1 (902) WP 8032/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Amk WRIT PETITION NO. 8032 OF 2010 Sangeeta Sanjay Aggarwal .. Petitioner Vs. Sanjay B. Aggarwal .. Respondent Mr. R. T. Lalwani for the Petitioner. Ms. Rajani Aiyar Sr. Counsel a/w Mr. Ibrahim Merchant i/b K. V. Aiyar & Associates for the Respondent. CORAM : MRS. ROSHAN DALVI, J. Date : 24th February, 2011 ORAL ORDER : 1. Rule. Made returnable forthwith. 2. The wife has challenged the order of interim maintenance granted to her by the Family Court, Mumbai in a sum of Rs.50,000/- from the date of her Petition i.e. 06.10.2007. She claims that she would be entitled to maintenance of Rs.2,00,000/- pending the Petition. The essence of her case is that though she claims that her income is not more than 3,500/- to 4,000/- p.m., her husband claims that her income is Rs.1,00,000/-. The husband has admitted in the evidence which have been recorded in the main Petition that he earns Rs. 10,00,000/- p.m. The substantial difference in the admitted earning of the husband and the earning claimed to be of the wife is so vast as to require power balancing. 3. The wife does not claim to have income sufficient to maintain her. She is a businesswoman. She 2 (902) WP 8032/10 carries on business and trade in pulses and grains. She claims that she used to earn a far higher income earlier but which has dwindled to Rs.3,500/- to 4,000/- necessitating her to apply for maintenance. 4. The husband sued for divorce in 2004. She applied for maintenance in 2007. Her application has been disposed off in 2010. Her claim of the plummeted income is reflected in the income tax returns produced by her. She is a Chartered Accountant by profession. She has always carried on the same business. She has not shown any particular circumstances and reasons for her income having dwindled to such paltry amount years after the Petition was filed. She accepts that she earned a net amount of Rs.40,000/- after deduction of all her business expenses in the earlier years. 5. Her main essential expense is the telephone bills. She has one mobile phone and two landline phones. She has produced several bills of the year 2006 as well as 2007 and earlier 2008 showing the charges for her mobile telephones. They are in the region of Rs.20,000/- p.m. In fact the bills of late 2007 and early 2008 are in fact more than of that amount going up to Rs.40,000/- p.m. The application has been filed on 06.10.2007. The bills for the mobile telephones for the months of October, 2007 is Rs.42,000/- and November, 2007 is Rs. 47,000/-. The bills of the mobile telephones for the period after March, 2008 are not produced in the compilation of the wife filed in the Family Court. 6. The question that arises is that the main case of the wife is asking for maintenance from her husband 3 3 (902) WP 8032/10 years after the Petition was filed and well after the desertion, if any, because her business which was otherwise flourishing had ceased to flourish. If that was so her telephone calls would have dwindled proportionately. That has not been shown. Telephone bills in later period during which the application remained to be decided are not produced. 7. Interim maintenance is essentially required to be granted to a wife who cannot maintain herself. It has not to be granted to a wife who claims the loss of business from her husband. It is for the wife in this case to show that she can no longer maintain herself upon her business income having decreased. That is not shown in any manner except by her own income tax returns. 8. It is settled law that income tax returns filed by the husband are not alone determinative of his income. The same analogy must apply to a wife who is a businesswoman. The wife has not produced documentary evidence sufficient to prima facie show or reflect her financial position in the good and bad business periods to require the Family Court to determine the change in her income and the consequent financial position and her incapability of maintaining herself out of such income. Her claim to reduced business and accordingly reduced income would have to be ascertained at the trial upon her cross-examination. 9. Mr. Lalwani on behalf of wife has relied much upon the husband’s document of his income. Indeed he earns far more than the wife. His income tax returns reflect income and investment of huge amounts. The wife 4 (902) WP 8032/10 has however relied upon his income for the assessment year 2005-06 which is claimed to be Rs.73,00,000/-. That was the period during which she had own independent business and during which she chose not even to apply for maintenance. 10. Mr. Lalwani relied upon part cross-examination of the husband recorded by the Family Court. It shows the admission of the husband that he draws salary of Rs. 10,00,000/- in his partnership business as a partner with no share of profits. His cross-examination shows that he does not know his exact profit or even approximate profits. He refused to produce partnership deed on the ground that it is a confidential document. It shows that the husband’s partnership firm has 7 offices in 7 cities apart from Mumbai with a strength of work force of 900 employees and affiliation with KPMG world group of companies. 