferring or creating third party rights in the said flat. The husband requires to live in the matrimonial home with the wife unless a specific case of abuse of any nature is made out so as to make the wife unable to live with the husband. No such case is made out by the wife. Hence the order dated 11th June, 2010 disallowing the husband from staying in the matrimonial home deserves to be interfered with. However the husband must be granted his right of entry into the suit flat to reside there with his wife and child upon he performing his duties as husband and father. The husband has thrown his hands up so far as his paternal obligations are concerned under the cover of law. He cannot be allowed to do so, so far as his marital obligations are concerned. He shall be entitled to enter upon the matrimonial home only after he pays his wife the entire arrears of maintenance. Once the arrears are paid, the husband shall be allowed by the wife to enter upon and stay in the matrimonial home. However the husband shall not create any disturbance in matrimonial home and continue to support his family therein. The husband shall also not sell, alienate, encumber, transfer or create any third party rights in the Suit flat. 15. Rule is granted accordingly in all the above Writ Petitions. ( ROSHAN DALVI, J.)