Saturday, August 17, 2013

ya touched her? then ya better pay. Husband's Tax papers NEED NOT b accepted, court can use ITs OWN intelligence !!!

ya touched her? then ya better pay. Husband's Tax papers NEED NOT b accepted, court can use ITs OWN intelligence !!! 
* most matrimonial feuds end in on thing ..... how much moolah ??
* how much does the wife get is almost always the question as women collect 99+% of the alimony in India !!
* this leads to finding out how much the man makes
* somehow the wife#s cut in the moolah is supposed to be based on the husband's earning
* and how much the husband is earning becomes a fight in every case where the man is NOT employed in the organised sector or IF the husband is a businessman
* here is one such case where the husband shows his Tax Returns and says his income is only Rs 16000 per month but the court fixes a much higher maintenance per month
* the honourable court .... as we said ... uses its own intelligence 
* so the court tacitly says it does NOT believe the IT return 

* ya touched her, ya got married with pomp and show ...then better pay you ..... 


Shirish H. Garg ...Petitioner  (Orig. Respondent)
Nidhi S. Garg ...Respondent (Orig. Applicant)
Mr. R.S. Apte i/b. Mr. V.P. Patankar, Advocate for Petitioner
Mr. A.M. Vernekar, Advocate for Respondent

1. This Petition is filed by the husband challenging the order of maintenance passed by the Family Court, Bandra, Mumbai on 1 st April 2010 for the interim maintenance under Section 24 of the Hindu Marriage Act of his wife.
2. The  husband is in  business.    The wife  has  no independent source of income. The husband runs three family businesses. These are shown on the Website of the husband as well as the Company. The husband owns a car and has purchased a share in a property which initially belonged to his joint family for his residence.   The parties have been engaged and married in a five   star   hotel.     The   husband's   bank   account   shows   large deposits and withdrawals. He pays separate electricity bills of large amounts  of his  residential premises. The husband also has  Life  Insurance  Policy.   He  has  several employees whose provident fund is paid and an immovable property for which property   taxes   and   municipal   taxes   are   paid.     These   are reflected in  the  supporting documents produced  by  the wife being his bank pass book, the employees provident fund book, the LIC Policy, the property tax receipt, municipal tax receipt, Website details etc.

