1 WP.1866.2009.sxw mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION WRIT PETITION NO. 1866 OF 2009 Abhinav R. Chandra ...Petitioner Vs. Aditi Chandra ...Respondent Ms. Mrinalini Deshmukh a/w. Mr. Subhash Jadhav, Mr. Raghavendra Singh, Advocates for the Petitioner Mr. Ashish Kamat i/b. Mr. Sanjay S. Gawde for the Respondent CORAM : SMT. ROSHAN DALVI, J. DATED : 3RD MARCH, 2011 P.C. : 1. Rule. Made returnable forthwith. 2. The Petitioner husband has challenged the order of interim maintenance of Rs.80,000/- for the wife and the child passed by the then Principal Judge, Family Court, Mumbai on 31 st July 2008. The parties married on 14 th April 2003, had an issue on 2 nd August 2004, and separated from 26 th December 2006. The interim maintenance application has been taken out by the wife for herself and her son amongst other reliefs in a petition for divorce and other reliefs. The wife has applied for return of ornaments or its value, maintenance, residential 2 WP.1866.2009.sxw accommodation and directions for disclosure for husband’s income and assets. She has essentially pressed for maintenance for herself and her son. 3. The impugned order has considered the income of the husband as also of the wife, the expenses of the husband alongside the expenses incurred by the wife for the child’s education to arrive at the amount of maintenance payable by the husband for his wife and child. 4. The husband earlier served in India and later shifted to Japan. At the time the application was considered the learned Judge took into account the salary slip of the husband, which was for the month of June 2008. 5. The husband contended before the Family Court that he earned 700000 Yen per month equivalent to Rs.2,48,500/-. He showed an expenditure equivalent to Rs.2,19,960/- per month and contended that he was left with only Rs.28,450/- balance amount from which he could pay maintenance to his wife and son. The learned Judge saw that the amount claimed by the husband to be his salary was incorrect upon seeing his one salary slip of May 2008. The basic salary of the Petitioner shown therein is 833,200 Yen. The learned Judge further considered the lunch allowance of Rs.63,900/- equivalent to Rs.18,600 Yen that the husband got aside from his salary. 3 WP.1866.2009.sxw Incidentally the husband further received Rs.26,400 Yen by way of health insurance allowance and Rs.5,301 Yen by way of employment insurance. 6. The learned Judge, therefore, considered that even upon deduction of 50% from expenses Rs.32,000/- was saved. This was on the footing that the learned Judge considered the other heads of expenses shown by the husband to be true. The learned Judge, therefore, computed a reasonably accurate figure of the salary actually earned by the husband instead of the incorrect figure shown by him. The learned Judge added the difference in the figure of his actual salary and his contended salary being equivalent to Rs.52,000/-, added the total savings in the expenses of Rs.32,000/- and the husband’s admitted savings of Rs.28,000/- totalling to Rs.1,11,540/- as the minimum amount disbursible from from his salary which could be utilised for maintenance of his wife and child. 7. The learned Judge further considered the salary of the wife, which was at that time from Mahindra & Mahindra Financial Services Ltd. The gross salary of Rs.39,585/- was seen alongside the statutory deductions for Provident Fund, Professional tax and Income tax to derive at the net salary of Rs.29,050/-. The learned Judge further computed the monthly salary of the wife upon taking into account the salary shown by her which was of 20 days. Hence, he concluded the total 4 WP.1866.2009.sxw salary of the wife to be Rs.36,000/-. 8. The calculations of the learned Judge are not only correct, but rather accurate. 9. Both the parties tried to overreach the Court in their earnings. The husband claimed a lower salary and showed larger expenses. The wife contended that she was a housewife at the time of the filing of the Petition when she was in fact earning. The Learned Judge considered her salary slips to derive her monthly earnings. 10.The parties then had a child, who has started attending the preschool. The learned Judge considered the payment of fees including the extra curricular activities, computer fees, snacks etc., and excluded the transportation and canteen charges from the fee receipt of Rs.46,300/- and the various other expenses required to be met for the upbringing and education of the child. The learned Judge computed Rs.60,000/- per year to be just and reasonable expenses for him. The learned Judge thereafter took into account the net savings of the husband, the income of the husband and verified the total savings of the couple. 