ZALAK D/O DIPAKBHAI M. SHAH v. SANJAY INDRAVADAN PARIKH
2018-01-24
A.Y.KOGJE, AKIL KURESHI
body2018
DigiLaw.ai
JUDGMENT : MR.JUSTICE AKIL KURESHI, J. 1. These proceedings are taken-up for final hearing at the admission stage. First Appeal is filed by the wife challenging judgment of the Family Court, Ahmedabad, dated 20.12.2016 by which, the prayer of the appellant for enhancement of the monthly maintenance came to be rejected. 2. History of the case which can be briefly recorded is as under: Appellant and respondent were married according to Hindu rites on 06.07.1992. Soon after the marriage, disputes arose between the husband and wife. Eventually, wife filed petition for dissolution of marriage in the year 1999 which was renumbered as a Family Suit No. 668 of 2000. The learned Judge of the Family Court granted a decree of dissolution of marriage by her judgment dated 29.08.2005. Simultaneously, she directed the husband to pay a sum of Rs. 4000/- per month to the wife towards alimony till she remarries and a further sum of Rs. 3500/- to the minor child till he becomes major. This judgment achieved finality when the appeal of the husband came to be dismissed for the reasons with which we are not concerned. 3. The husband thereafter filed Civil Misc. Application No. 106 of 2014 before the Family Court seeking reduction of the maintenance to be paid to the wife and the son. Wife appeared and filed a written statement seeking enhancement of the maintenance amount. Case of the husband was that the fixation of the alimony in favour of the wife had to be reduced. The wife herself was earning by running a beauty parlour. The contentions of the wife were that the respondent had not disclosed the correct income and that she herself had no source of earning. Family Court, by the impugned judgment, dismissed the prayers of both sides. Husband's request for reduction of the maintenance was rejected so also that of the wife for enhancement. In the meantime, the son had achieved majority and as per the original order of the Family Court, husband's liability to pay maintenance to him ceased. 4. Alongwith the First Appeal, the wife also filed Civil Application for interim enhancement of the alimony. She pointed out that in last few years, the husband had made multiple trips abroad. Before the Family Court, he had not produced several relevant documents though called upon, such as, income tax returns and his source of income.
4. Alongwith the First Appeal, the wife also filed Civil Application for interim enhancement of the alimony. She pointed out that in last few years, the husband had made multiple trips abroad. Before the Family Court, he had not produced several relevant documents though called upon, such as, income tax returns and his source of income. In such Civil Application, we had passed a detailed order dated 17.11.2017 asking the husband to supply following documents and details: “(1) His income tax returns for the last three years. (2) His passport, if he has one. (3) Details of immovable property which he owns or has share if any. (4) Details of vehicles, if any, owned by him currently or in last five years. (5) His salary statement from his current employer. (6) The details of his bank accounts either held individually or jointly along with the bank statements of last two months. (7) His investment in shares or mutual funds currently held by him. (8) Details of current balances in his PF account and PPF account, if any.” 5. After the said order was passed by the Court, both sides have filed affidavits and produced documents. Gist of these pleadings and documents on record is as under: (i) According to the husband, he is currently earning Rs. 13,000/- per month as a working partner of a partnership firm constituting of himself, his current wife whom he married after divorce from the appellant and his mother in the ratio of 50:40:10 respectively. Such partnership firm is engaged in running training institute by the name of Advance Analytical Research and Training Institute. (ii) Learned counsel for the respondent has produced a deed of the said partnership as also the returns filed by the said partnership firm. In the assessment year 2015-16, the partnership had declared a gross profit of Rs. 2,05,836/-. (iii) By an order passed by the Family Court on 29.08.2005, the respondent had to pay a monthly alimony of Rs. 5,000/- to the wife, Rs. 3500/- to the son till he attains majority. Now that the son has attained majority, the respondent has to pay a total of Rs. 4,000/- to the appellant. (iv) He has now in the meantime remarried and we are informed he has two young children also to look after. 6.
5,000/- to the wife, Rs. 3500/- to the son till he attains majority. Now that the son has attained majority, the respondent has to pay a total of Rs. 4,000/- to the appellant. (iv) He has now in the meantime remarried and we are informed he has two young children also to look after. 6. These factors have to be weighed and balanced out for passing appropriate order in the present proceedings. Firstly, the income tax returns filed by the husband is in individual capacity as well as on behalf of the partnership firm which need not necessarily disclose truly and fully all his income sources. His investments, life style, expenditure and other aspects would be equally relevant. In this respect, his passport would show that in last three or four years, he has made multiple trips abroad mainly according to him for pleasure. If from his only source of income he earns Rs. 13,000/- per month as he contends, it is difficult to understand how he can afford to undertake pleasure trip abroad with the family responsibility of his wife and two children to look after. His explanation that these trips were funded by his brother needs more minute scrutiny. 7. No matter what our suspicion about the husband's correct earning the same cannot form basis for giving him direction for payment of higher maintenance unless we come to a specific conclusion. Such exercise can be undertaken only by the Family Court after taking into account relevant materials on record including permitting the parties to lead further evidence. We had called upon and permitted the parties to place additional documents before us only for the purpose of arriving at an ad hoc formula for alimony to the wife pending further consideration by the Family Court. 8. Culmination of the above discussion is declaration of the husband that he barely earns Rs. 13000/- per month from his sole source of earning as a working partner of the firm does not inspire confidence. In addition to such income, we cannot even otherwise discard the profit of the partnership in which he admittedly has 50% share. Out of the remaining 50%, further 40% share is of his wife. The surplus profit of a partnership would belong to the partners in the agreed proportion. The respondent and his current wife would therefore be entitled to 90% of the profit of the firm.
Out of the remaining 50%, further 40% share is of his wife. The surplus profit of a partnership would belong to the partners in the agreed proportion. The respondent and his current wife would therefore be entitled to 90% of the profit of the firm. Whichever way one looks at this, it would be a family income and reduce the responsibility of the respondent to fund his current wife. 9. Considering that the alimony of Rs. 4000/- for the wife and maintenance of Rs. 3500/- for the son till he attains majority were fixed way back in the year 2005 and now that the husband does not have the responsibility of funding his son, we would direct him to pay monthly alimony of Rs. 7500/- from the date of this order to wife pending further consideration by the Family Court. This would also be even otherwise within his means even as per his disclosed sources of income viz his salary from the partnership firm and his share from the fund's profit. Ordered accordingly. 10. For further consideration the proceedings are remanded to the Family Court which shall allow both sides to lead further evidence. It is made abundantly clear that nothing stated in the order will come in the way of either side in such remanded proceedings to the Family Court and the Family Court shall dispose of the proceedings unmindful of the observations made in this judgment. First Appeal along with Civil Application is disposed of.