11. Based upon such part cross-examination Mr. Lalwani contended in this Writ Petition that the order of the learned Judge upon affidavits filed by the parties and the interim application shows a serious error which is required to be rectified in the Writ Petition upon a mere fact that the husband’s admitted income is Rs. 10,00,000/- whereas the income of the wife claimed by him is Rs.1,00,000/-. 12. If a wife had always earned and was capable of earning only Rs.1,00,000/-, it would beat the conscience of any Court not to grant the wife Rs.2,00,000/- as maintenance claimed by her to do power balancing required to be done in an application for maintenance. However a 5 (902) WP 8032/10 case of wife who is in business and who has shown her earnings to be Rs.3,500/- to 4,000/-, which is not even the salary of a peon in a commercial undertaking in present times and of which judicial notice is required to be taken by the Court, the same analogy in equity cannot be applied. 13. Of course the wife would be entitled to be given permanent maintenance and alimony taking into account her dwindled income, if at all, upon and after her cross-examination. 14. Mr. Lalwani drew my attention to the judgment of the Supreme Court in the case of Neeta Rakesh Jain Vs. Rakesh Jeetmal Jain II (2010) DMC 275 (SC). In that case the wife is shown not to have any independent source of income and was pursuing her studies of Ph.D. at the mercy of her elder sister who was supporting her. The Court observed that the income of both the parties to the marriage was to be considered. The Court has wide discretion in that behalf. The Court would also consider the means of the parties and the other relevant factors like social status, background of the parties and the economic dependence of the parties claiming maintenance. The Court observed that the detailed and elaborate exercise would not be necessary to pass an order of interim maintenance which by its very nature is temporary, but the Court has to take all the relevant factors into account and arrive at the reasonable amount. The observation cannot be disputed. In this case background of both the parties is that both are Chartered Accountants. The economic 6 (902) WP 8032/10 dependence of the wife is shown to be only from 2007 when she applied for maintenance. She never claimed economic dependence prior thereto though she was deserted and the Petition was filed since 2004. All the other relevant factors which are required to be taken into account in this case would essentially be her expenses of business which are essentially on her telephones. As aforesaid, the bills of prior period are produced and not of the relevant period. The few bills of the initial part of the relevant period show exorbitant expenses which are not commensurate with the amount of business claimed by her and income shown by her. The learned Judge has taken into account all these relevant facts and her background. She has specifically considered that the wife has not shown her expenses. The impugned order, therefore, cannot be faulted. 15. In another Judgment relied upon by Mr. Lalwani in the case of Radhika Narang & Ors. Vs. Karun Raj Narang & Anr. I (2009) DMC 814 (DB) the Division Bench of the Delhi High Court had laid down the relevant facts to be considered extracted from various earlier Judgments in paragraph 26 thereof. Mr. Lalwani contends that the scale and mode of living of the parties, the comfort and status that they enjoyed and the lady was accustomed are required to be considered in the application for interim maintenance as much as in an application for permanent maintenance. These have been considered to be applicable in the case in which the wife was sufficiently deprived of her lifestyle because she was used to style of living of her husband. The Court observed that she could not be put in a disadvantaged position. The Court observed that the human life is more precious than a ledger specially 7 (902) WP 8032/10 when children are involved. In that case, she was not given any maintenance for the period of 3 years which deprived her as well as her children of appropriate lifestyle. In this case such deprivation is not shown except from the fact that she earned as stated above without substantive documents in that behalf. 16. The learned Judge has nevertheless granted her an interim maintenance of Rs.50,000/- considering the case as a whole. 17. It may be mentioned that the grant of interim maintenance is essentially a temporary relief. It has to be granted upon a prima facie case. It no longer holds good upon complete evidence being led. It does not prevent a party from showing all material evidence which can substantiate his or her claim. That would be documentary evidence which could reflect true position of the income of the parties in the absence of which oral evidence could be taken and considered only upon cross- examination of that party at the final stage. The party claiming maintenance must accept a reasonable amount granted by the Court and proceed to show upon her evidence at the final hearing a more precise case. Until that is done the reasonable amount granted as interim maintenance cannot be interfered with in a Writ Petition. 18. Consequently Writ Petition is dismissed. Rule is discharged. ( ROSHAN DALVI, J.)