1 WP-1885-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION WRIT PETITION NO.1885 OF 2011 Shirish Bhalchandra Ghan ..Petitioner Vs Anupama Shirish Ghan ..Respondent -- Mr.N.R.Bubna, for petitioner. Mr.Ajit Kulkarni, for respondent. -- CORAM : R.G.KETKAR, J. DATE : 27 th SEPTEMBER, 2011 P.C.: Heard Mr.N.R.Bubna, learned counsel for the petitioner and Mr.Ajit Kulkarni, learned counsel for the respondent. 2] Rule. Mr.Kulkarni, learned counsel waives service. By consent of the parties, Rule is made returnable forthwith and is heard finally. 3] By this petition, the husband has challenged the judgment and 2 WP-1885-11.sxw order dated 8 th December, 2010 passed by the learned Principal Judge, Family Court No.1, Pune below exhibit 5 in Petition No.A-1046 of 2007. By that order, the Family Court allowed the application made by the respondent wife and directed the petitioner herein to pay interim maintenance at the rate of Rs.10,000/- per month to the respondent – wife and interim maintenance at the rate of Rs.5,000/- per month for each children i.e.Rs.10,000/- per month to the children. The learned Family Court has, thus, directed the petitioner to pay interim maintenance at the rate of Rs.20,000/- per month from the date of application dated 12 th November, 2007 till the disposal of the petition. In addition, the Family Court directed the petitioner to pay Rs.7,000/- towards expenses of litigation. 4] In support of this petition, Mr.Bubna contended that the Family Court was impressed by the investments made by the petitioner as reflected from the impugned order. The impugned order reproduces the table given by the petitioner in his affidavit at exhibit 88. However, the Family Court failed to appreciate that the petitioner has obtained a loan from H.D.F.C. Bank and from that amount, he had made investment in fixed deposit. He further submitted that the 3 WP-1885-11.sxw respondent – wife is highly educated in the sense she is graduate in Physics, holding Advance Diploma in Computer Software and System Analyais. She has also completed two years’ Certificate Course in Web Page Designing and two years’ course in Animation. She is therefore capable of earning handsomely. The Family Court has totally ignored this aspect while passing the impugned order. He also pointed out that the respondent has filed Income Tax return which clearly shows that her net income per month is Rs.15,830/-. Mr.Bubna submitted that the Income Tax return of the petitioner shows that his monthly income is Rs.29,558/- and that he is ready and willing to maintain his children. He, therefore, submitted that the Family Court has awarded excessive maintenance to the respondent and therefore, the said order deserves to be set aside or needs to be modified so that the petitioner will be in a position to pay the maintenance. 5] On the other hand, Mr.Kulkarni supported the impugned order. He submitted that in the written statement filed by the petitioner – husband in P.A.No.1046 of 2007, it has been averred that he is well educated and highly qualified medical professional. The petitioner 4 WP-1885-11.sxw has a clinic at Nashik and the petitioner is also busy in attending medical obligations. He, further, submitted that the petitioner gifted a Micro Motor to Amol (his brother) on his clearing the Master of Surgery in E.N.T. for performing microscopic ear surgeries and also gifted Amol’s wife a set of adult and pediatric Laryngoscopes on her become an Anesthesiologist. According to Mr.Kulkarni the gifts are worth roughly Rs.Four lacs. Mr.Bubna disputed this statement. Mr.Kulkarni also invited my attention to the table given by the petitioner in affidavit exhibit 88 wherein, on 29 th November, 2007, the petitioner had advanced loan of Rs.Two lacs to his friend. He submitted that the petitioner had invested the some amount in Fixed Deposits as also received Rs.1,90,000/- on 19 th March, 2008 after sale of mutual fund. He, therefore, prayed that the petition deserves to be dismissed. 6] I have considered rival submissions made by the learned counsel for the parties. It is not in dispute that the petitioner is a medical professional. He has also gifted expensive items to his brother and his wife as mentioned in paragraph 14 of the written statement. He has also advanced Rs.Two lacs by way of loan to his 5 WP-1885-11.sxw friend on 29 th November, 2007. He received Rs.1,90,000/- on 19 th March, 2008 after sale of mutual fund. Perusal of table extracted in the impugned order would indicate that the petitioner is investing huge amount in fixed deposits. Mr.Bubna submitted that as when the fixed deposit is matured, the petitioner thereafter has reinvested the said amount in fixed deposit. It, therefore, cannot be said that the petitioner had made huge investment in fixed deposits. The learned Judge of the Family Court considered this aspect. In paragraph 4 of the impugned order, he has observed that