11.Upon the husband’s contention that the wife had a bank account having Rs.2,00,000/- and DMAT account showing 5 WP.1866.2009.sxw securities worth Rs.40,000/- for which she has invested, the learned Judge gave a concession in the payment of maintenance to the husband towards those investments for Rs. 2540/- per month as income derived from such investments. Consequently, the learned Judge rightly considered the disposable income of the husband which was required to be utilised partly for the maintenance of the wife and fully for the maintenance and education of the child totalling to Rs. 80,000/- as just and proper payable to the wife pending the petition. 12.It must be remembered that the wife lives in Mumbai and the husband in Tokyo, Japan. The wife claims to have been deserted. She lives with her mother. She applied for residence as also maintenance. The learned Judge has not granted any separate residence or any amount for obtaining separate residence. The learned Judge has granted the lump sum amount, which may be expended by the wife from her income and savings also for residence as she deemed fit. The amount of maintenance, which must include the aspect of residence, is, therefore, a lump sum amount as is usually computed. 13.It has been argued on behalf of the husband that the expenses in Japan are exorbitant, leaving very little as savings after he maintains himself which has been not considered by the learned Judge. In fact the learned Judge made a correct 6 WP.1866.2009.sxw arithmetical calculation for the amount for food stated by the husband to have been spent despite allowance for lunch granted by the Company. The learned Judge has accepted the other heads of expenses pending the Petition. 14.The argument of Mr. Kamat appearing for the wife that it hardly behoves the husband, who has applied for restitution of conjugal rights and challenged the wife’s Petition for divorce and requires the wife and son to join him in Japan, to show that the standard of living in Japan would leave Rs.28000/- out of his salary of Rs.2.88 lakh Yen to support them, indeed stands to reason. 15.The order of the learned Judge, therefore, cannot be faulted with regard to the computation of maintenance amount. 16.It may be mentioned that to understand the present position the parties were directed to produce their current salary slips. The husband has produced computer printouts showing a single letter in Japanese language on the top and several letters in Japanese language on the bottom of the page. The entire salary slips for the months June to November 2010 pending the Writ Petition produced as directed by the Court show precisely the same amounts earned by the husband as also deducted from salary which are identical to what the husband earned in June 2008. Consequently, the argument of 7 WP.1866.2009.sxw Mr. Kamat that this may be mere computer printouts taken by the husband of the previous salary showing the later months of earning which are incorrect would also stand to reason. The salary slips are neither verified as true nor signed by any authority. They are mere computer printouts. 17.Under these circumstances the precise amounts of maintenance, whether they be increased maintenance or reduced maintenance, could only be further computed upon the entire evidence being led and this would include essentially the husband’s cross examination. After interim maintenance was granted, the cross examination of the wife has been conducted in the wife’s petition for divorce and other reliefs. Her cross examination, which has been on the question of maintenance alone, has been extensively recorded on 23 rd September 2010, 28 th September 2010, 29 th September 2010 and 1 st October 2010. That part of the cross examination having been completed, the husband has left India and has since not returned and hence, he has not been brought to trial. 18.Under the aforesaid circumstances in which the husband’s income, expenses, the wife’s income and taxes and the son’s expenses are rightly considered by the learned Judge and the husband has yet been far remote from his own cross examination, the cross examination of the wife sought to be relied upon by Ms.Deshmukh on behalf of the husband cannot 8 WP.1866.2009.sxw even be considered. 19.No case for interference in the Writ Petition under Article 227 of the Constitution of India, is, therefore, made out. 20.It would be improper not to proceed with the trial in the suit from October 2010 and to contest the interim order of maintenance pending the trial. 21.The Writ Petition is, therefore, dismissed. Rule discharged. 22.The amount already deposited by the Petitioner shall be allowed to be withdrawn by the wife. (SMT. ROSHAN DALVI, J.)