Full Judgment
M.K. Mukherjee, C.J.
1. Mrs. Pushpa Anil Sharma. the appellant herein filed a petition in the Family Court, Bombay under Section 9 of the Hindu Marriage Act, 1955 ('Act', for short) against her husband, the respondent herein, seeking a decree of restitution of conjugal rights and a permanent alimony at the rate of Rs. 2,000/- per month. The respondent, in his turn, filed a cross petition seeking a decree of nullity under Section 12 of the Act on the ground that his marriage could not be consummated owing to his wife's impotence. Alternatively, he prayed for a decree of divorce Under Section 13 of the Act on the ground of desertion.
2. After hearing the parties, the learned Family Court rejected the petition filed by the appellant and allowed the prayer of the respondent for a decree of divorce. The learned Judge, however, directed the respondent to pay a sum of Rs. 400/- per month to the appellant towards her maintenance with effect from the date of the filing of her petition i.e. July 21, 1988. Aggrieved by the paucity of the amount of maintenance, the appellant has filed the instant appeal.
3. In the context of the stand now taken by the appellant, the only question that falls for our determination the Family Court was justified in granting a sum of Rs. 400/- only towards monthly maintenance of the appellant as against her claim of Rs. 2,500/-. In arriving at the above figure, the learned Judge observed there was no dispute that the respondent was carrying on business in plywood and furniture-making under the name and style of Anil Plywood Works at Andheri and that according to him (the respondent) he had only an interest of 25% therein. The learned Judge next observed that the respondent's claim that be had a monthly income of Rs. 700/- to Rs. 800/- was not correct and that he was trying to suppress the true figures regarding his income and that, according to the learned Judge, the respondent was having much more earnings than what be had claimed. However, the learned Judge having regard to the requirements of the appellant, her standard of living and paying capacity to the respondent arrived at the figure of Rs. 400/- per month.
4. Having considered the entire materials on record including the pleadings of the parties, we are constrained to say that the learned Judge should not have awarded the paltry sum of Rs. 400/- per month as maintenance. From the pleadings and the evidence adduced during trial it is patently clear that the respondent runs a business in plywood and furniture as a partner. Besides, the respondent's parents have two separate establishments in their respective names dealing with furnitures. Records further show that the family of the respondent has a flat of their own. The respondent, however sought to assert that his monthly income was only Rs. 700/-to Rs. 800/- per month but then, as rightly observed by the learned Judge, he was not detailing the correct facts about his income and even though he had in his written statement carved leave to refer to and rely upon the profit and loss account of his business, the same was not produced before the Court. Considering the nature of the business the petitioner has had been carrying on, we find no hesitation in concluding that the income, as stated by the petitioner, is absolutely incorrect and he earns a much larger income than what he has claimed. Admittedly, the appellant who lives in Bombay, has no independent source of income. It would, therefore, be difficult, if not impossible, for her to make both ends meet with the meagre sum of Rs. 400/- per month. Considering this aspect of the matter and considering the income which the respondent is earning from his own business and that of his parents with whom he is living, we feel that he should pay a sum of Rs. 1,200/- per month to the appellant. This payment of Rs. 1,200/- per month should be made from the date of the judgment delivered by the Family Court, that is to say, on and from February 5, 1992. The arrears of payment at the above rate in terms of this order should be made on or before 31st of December 1993 and the monthly payment should be made within 7th of each month.
5. The appeal is thus allowed, but without any order as to costs.