Sunday, February 23, 2014

Financially stable wife can’t claim maintenance: Bombay high court

Bombay High Court - Original Judgment
Bombay High Court

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO. 144 OF 2013
IN

M.J.PETITION NO. A - 382 OF 2008 Madhu Gupta ]

Age 61 years, Occ: Housewife ]
Residing at 504, Sheetal `A' Wing ]
Swami Samarth Nagar, ]
Off. Four Bungalows Andheri West ]
Mumbai-400 053 ].. Appellant
(Ori. Respondent)


Vs.


Pravin Kumar Gupta ]
Age 65 years, Retired ]
Residing at 1105, 11th floor ]
Panchavati C.H.S. Ltd. ]
Off Yari Road, Versova ]
Andheri (West), Mumbai-400 061 ]..Respondent
(Ori. Petitioner)

WITH

CIVIL APPLICATION NO. 137 OF 2013
IN
F.C.A.NO. 144 OF 2013
IN
M.J.PETITION NO. A-382 OF 2008
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Bombay High Court

Madhu Gupta ]
Age 61 years, Occ: Housewife ]
Residing at 504, Sheetal `A' Wing ]
Swami Samarth Nagar, ]
Off. Four Bungalows Andheri West ]
Mumbai-400 053 ].. Applicant/Appellant
(Ori. Respondent)
IN THE MATTER BETWEEN:
Madhu Gupta ]
Age 61 years, Occ: Housewife ]
Residing at 504, Sheetal `A' Wing ]
Swami Samarth Nagar, ]
Off. Four Bungalows Andheri West ]
Mumbai-400 053 ].. Appellant
(Ori. Respondent)

Vs.


