1 (21) WP 8904/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Amk WRIT PETITION NO. 8904 OF 2010 Pramila Pravin Oza .. Petitioner Vs. Pravin Badrinarayan Oza .. Respondent Mr. R. S. Deshpande for the Petitioner. Mr. Shravan M. Vyas for the Respondent. CORAM : MRS. ROSHAN DALVI, J. Date : 10th January, 2011 P.C. 1. The wife has challenged the order of interim maintenance granted in her application taken out under Section 125 of the Code of Criminal Procedure passed by the learned Family Court No.6, Mumbai. Interim maintenance to the wife has been refused. Interim maintenance of Rs.4,000/- to the child has been granted. The husband has been paid interim maintenance for about 4 months and thereafter failed to pay. The wife claims interim maintenance. 2. The husband contends that he has not neglected the wife and she has left the matrimonial home for her own accord and hence caused him harassment. This aspect can be determined only at the trial. 3. The husband further claims that the wife is a beautician and earns Rs.30,000/- to 35,000/- p.m. The wife claims that the husband earns Rs.40,000/-. Both have denied the cases of the other. 2 (21) WP 8904/10 4. The husband has relied upon the visiting card of the wife and the photograph of her shop. The photograph shows the name board. The name board is identical to the visiting card. The wife claims that the shop is not hers but of her father. He sells some Vadapaav at the shop and earlier he was selling garments. She states that her sister carries on some business of beauty shop in which the wife assisted to make ends meet. It is the specific case of the wife that only because she was neglected by her husband, she was forced to work to survive. This earning is not by way of chosen profession, career or as employment. The earning thereunder must be specifically shown. A meagre earning only to make ends meet cannot disentitle any wife from claiming maintenance. In fact such amount cannot even be deducted from the maintenance amount otherwise payable because if the husband maintains wife as he required to do, she would not be constrained to earn some meagre amount. The husband’s case that she is earning Rs. 30,000/- to 35,000/- is not at all substantiated. In fact the wife claims that she had tried to earn but could not succeed and has it given up. Once the wife gives up the employment or business that she embarks upon, her claim to maintenance is required to be considered. Of course, that can be considered only upon evidence led by both the parties. 5. The wife claims that the husband has family business of sweetmeats. The husband claims that only his 2 brothers carry on that business. He helped his brothers for some time and later took up a job as salesman. He earns Rs.3,000/- as salesman and he has been dismissed since the wife lodged criminal complaint 3 (21) WP 8904/10 under Section 498-A of the Indian Penal Code against him. This explanation of the husband is unacceptable. The brothers are indeed seen to be carrying on business. The husband has shown their income tax returns. The husband has not shown his own income tax returns. The husband has not shown how much he earned when he helped his brothers. The husband has not produced anything other than one certificate which is unsigned but which carries rubber stamp of Raj Electrical below which Sanjay Jain is written. The husband will have to prove the said document by examining Sanjay Jain. 6. It is settled law that when her husband does not show his income, the income stated by the wife is to be accepted. The wife has stated that the husband earns Rs.40,000/- p.m. which is denied by the husband. These aspects would have to be considered upon cross- examination of both the parties at the final hearing of the Petition. 7. Since there is indeed one shop where the board of the shop is shown as a Beauty Parlour and not Snacks Corner claimed by the father of the wife, the learned Judge’s order considering that the wife carries on business in the shop as a beautician cannot be termed to be completely unreasonable, arbitrary and therefore cannot be interfered with. It will be for the parties to show their respective earnings and for the other party to cross-examine. Until that is done, the order refusing interim maintenance to the wife is not interfered. 8. The interim maintenance to the child has been ordered Rs.4,000/- p.m. The husband is duty bound to pay 4 (21) WP 8904/10 the maintenance amount for the child as directed. The wife may take such proceeding as she advised if the husband fails to pay that amount of maintenance. With that direction the Writ Petition stands dismissed. ( ROSHAN DALVI, J.)