Case: Shama Rahul Moholkar @ Shama Vasant Padale &amp; Another Vs. Rahul Deorao Moholkar &amp; Another

sources of income. Respondent has done his Bachelor in Engineering from V.J.T.I, Matunga, Mumbai and Masters in Management Studies from NMIS, Mumbai. He is also Director of Xlrite Consulting Private Ltd and having his office at Bhagatsing Road, Mumbai. He owns Tata Indigo Car. Just before the proceeding in the Family Court were filed, he has sold out 2 BHK flat at Mulud (W) and was in the process of purchase of flat at Lokhandwala Complex. He stays in a bungalow, belonging to his father at NIBM Road, Pune. He has various bank accounts, numerous credit cards. His profile seen on screen shots produced on record of the Family Court indicates that his name is the owner of M/s Canary Recruitment and Training Consultancy. Respondent has not disputed the fact that he is running this Xlrite Consultancy Pvt. Ltd.14. However, respondent has produced on record the income tax returns of the last three years showing his income to be around Rs.1,80,000/- per annum. As rightly pointed out by learned counsel for the petitioner, all these three returns are filed on the same date after the divorce petition was instituted in the Court. Hence much reliance cannot be placed on these income tax returns. Otherwise also, law is well settled that income tax return do not reflect true income of the parties and the Court has to assess the said income on the basis of documentary evidence.15. Here in the case, one can take into consideration the profile of the respondent husband filed on Jeevan Sathi.com stating his annual income around Rs.25 lacs and above and further states that he was having his own income from HR Recruitment and Consultancy Training Software Services for clients across India.16. It cannot be accepted that immediately after filing of the divorce petition his income is reduced. Conversely one can safely conclude that this attempt of showing reduced or no income, after filing of matrimonial proceeding appears to be a routine phenomena of which notice is taken by the Honble Supreme Court in Manish Jain -vs- Akanksha Jain, CDJ 2017 SC 352, by observing in paragraph No. 39 as follows:-It has now become a matter of routine that as and when an application for maintenance is filed, the non applicant becomes poor displaying that he is not residing with the family members if they have a good business and movable and immovable properties in order to avoid payment of maintenance. Courts cannot under these circumstances close their eyes when tricks are being played in a clever manner17. Thus, the fact remains that respondent herein is well qualified and having regard to life style of both the parties, it can hardly be accepted that he is unable to contribute an amount of Rs.25,000/- per month towards interim maintenance of his daughter Siddhi.18. In addition to that, as rightly held by the Family Court, respondent has to pay educational expenses of daughter Siddhi. Therefore, as regards the writ petition of respondent, this Court does not find any merit therein to entertain the same and hence the same deserves to be dismissed.19. As regards the writ petition of petitioner wife, as stated above she is also a very well qualified person. Her qualifications are MMS, HR, DBM, DID. She is convent educated. She had worked with the company for over 7 years. At present also in her maiden name, Shama Vasant Padale, she is Director of ERP Corporation Pvt. Ltd. Her name is accordingly registered with Ministry of Corporate Affairs. The print out thereof is also produced on record. Copy of her consent is also produced on record.20. When these documents were produced in the Court by respondent, she has filed an affidavit before the Family Court stating that she is only a nominal or formal Director and on account busy schedule of the child she is not in active participation in the work. However, the fact remains that she has not produced on record her income tax returns for the last three years to prove that she is not having any income therefrom. However, the respondent has produced on record documents to show that earlier petitioner was having 1/3 share in the said company as a Director and now one of the Directors having been resigned, she is practically having 50% share. Even if it is accepted that the offices of the said company are at Bangalore and at Mumbai and presently she is placed in Pune, being a Director, it is not necessary that she should participate actively in the day-to-day affairs of the company. She can exercise supervisory control over the affairs of the company even from Pune and get her share in the dividend and profits of the company. Therefore, her case that she is having no source of income at present and her father is maintaining her also cannot be accepted.21. Assuming that there is some difference in the earning and income of the petitioner and respondent, provisions of interim maintenance are not made for equalising their income but to ensure that either spouse does not suffer because of paucity of the income in the course of the proceeding. Where both the husband and wife are earning and having good income, merely because there is some difference in the respective income earned by them, an order of maintenance cannot be justified, especially, if one has regard to the provision of section 36 of the Special Marriage Act, 1954 which provides that only when it appears to the Court that wife has no independent income sufficient for her support and necessary expenses of the proceedings, the Court can order the husband to pay her expenses of the proceeding and also interim maintenance. Here in the case the petitioner wife is having independent source of income. In such situation she cannot be entitled for interim maintenance. Since both the petitioner and respondent are on equal footing and earn more or less some income, the Family Court, has rightly rejected the wifes claim for interim maintenance.