Pravin Kumar Gupta ]
Age 65 years, Retired ]
Residing at 1105, 11th floor ]
Panchavati C.H.S. Ltd. ]
Off Yari Road, Versova ]
Andheri (West), Mumbai-400 061 ]..Respondent
(Ori. Petitioner)
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WITH
CIVIL APPLICATION NO. 16 OF 2014
IN
F.C.A.NO. 144 OF 2013
Pravin Kumar Gupta ]
1105, 11th floor ]
Panchavati C.H.S. Ltd. ]
Off Yari Road, Versova ]
Andheri (West), Mumbai-400 061 ]
Temporarily Residing at ]
40, Denzil Ave, ]
St. Clair, NSW 2759, ]
Sydney, Australia ]..Applicant/Respondent
IN THE MATTER BETWEEN:
Madhu Gupta ]
504, Sheetal `A' Wing ]
Swami Samarth Nagar, ]
Four Bungalows Andheri West ]
Mumbai-400 053 ].. Appellant
(Ori. Respondent)
Vs.
Pravin Kumar Gupta ]
at 1105, 11th floor ]
Panchavati C.H.S. Ltd. ]
Yari Road, Versova ]
Andheri (West), Mumbai-400 061 ]..Respondent
(Ori. Petitioner)
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.....
Mrs. Mrunalini Deshmukh and Ms. Devika Deshmukh along with
Mr. Mahesh Londhe and Ms. Radha Ved Advocates i/b M/s.
Sanjay Udeshi and Co. for Appellant in FCA No. 144 of 2013 and
Applicant in CAM No. 137 of 2013 and Respondent in CAM No.
16 of 2014
Mr. Dattatray P. Adarkar Advocate for Respondent in FCA No.
144 of 2013 and CAM No. 137 of 2013 and Applicant in CAM
No. 16 of 2014
.....
CORAM : SMT.V.K.TAHILRAMANI AND
SHRI. P.N.DESHMUKH, JJ.
DATED : FEBRUARY 11, 2014
JUDGMENT: [PER SMT. V.K.TAHILRAMANI,J.] :
1 Heard the learned counsel for the appellant-wife and
the learned counsel for the respondent-husband. By consent of
the parties, the matter is taken up for final hearing and
disposal. For the sake of convenience, hereinafter, the
appellant will be referred to as "the wife" and the respondent
will be referred to as "the husband".
2 This Family Court Appeal has been filed by the wife
against the judgment and order dated 22.10.2012 passed in
M.J. Petition No. A-382 of 2008 by the Family Court No.2,
Bandra, Mumbai, whereby her counter-claim for maintenance
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was dismissed. Admitted facts in this matter are that they
have two children i.e. one son Anindya and one daughter. Both
the children are married and they are settled abroad. The
husband had filed a petition for divorce on the ground of
cruelty which came to be dismissed. He has not challenged the
said decision in the petition for divorce. The wife had filed
counter-claim seeking judicial separation and maintenance of
Rs.15,000/- per month. The husband contested the counterclaim
by filing his Written Statement. The husband's petition
for divorce was dismissed on 13.1.2009 by the Family Court.
Thereafter, the wife adduced her evidence claiming for a
decree of judicial separation and maintenance of Rs.15,000/-.
On 13.8.2008, the Family Court exparte decreed the counterclaim
and accordingly decree of judicial separation was passed
and the husband was directed to pay Rs.25,000/- per month as
maintenance to the wife. The husband preferred Misc. Civil
Application for setting aside exparte decree passed on
13.8.2008. However, he did not challenge the decree of
judicial separation and he had only prayed for setting aside the
order relating to the maintenance. Misc. Civil Application was
granted on 19.3.2012. Thus, the decree passed on 13.8.2008
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in relation to maintenance, was set aside by order dated
19.3.2012. Thereafter, the wife led her evidence and the
evidence of her son Anindya and the husband adduced his
evidence.
3 It is well settled law that a wife who has no sufficient
permanent source of income, can only claim and get
maintenance from her husband who is having sufficient means.
The burden lies on the wife to prove that the husband has
refused and neglected to maintain her though he is having
sufficient means. The evidence of the wife and son Anindya
shows that the wife is staying separate since 2007 and the
husband has not given any amount to her towards
maintenance. It is an admitted fact that both the parties are
staying separately since the year 2007. As the decree for
judicial separation was granted in favour of the wife and the
decree of judicial separation has not been challenged by the
husband, on this ground the wife has a right to live separately
from husband. The husband has stated in his evidence that he
is staying in Australia and he is doing part-time work at Local
Community College (Nepean Community College). He has
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further stated that he was teaching three courses based on his
skills in Sales and Computers. Each course is of 8 lecturers of 2
hours duration each. He is paid 500 Australian Dollars post-tax
for the full course. His average monthly income post-tax was
400 Australian Dollars.
4 The learned counsel for the wife produced some
documents to show that the husband was a C.E.O. in XL2WIN
CONSULTANCY PVT. LTD. in Australia The said business is
conducted from 40 Denzil Avenue, St. Clair, NSW 2759. She
pointed out that one other firm i.e. Architectural Drafting and
Design Services also carries out business from the very same
address which shows that the husband is connected with the
said business. In order to support the claim that the husband is
connected with both the businesses, she pointed out that the
address of the said two businesses is the same as the
residential address of the husband. As far as these documents
are concerned, they were not produced before the Family
Court. No evidence was led in respect to these documents.
Even if the said documents are taken into consideration, they
do not show the income of the respondent-husband. Hence,
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these documents would be of no use to the appellant-wife.
5 In considering the prayer for maintenance, two issues
have to be considered viz. (1) whether the husband has
capacity to pay maintenance ? and (2) whether the wife has
any source of income to maintain herself ? The evidence of
the husband shows that he was earning an amount of 400
Australian Dollars per month. The wife has to prove that she
does not have any permanent source of income to maintain
herself. The wife is required to prove that she is not having
any permanent source of income and she is unable to maintain
herself. In order to prove the same, the wife has adduced her
evidence and evidence of her son Anindya. It is pertinent to
note that the wife has not specifically pleaded and stated in her
evidence that she is not having any permanent source of
income and that she is unable to maintain herself. It is further
pertinent to note that she has admitted in her crossexamination
in paragraph 52 that near about Rs.50 lakhs have
been deposited in the Banks as Fixed Deposits. As per Section
58 of the Evidence Act, admitted facts need not be proved.
Even otherwise the learned counsel for the appellant-wife has
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admitted that about Rs.50 lakhs is in the name of the wife in
the Bank. The evidence of the wife clearly shows that the wife
has invested Rs.50 lakhs in the Banks in Fixed Deposits and
she is getting interest on the said Fixed Deposits. In such case,
the appellant-wife could have produced and proved the Fixed
