: 1 : cwp-3094-11=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO.3094 OF 2011 Dr. Siddharth Moreshwar Deshmukh through his Power of Attorney holder Mrs. Sheetal Anand Mungee .. Petitioner v/s. Mrs. Poonam Siddharth Deshmukh .. Respondent ......... Mr. Tejesh Dande with Shama Mulla for the petitioner Mr. Bhushan Shalakar for the respondent ......... CORAM : R.Y.GANOO, J. DATE : 27th APRIL, 2011 P.C. : 1. The petitioner herein has filed petition for divorce in the Family Court at Pune being P.A. No.29 of 2009. The respondent herein has filed an application for interim maintenance under Section 36 of the Special Marriage Act in the said petition. The petitioner herein filed reply and the learned Judge of the Family Court has passed an order on the said application thereby directing the petitioner to pay a sum of Rs.50,000/- per month w.e.f. 2nd May, 2009. This order dated 2nd February, 2011 is challenged by this petition. : 2 : cwp-3094-11=.sxw 2. I have extensively heard learned Counsel on both sides at the stage of admission. The petitioner is the Medical Practitioner practicing in United Kingdom. Across the bar, learned Counsel for the petitioner admitted that the monthly income of the petitioner in terms of Indian rupees is Rs.5 lakhs. He, no doubt, pointed out to the Court that his expenses for the month are in the vicinity of Rs.4.50 lakhs as he has to spend for his day to day expenses as well as to pay loan installments in respect of three immovable properties, which he has purchased in United Kingdom. 3. It was sought to be argued by learned Counsel for the petitioner that the respondent is a divorcee and in the application for maintenance she has not explained as to what amount she receives from her earlier husband in terms of maintenance or otherwise. This argument is required to be rejected. The Court has to see whether Respondent is able to maintain herself on the date of application for interim maintenance. 4. It was sought to be argued that the respondent has let out certain property on the tenancy basis and is earning a sum of Rs.7,000/- per month. This factual situation is no doubt admitted by the respondent. It was argued that the respondent is possessing necessary qualification : 3 : cwp-3094-11=.sxw to practice as an advocate and before the marriage she was practicing as an advocate. In so far as this aspect is concerned, it will not be proper for this Court to hold that merely because the respondent possesses necessary qualification, she is earning substantial amount in terms of professional fees. It is required to be noted that the professional fees received by a lawyer and in particular upcoming junior laywer are uncertain and therefore it would be difficult to calculate and include said fees by way of a fixed monthly income. It is required to be noted that the respondent was staying in Pune and she left Pune to join the matrimonial home at United Kingdom and thereafter, she has returned to India. In such a case, it is difficult to accept that the respondent is earning substantial amount by way of professional income. The petitioner has not been able to make out a case that respondent is earning handsome amount by way of her profession. 5. It was argued by learned Counsel for the petitioner that the respondent was staying with the petitioner hardly for a period of 3 months at United Kingdom and, therefore, she is not entitled to the financial status of a person who is residing in United Kingdom. I do not agree with this submission. Once the respondent is married to the petitioner who is practicing doctor at United Kingdom regardless of actual stay which may depend on various factors, the respondent : 4 : cwp-3094-11=.sxw cannot be denied status of a wife of a medical practitioner at United Kingdom. To that extent, argument is rejected. 6. Learned Counsel for the petitioner contended that the present application for interim maintenance is filed as per the provisions of Section 36 of the Special Marriage Act, 1954. It is required to be mentioned that the marriage between the petitioner and the respondent was solemnized under Special Marriage Act, 1954. The petitioner had to resort to the provisions of the Special Marriage Act, 1954 for the purposes of securing divorce. Consequently, respondent had to resort to provisions of Section 36 of the Special Marriage Act, 1954 which enables wife to seek maintenance. Learned Counsel for the petitioner drew my attention to the words appearing in Section 36 which are as follows. “.....the wife has no independent income sufficient for her support and the necessary expenses of the proceeding”. 