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]13. This is a peculiar case in which both the husband and wife are highly qualified, well off and having their own independent sources of income. Respondent has done his Bachelor in Engineering from V.J.T.I, Matunga, Mumbai and Masters in Management Studies from NMIS, Mumbai. He is also Director of Xlrite Consulting Private Ltd and having his office at Bhagatsing Road, Mumbai. He owns Tata Indigo Car. Just before the proceeding in the Family Court were filed, he has sold out 2 BHK flat at Mulud (W) and was in the process of purchase of flat at Lokhandwala Complex. He stays in a bungalow, belonging to his father at NIBM Road, Pune. He has various bank accounts, numerous credit cards. His profile seen on screen shots produced on record of the Family Court indicates that his name is the owner of M/s Canary Recruitment and Training Consultancy. Respondent has not disputed the fact that he is running this Xlrite Consultancy Pvt. Ltd.14. However, respondent has produced on record the income tax returns of the last three years showing his income to be around Rs.1,80,000/per annum. As rightly pointed out by learned counsel for the petitioner, all these three returns are filed on the same date after the divorce petition was instituted in the Court. Hence much reliance cannot be placed on these income tax returns. Otherwise also, law is well settled that income tax return do not reflect true income of the parties and the Court has to assess the said income on the basis of documentary evidence.15. Here in the case, one can take into consideration the profile of the respondent husband filed on Jeevan Sathi.com stating his annual income around Rs.25 lacs and above and further states that he was having his own income from HR Recruitment and Consultancy Training Software Services for clients across India.16. It cannot be accepted that immediately after filing of the divorce petition his income is reduced. Conversely one can safely conclude that this attempt of showing reduced or no income, after filing of matrimonial proceeding appears to be a routine phenomena of which notice is taken by the Honble Supreme Court in Manish JainAkanksha Jain, CDJ 2017 SC 352, by observing in paragraph No. 39 ashas now become a matter of routine that as and when an application for maintenance is filed, the non applicant becomes poor displaying that he is not residing with the family members if they have a good business and movable and immovable properties in order to avoid payment of maintenance. Courts cannot under these circumstances close their eyes when tricks are being played in a clever manner17. Thus, the fact remains that respondent herein is well qualified and having regard to life style of both the parties, it can hardly be accepted that he is unable to contribute an amount of Rs.25,000/per month towards interim maintenance of his daughter Siddhi.18. In addition to that, as rightly held by the Family Court, respondent has to pay educational expenses of daughter Siddhi. Therefore, as regards the writ petition of respondent, this Court does not find any merit therein to entertain the same and hence the same deserves to be dismissed.19. As regards the writ petition of petitioner wife, as stated above she is also a very well qualified person. Her qualifications are MMS, HR, DBM, DID. She is convent educated. She had worked with the company for over 7 years. At present also in her maiden name, Shama Vasant Padale, she is Director of ERP Corporation Pvt. Ltd. Her name is accordingly registered with Ministry of Corporate Affairs. The print out thereof is also produced on record. Copy of her consent is also produced on record.20. When these documents were produced in the Court by respondent, she has filed an affidavit before the Family Court stating that she is only a nominal or formal Director and on account busy schedule of the child she is not in active participation in the work. However, the fact remains that she has not produced on record her income tax returns for the last three years to prove that she is not having any income therefrom. However, the respondent has produced on record documents to show that earlier petitioner was having 1/3 share in the said company as a Director and now one of the Directors having been resigned, she is practically having 50% share. Even if it is accepted that the offices of the said company are at Bangalore and at Mumbai and presently she is placed in Pune, being a Director, it is not necessary that she should participate actively in theaffairs of the company. She can exercise supervisory control over the affairs of the company even from Pune and get her share in the dividend and profits of the company. Therefore, her case that she is having no source of income at present and her father is maintaining her also cannot be accepted.21. Assuming that there is some difference in the earning and income of the petitioner and respondent, provisions of interim maintenance are not made for equalising their income but to ensure that either spouse does not suffer because of paucity of the income in the course of the proceeding. Where both the husband and wife are earning and having good income, merely because there is some difference in the respective income earned by them, an order of maintenance cannot be justified, especially, if one has regard to the provision of section 36 of the Special Marriage Act, 1954 which provides that only when it appears to the Court that wife has no independent income sufficient for her support and necessary expenses of the proceedings, the Court can order the husband to pay her expenses of the proceeding and also interim maintenance. Here in the case the petitioner wife is having independent source of income. In such situation she cannot be entitled for interim maintenance. Since both the petitioner and respondent are on equal footing and earn more or less some income, the Family Court, has rightly rejected the wifes claim for interim maintenance.