Deposit Certificates and rate of interest which she is getting.
Admittedly, she has not produced the Fixed Deposit
Certificates, therefore, it has not come on record that how
much interest she is getting. It is an admitted fact that the
wife is a senior citizen. In such case, she would get more
interest than the other depositors. If 9% is held to be the rate
of interest, then the wife would get Rs.4,50,000/- per year
which means that she would get Rs.37,500/- per month as
interest on Fixed Deposits of Rs.50 lakhs. The wife has stated
in her cross-examination at paragraph 48 that she is ready to
produce the Statements of Accounts of Mutual Funds standing
in her name alone but she has not produced the Statements of
Accounts of Mutual Funds. This shows that she has also made
investments in Mutual Funds in addition to Fixed Deposits
which clearly stand in her name but she has not produced the
same. If she would have produced the Statements of Accounts
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of Mutual Funds, then it would have gone against her,
therefore, she has not produced the same. In such
circumstances, an adverse inference is required to be drawn
against the appellant-wife and it is required to be held that she
is getting some dividends regularly from the investments made
in the Mutual Funds.
6 The wife has admitted in her evidence that she is
staying in Sheetal Apartment at Andheri, Mumbai. The flat in
Sheetal Apartment at Andheri, according to her, was bought
out of the money put in by her and her husband. The husband
has another flat which is also in Andheri in Panchavati Building.
The learned counsel for the respondent-husband has stated
that the flat has been given exclusively to the wife and she is in
exclusive possession of the same. This fact is admitted by the
learned counsel for the appellant-wife. In such case, there is
no question of giving rent for accommodation to the wife.
7 The learned counsel for the appellant-wife submitted
that though the Family Court had held that the wife has to
incur medical expenses, daily expenses, maintenance of
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society etc. yet, the Family Court has not awarded any
maintenance to the wife. She further pointed out that on
30.11.2013 the wife was required to undergo surgery for both
knees and the expenses for the said surgery came to about
Rs.10,39,000/-. She has further stated that the flat in which
the wife is staying is in dire need of repairs and she has
produced a copy of a letter of the Architect dated 9.1.2004
which shows that the flat needs repairs. Thus, it was submitted
that the wife would be required to incur expenses in relation to
the repairs of the flat also. As far as the documents relating to
the medical expenses for knee replacements are concerned,
the said expenses were incurred on 30.12.2013 which was
after the judgment and decree was passed in the present case.
The judgment and decree in the present case was passed on
22.10.2012 and the events mentioned in the documents have
occurred after the judgment and decree has been passed. In
view of this subsequent developments, the judgment passed
by the learned Judge of the Family Court cannot be faulted.
Similar is the situation in respect of the expenses for repairs of
the flat.
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8 It was contended on behalf of the wife that amount
was siphoned off by the husband from their joint account. The
said amount was about Rs.19,85,641/-. It is interesting to note
that the wife herself had not made any mention about the
same in her evidence. The son Anindya has made some
reference to such fact, however, no witness from the Bank has
been examined to prove that the husband had siphoned off
such amount from the joint account.
9 The learned counsel for the appellant-wife reiterated
time and again that the appellant wife was and is a home
maker and she has no independent source of income. It is also
an admitted fact that the wife has Rs.50 lakhs in Bank
Accounts, obviously, as the wife was not earning, the said
amount of Rs.50 lakhs must have come out of the husband's
earning. Besides the amount of Rs.50 lakhs which is deposited
in the Fixed Deposits in the name of the wife, it may be stated
that the husband had deposited Rs.2,00,000/- by way of
interim maintenance for the wife. The wife was allowed to
withdraw the said amount. She has deposited the said amount
in the Bank as Fixed Deposits which is admitted by her in her
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cross-examination in paragraph 58. If really the wife was in
need of money for her maintenance, then definitely she would
have spent the amount and would not have invested it in Fixed
Deposits in the Bank. This shows that the wife is having
sufficient money for her maintenance. The wife is getting at
least an amount of Rs.37,500/- per month from the Fixed
Deposits. In addition, she is getting some additional amount
of interest on Rs.2,00,000/- which has been invested by her
which was received by her by way of interim maintenance. In
addition to this amount, she is getting some amount by way of
interest on the money she has invested in Mutual Funds. All
these amounts are more than sufficient for her maintenance. It
is seen that the wife is having sufficient permanent source of
income to maintain herself.
10 The learned counsel for the respondent-husband
submitted that the wife is having sufficient means for her
survival and therefore, she is not entitled to get maintenance.
He has placed reliance on the ratio laid down by this Court in
the case of Shehnaz Arvind Mudbhatkal Vs. Arvind
Ramkrishna Mudbhatkal reported in 2011(6) Mh. L. J. 719.
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In the said case, this Court observed that the wife was earning
Rs.45,000/- per month as salary and she has received Rs.11
lakhs as back-wages. Her daughters were not dependent on
her. Therefore, this amount is sufficient to the wife for her
maintenance. This Court observed that in such case, the wife
is not entitled for maintenance from the husband. In the
present case, it is seen that the wife is getting more than
Rs.37,500/- per month as interest. She has more than 50 lakhs
in the bank. In addition, the applicant's son is providing money
for her maintenance and other expenses. No one is dependent
on her. Thus, the facts in the decision relied upon and the
facts in the present case are quite similar and the ratio would
apply to the facts of the present case.
11 Looking to the evidence on record, we are of the
opinion that the Judge of the Family Court has rightly held that
the appellant-wife is having sufficient income for her survival
and she has failed to prove that she is entitled for any
maintenance. Thus, we find no merit in the present Appeal.
Appeal is, therefore, dismissed.
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12 In view of dismissal of the Family Court Appeal, Civil
Application Nos. 137 of 2013 and 16 of 2014 do not survive and
are disposed of as such.
[SHRI. P.N.DESHMUKH, J.] [SMT. V.K.TAHILRAMANI, J.]
kandarkar
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SC Judgment: Need material evidence to prove dowry demand