Income Tax return is not sole guide for determining income of the party and the Court is not necessarily bound by Income Tax returns of the party and is entitled to take into consideration all factors such as status of the parties, both social and financial, while fixing the amount of maintenance. In support of this preposition, he relied upon the judgment of this Court in the case of Vinod Dularai Mehata Vs. Kanak Vinod Mehata, AIR 1990 Bom.120-1989 Bom.C.R.217. The submission made by Mr.Bubna that the monthly income of the petitioner is Rs.29,558/- is evident from the Income Tax return, cannot be accepted having regard to the fact that the petitioner is a highly qualified medical professional. In paragraph 5, the learned Judge of the Family Court 6 WP-1885-11.sxw came to the conclusion that his income should be at least between Rs.50,000/- and Rs.60,000/- per month and consequently, based upon this, he awarded maintenance of Rs.20,000/- per month. I do not find that the learned Judge of the Family Court committed any error in awarding maintenance at the rate of Rs.20,000/-. 7] In the case of Rekha Deepak Malhotra Vs.Deepak Jagmohan Malhotra, AIR 1999 Bom. 291, this Court has held that while fixing the interim maintenance, the Court has to take into account several factors such as status of parties, reasonable wants of the claimant, income and property of the claimant, number of dependents on the husband etc. Paragraph 10 of that judgment reads as under :- 10.The amount of maintenance would have to be fixed by taking a rational and balanced view of various factors. The Court has to be guided by the relevant provisions of the Act and the object of sections 18 and 23. Thus the Court has to bear in mind the status of the parties, reasonable wants of the claimant, the income and property of the claimant and the number of persons whom the husband has to maintain. Whilst it is important to ensure that the maintenance amount is sufficient to enable the wife to live in somewhat the same degree of comfort, as 7 WP-1885-11.sxw in the matrimonial home, the amount of maintenance should not be so exorbitant that the husband is unable to pay. By adoption of such a course, no purpose would be served. In other words, the amount of maintenance should not be punitive in nature. It should aid the wife to live in a similar style as she enjoyed in the matrimonial home. It should not expose the husband to unjustified contempt or other coercive proceedings. On the other hand the amount of maintenance should not be so low, as to make the order meaningless. Naturally, there can be no mathematical exactitude, in these matters. The Court has to take a general view, and try to fix an amount which would be by and large acceptable to both the husband and the wife. 8] In the case of Jasbir Kaur Sehgal Vs. District Judge, Dehradun and others, (1997) 7 SCC 7 the Apex Court has considered the factors such as (i) status of parties and mode of life the wife was used to and capacity to pay of husband after allowing for his own expenses and obligations. (ii) Maintenance should permit reasonable comfort to the wife and ability to prosecute her case, yet should not be excessive or extortionate. (iii) Assessment of conjecture and guesswork by Court permissible. (iv) Attempt by husband to conceal 8 WP-1885-11.sxw his true income would justify adverse inference by the Court about his stated income. 9] In my opinion, having regard to the status of the petitioner – husband that he is a Surgeon by profession, the Family Court was justified in fixing interim maintenance. Mr.Bubna submitted that the wife is also highly qualified and is capable of earning. She is also presently working as Designer and her Income Tax return shows that her net income is Rs.15,800/- per month. Mr.Kulkarni has submitted that in the affidavit filed before the lower Court, it is stated she is no more in the employment. 10] Taking overall view of the matter, I do not find that the learned Judge of the Family Court has awarded excessive maintenance. As held by the Apex Court in the case of Jasbir Kaur (supra), the Court has to take into consideration the status of the parties and the mode of life which the wife used to live as also capacity of the husband to pay maintenance. This is more so having regard to the fact that the Court has decided the interim maintenance application and the main proceedings are pending where parties will be at liberty to 9 WP-1885-11.sxw substantiate their respective claims by leading evidence. Taking into account these factors, in my opinion, the Family Court was justified in passing the impugned order. It cannot be said that the learned Judge of the Family Court committed any error of law apparent on the face of record or that the impugned order suffers from perversity. 11] In the result, petition fails and the same is dismissed. Rule discharged with no order as to costs. [R.G.KETKAR, J.]