1 fca142 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVILAPPELLATE JURISDICTION FAMILY COURT APPEAL NO. 142 OF 2009 ALONG WITH CIVIL APPALICATION NO. M-216 OF 2009 IN FAMILY COURT APPEAL NO. 142 OF 2009 Bharat Omprakash Agarwal. ... ... Appellant. Versus Tanuja Bharat Agarwal & Ors. ... ... Respondents. Mr. Ronak Shah for the Appellant. Mr. Anil V. Dhavale for the Respondents. CORAM : A. M. KHANWILKAR and A. A. SAYED, JJ. DATED : 15TH JULY, 2010. P. C. : Heard learned Counsel for the parties. Perused the relevant material on record. 2. The present appeal assails the order passed by the Family Court at Pune directing the appellant husband to pay Rs.5,000/- to the respondent wife towards maintenance under Sections 18 and 20 of the Hindu Adoptions and Maintenance Act from the date of the petition i.e. 1st September, 2008. The Family Court has recorded tangible reasons to arrive at the conclusion that the respondent wife was not in a position to maintain herself and was in need of monthly maintenance to cater to her requirement of food, clothing, education and medical attendance and 2 fca142 treatment amongst others. The quantum of monthly maintenance has been arrived after taking into account the income of the appellant. It is not in dispute that the appellant is engaged in the business of construction. It is also not in dispute that the appellant owns immovable property. One of the flat owned by the appellant is occupied by the respondent wife and son Akshay, born out of the wedlock of appellant and respondent No.1. Indeed, the respondent had also asked for maintenance of the son but since he has become major no provision has been made towards his maintenance. The fact remains that the respondent wife has to maintain herself and the son. There is nothing on record to indicate that the respondent wife has sufficient means to maintain herself as well as her son. The argument of the appellant is that the respondent ought to have proved the fact that she does not have sufficient income to maintain herself, considering Section 23 of the Act. This argument clearly overlooks the fact that the respondent has approached the Court with clear assertion that she has no income and is unable to maintain herself. The respondent cannot be expected to prove a negative fact. It was the case of the appellant that the respondent had sufficient income from the business which is being conducted from the shop made available to her. The appellant, however, has not produced any material on record to substantiate that fact. 3. Learned Counsel for the appellant has invited our attention to the judgment of the Division Bench of our High Court in the case of Vinod Dulerai Metha v/s Kanak Vinod Mehta, reported in 1989(2) Bom. C. R. 217. In our 3 fca142 opinion, the exposition in the said decision instead of supporting the appellant would go against the appellant. The Division Bench of this Court has opined that it is common knowledge that income tax returns do not reflect the true position of the income of a party for several reasons and cannot be taken as the sole guide for determining it in proceedings such as the present one. That observation is found in paragraph 5 of the above referred reported decision. We are in agreement with the said opinion and applying the said principle to the fact situation of the present case the opinion recorded by the Family Court requiring the appellant husband to pay monthly maintenance of Rs.5,000/- to respondent wife is unexceptionable. We have noticed that the appellant had offered maintenance amount in the sum of Rs.3,000/- per month to the respondent as is recorded in paragraph 26 of the impugned judgment. However, the Family Court, after considering the entire material on record and in the circumstances emanating from the record has rightly concluded that the appellant is liable to pay monthly maintenance in the sum of Rs.5,000/- to the respondent wife. We see no reason to differ from the said opinion. Hence this appeal fails and is accordingly dismissed. 4. In view of the dismissal of the appeal itself, nothing survives in the civil application, which is accordingly dismissed. Sd/- Sd/- (A. A. SAYED, J.) (A. M. KHANWILKAR, J.)