7. According to learned Counsel for the petitioner the word ‘support’ has to be interpreted as a nominal amount which would take care of day to day expenses of a wife who is in need of maintenance. He drew my attention to the provisions of Section 23 of Hindu Adoption and Maintenance Act where a duty is cast upon the Judge to look to the : 5 : cwp-3094-11=.sxw position and status of the parties and reasonable want of the claimant at the time of determination of quantum of maintenance. According to him the two terms used in the relevant Sections i.e. Section 36 of the Special Marriage Act, 1954 and Section 23 of the Hindu Adoption and Maintenance Act, 1956 are different and, therefore, in this case, the Court is required to consider at the best what amount is required by the respondent to support herself. In my view, once the application is being filed under the provision of Section 36 of the Special Marriage Act, 1954, one may not look to the provisions of Hindu Adoption and Maintenance Act. Learned Judge of the Family Court was required to consider as to what amount if granted would meet the ends of justice and would be sufficient to enable the respondent to maintain herself. In my view, it is not necessary for this Court to use the word ‘support’ in a restricted sense. In my view, the Court will have to consider the income of the husband, status of the husband, facts prevailing in a particular case and arrive at particular amount. It will be necessary to consider the income of the husband, income of wife and then fix the financial need of wife. In my view, merely because the respondent stayed with the petitioner for a period of 3 months, it cannot deprive her of her status as respectable wife of a medical practitioner practicing in United Kingdom. It cannot be that the petitioner is earning substantial amount i.e. Rs.5 lakhs per month and respondent has to survive on a : 6 : cwp-3094-11=.sxw token amount of maintenance. In my view, the wife is entitled to get reasonable amount of maintenance. This Court cannot forget that she is a wife of medical practitioner practicing in United Kingdom. 8. It was admitted by the petitioner that the monthly income of the petitioner is Rs.5 lakhs. This amount of Rs.5 lakhs was considered by the learned Judge also. It is required to be mentioned that in the affidavit-in-reply to the interim maintenance application, the petitioner has not come out with all facts at the first available opportunity. It appears that an affidavit came to be filed by the petitioner at a later point of time alongwith some documents justifying his income. This conduct on the part of the petitioner certainly cannot be considered as bona fide conduct. It was necessary for the petitioner to disclose his income and his financial assets to the learned Judge of the Family Court at the first available opportunity. Possibly at the stage of hearing of the interim application, the petitioner was compelled to place his cards before the Court and that was done through filing affidavit. Be that as it may, the petitioner has admitted that his monthly income is Rs.5 lakhs. No doubt, the learned Counsel for the petitioner has stated that his expenses per month are to the tune of Rs.4,50,000/-. He submitted that a substantial amount is required to be paid to pay off the loans which he has borrowed for the purposes of acquiring three immovable : 7 : cwp-3094-11=.sxw properties in United Kingdom. In my view, a married person has to consider his responsibilities towards members of his family in terms of money. Such a person has to set apart reasonable amount of money for members of his family and then spend rest of the amount on various items. In the present case, petitioner has contended that a large amount of money is spent in paying loan installments. It is clear that the petitioner has incurred liabilities disproportionate to his duties towards member of his family viz. the respondent. It cannot lie in the mouth of the petitioner that he has no funds to pay monthly maintenance to his wife. The petitioner is duty bound to pay maintenance to his wife and then spend rest of the amount as he wants. 9. It was sought to be argued that the respondent has not given particulars of her requirements in the application for interim maintenance. In my view, in an application for interim maintenance, it is not necessary to specify as to how much amount the applicant requires item-wise. In my view, in an application for interim maintenance it is sufficient if a particular figure is mentioned as necessary for day to day maintenance. Surely, the Court will arrive at a reasonable amount which if granted would meet day to day requirements of a person who is seeking maintenance. : 8 : cwp-3094-11=.sxw 10. I have considered the record and the impugned order. In my view, the impugned order dated 22nd February, 2011 has been passed by the learned Judge of the Family Court after considering all the facts and circumstances which were placed before him for the purpose of deciding the application for interim relief. 11. It is required to be noted that the petitioner is earning a substantial amount of Rs.5 lakhs per month in United Kingdom. The learned Judge has taken into consideration need of the respondent and income of the petitioner and has arrived at proper quantum of maintenance to be paid to respondent. For the aforesaid reasons no interference is required in the impugned order and petition is required to be dismissed at the stage of admission. Hence, following order is passed to dispose of the the petition. ORDER (i) Petition is dismissed. There shall be no order as to costs. (ii) After the aforesaid order is passed, learned Counsel appearing on behalf of the petitioner submitted that the petitioner should be granted 8 weeks time to deposit the arrears. In my view, it is not necessary for this Court to grant such time. (R.Y.GANOO, J.)