CASE NO.:
Appeal (crl.) 222 of 2008
PETITIONER:
Ran Singh and Anr.
RESPONDENT:
State of Haryana and Anr.
DATE OF JUDGMENT: 30/01/2008
BENCH:
Dr. ARIJIT PASAYAT & P. SATHASIVAM
JUDGMENT:
J U D G M E N T
(Arising out of SLP (Crl.) No.3089 of 2006)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by a
learned Single Judge of the Punjab and Haryana High Court
allowing the Revision Petition filed under Section 401 of the
Code of Criminal Procedure, 1973 (in short the ‘Code’) which
was filed before it by Kurra Ram since deceased and
represented by his daughter i.e. respondent No.2 in the
present appeal.
3. Background facts in a nutshell are as follows:
A complaint was filed by the aforesaid Kurra Ram
alleging commission of offences punishable under Sections
498-A, 406, 323, 506, 148 and 149 of the Indian Penal Code,
1860 (in short the ‘IPC’) by Jaswant-son in law and husband
of his daughter-Saroj, Ran Singh and Raj Bala, the present
appellants who were father and mother of Jaswant and two
others namely, Jai Singh and Suman, the brother and married
sister of Jaswant.
It was stated in the complaint that Saroj got married to
Jaswant on 14.4.1994 and that she was harassed for dowry by
the aforesaid accused persons. Learned Additional Chief
Judicial Magistrate, Hissar, after recording preliminary
evidence of the complainant, decided to proceed against all the
accused persons for the alleged offences. Separate Revision
Petitions were filed by Jai Singh, Ran Singh and Suman taking
the stand that there is no offence made out so far as they are
concerned. Learned Additional Sessions Judge found that no
case was made out against aforesaid accused persons and
directed that proceedings would continue only against
Jaswant. The order dated 4.11.2003 disposing of the revisions
in the aforesaid manner was challenged by Kurra Ram in the
Revision Petition before the High Court. It was held by High
Court that there is no ground to proceed against Jai Singh and
Suman who may just be living in the house, but may not be
interfering in matrimonial problems of Saroj and Jaswant.
Therefore, the order of the Additional Sessions Judge was
upheld to that extent. But so far as the present appellants are
concerned the High Court inter alia observed as follows:
“However, when articles of dowry are handed
over to elder members in the family that will
mean that those were handed over to Ran
Singh and Raj Bala i.e. father and mother of
the husband who could misappropriate. It is
they who can practice cruelty for less dowry or
otherwise.”
(Underlined for emphasis)
The High Court noted that police had earlier registered a
case and had sent cancellation report and thereafter the
complaint was filed by Kurra Ram who appeared as PW-1, as
his son Rajesh appeared as PW-2 and Saroj as PW-3.
4. Learned counsel for the appellants submitted that the
High Court failed to notice that some customary articles were
given to relatives of the bridegroom. That cannot be covered by
the expression ‘dowry’. High Court noticed the fact that the
complainant tried to rope even a married sister who was living
far away and the brother, which shows the tendency to falsely
implicate them. Reference is also made to the following
observations of the High Court:
“..They are close relatives but the fact remains
that an effort is made by the complainant to
implicate as many persons as possible, in such
matters.”
5. Learned counsel for the respondent-State and the
complainant submitted that it is not a case where the
Additional Sessions Judge should have interfered and the High
Court has therefore rightly set aside the order dated 4.11.2003
which was impugned before it.
6. Section 2 of the Dowry Prohibition Act, 1961 (in short
‘Dowry Act’) defines “dowry” as under:-
Section 2. Definition of ‘dowry’ In this Act,
‘dowry’ means any property or valuable
security given or agreed to be given either
directly or indirectly
(a) by one party to a marriage to the
other party to the marriage; or
(b) by the parents of either party to a
marriage or by any other person, to
either party to the marriage or to any
other person,
at or before or any time after the marriage in
connection with the marriage of the said
parties, but does not include dower or mehr
in the case of persons to whom the Muslim
personal law (Shariat) applies.
Explanation I- For the removal of doubts, it is
hereby declared that any presents made at
the time of a marriage to either party to the
marriage in the form of cash, ornaments,
clothes or other articles, shall not be deemed
to be dowry within the meaning of this
section, unless they are made as
consideration for the marriage of the said
parties.

Explanation II- The expression ‘valuable
security’ has the same meaning in Section 30
of the Indian Penal Code (45 of 1860).”
7. The word “dowry” is defined in Section 2 of the Dowry
Act. Thus, there are three occasions related to dowry. One is
before the marriage, second is at the time of marriage and the
third “at any time” after the marriage. The third occasion may
appear to be unending period. But the crucial words are “in
connection with the marriage of the said parties”. Other
payments which are customary payments e.g. given at the
time of birth of a child or other ceremonies as are prevalent in
different societies are not covered by the expression “dowry”.
(See Satvir Singh v. State of Punjab (2001 (8) SCC 633))
.
8. The High Court has fallen in grave error while observing
that present appellants “could misappropriate” and “who can
practice cruelty”. The conclusions to say the least are
presumptuous. Learned Additional Sessions Judge by a well
reasoned order had held that there was no material to show
that demand for any dowry was made
and an attempt was
made to rope in many persons. When the High Court was
interfering with such conclusions arrived at on facts it ought
to have indicated the reasons necessitating such interference.
That has not been done and on the contrary on presumptuous
conclusions the order of learned Additional Sessions Judge
has been set aside.
9. Reasons introduce clarity in an order. On plainest
consideration of justice, the High Court ought to have set forth
its reasons, howsoever brief, in its order indicative of an
application of its mind. The absence of reasons has rendered
the High Court’s judgment not sustainable.
10. Even in respect of administrative orders Lord Denning
M.R. in Breen v. Amalgamated Engineering Union (1971 (1) All
E.R. 1148) observed “The giving of reasons is one of the
fundamentals of good administration”. In Alexander Machinery
(Dudley) Ltd. v. Crabtree (1974 LCR 120) it was observed:
“Failure to give reasons amounts to denial of justice”. Reasons
are live links between the mind of the decision taker to the
controversy in question and the decision or conclusion arrived
at”. Reasons substitute subjectivity by objectivity. The
emphasis on recording reasons is that if the decision reveals
the “inscrutable face of the sphinx”, it can, by its silence,
render it virtually impossible for the Courts to perform their
appellate function or exercise the power of judicial review in
adjudging the validity of the decision. Right to reason is an
indispensable part of a sound judicial system, reasons at least
sufficient to indicate an application of mind to the matter
before Court. Another rationale is that the affected party can
know why the decision has gone against him. One of the
salutary requirements of natural justice is spelling out reasons
for the order made, in other words, a speaking out. The
“inscrutable face of a sphinx” is ordinarily incongruous with a
judicial or quasi-judicial performance.
11. It is to be noted that the High Court itself has held that
there was an attempt to rope in many persons and it did not
find any merit or challenge to the discharge of the married
sister and the brother.
12. Above being the position, the impugned order of the High
Court cannot be maintained and is set aside. We make it clear
that we have not expressed any opinion on merits so far as
husband Jaswant is concerned.
13. The appeal is allowed to the aforesaid extent.