3. The husband has not disputed the separate 3 or 4 businesses of the family in which he has a share. He has also not disputed the Website of the business concerns. He has instead sought to show his income under the income tax returns filed by him as also the company. 
4. The   determination   of   maintenance   is   dependent   upon consideration of the Petitioner's own income and the income of the Respondent under Section 24 of the Hindu Marriage Act which runs thus: 
"24.   Maintenance   pendente   lite   and   expenses   of proceedings  –  Where in  any   proceeding  under  this  Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent   to   pay   to   the   petitioner   the   expenses   of   the proceeding, and monthly, during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable".
5. Upon considering the interim application for maintenance the wife is given a share in the income of the husband and not his properties.    The  husband,  therefore,  contends  that  only  his income, as reflected in the individual income tax returns filed by him as also the returns of the businesses run by him, can be seen by this Court and the Family Court. 
6. The Family Court has considered the aforesaid businesses, the expenses  for purchase of movable and immovable properties the   debit   and   credit   entries   in   his   bank   account   and   the Website details of the Petitioner himself and his businesses to ascertain the approximate income of the Petitioner.
7. The ascertainment of  the income has  to be done judiciously and   sensibly.   It   cannot   be   done   arbitrarily   or   only arithmetically. The consideration of the income contemplated under   the   Section   does   not   mean   that   only   the   numerical figures shown in the income tax returns of a party can be taken for  the gospel.   The husband contends,  from his income  tax returns which are shown to Court, that he earns approximately Rs.2   lakhs   a   year.     This   would   constitute   an   income   of approximately   Rs.16,000/­   per   month.     In   this   income   the husband would not be expected to have the bank account that is shown to Court, the car which he owns, the share in the joint family property that he has purchased, the exports that he has made, the expenses for the electricity that he has paid or the property taxes that he has incurred or the employees whom he supports in several firms. 
8. Details of four firms are provided by the wife and considered by the learned trial Judge. The biodata of the husband as well as Website details of the firms show the goodwill of the firm acquired since its establishment in 1963.   This is reflected in the name of the firms and the products that they produce. The Website of the firm boasts of its leadership in glass industries with regard to the quality of the products and its exports. It shows   export   market   in   various   foreign   countries   on   four continents. It is shown to have 51 to 100 employees, 1000 to 3000 sq. mtrs. of  factory size, with various production lines, estimated annual sales below one Millon US Dollars. These are export   oriented   firms   manufacturing   products   of   ISO certification. They are shown to be pioneers in glass industry. The  firms carry businesses in  separate immovable properties shown as head office as well as branch office at Goregaon as well as Kandivali, Mumbai.  The Website shows the husband to be the contact person in the firms.
9. The individual Website of  the husband shows his position of responsibility in  expanding  the  family  businesses  which  has proved   to   be   a   "boon"   for   the   four   companies   mentioned therein. 
10.His residential address is shown in Dawawala   Bungalow of 800 sq. yds. The husband claims that that is the joint family property.  It belongs  to  four brothers including  the husband's father. The husband has purchased ¼ share of one of the other brother of his father. That share is reflected in his income tax returns. That share must be taken to be at least approximately of 2000 sq. ft in area being ¼ of the total area of the bungalow. The   husband   has   valued   it   at   little   over   Rs.3   lakhs   in   his income  tax  returns which valuation would  be impossible  to accept, given the current market rates of real estate. 
11.The parties got engaged and married in Hotel Sea Princess, Juhu besides having other related social wedding ceremonies. This  fact is reflected in  the invitation cards produced by  the wife and not denied by the husband. 
12.The   bank   account   statement   of   the   Indian   Overseas   Bank shows various debit and credit entries of thousands and even lakhs   of   rupees   which   have   remained   unexplained.     Mr. Vernekar on behalf of the wife drew my specific attention to these entries which belie the net income shown to have been earned by the husband as reflected in his income tax returns completely. e.g., in quarter between April 2007 to June 2007 about Rs. 8 lakhs have been deposited into his account and are soon  thereafter withdrawn.    It appears essentially  for    travel purpose  as  reflected  from  the debit entries in  favour  of  the Kuoni Travels.   The credit entries are seen  to be  from other saving accounts, the numbers of which are shown against those entries.   This shows that the husband has at least four other accounts  from which  amounts  have  been  transferred  to  the only  bank  account  which is  on  record.  There is  also  a  LIC policy of the husband of Rs. 4 lakhs. 
13.These supporting documents, therefore, falsify the tax returns produced by the husband. Mr. Apte on behalf of the husband went through the income tax returns. The arithmetical entries by themselves do not show the true income of the husband and must be rejected. 
14.Mr. Vernekar on behalf of the wife rightly argued that if the husband earns approximately Rs.16,000/­per month he would not be expected to have an LIC Policy of Rs. 4 lakhs, pay the electricity   bills   of   a   few   thousands   of   rupees   each   month, purchase 1/4th  share of his uncle in the joint family property, own a car and maintain the bank account showing large debit and credit entries. 
15.The learned Judge has, therefore, correctly considered how the income   sought   to   be   shown   by   the   Petitioner   cannot   be accepted in view  of  the movable  and immovable  properties owned,   possessed   and   maintained   by   the   Petitioner.     The reasoning of  the learned Judge is correct.   The income of a party before the Court has to be evaluated from the evidence produced by the parties as a whole. It should not be a figure which   would   insult   the   intelligence   of   the   Court   as   being wholly  contrary  to  commonsense.    Hence  this must include consideration of  the properties of  the husband, movable and immovable,   which   would   reflect   his   income.     It   may   be mentioned   that   the   properties   of   the   husband   has   to   be considered to that end though the wife is not given a share in those properties at the interim stage.
16.The impugned order has considered the earlier order passed in favour of the wife by the learned Magistrate's Court granting maintenance under the Domestic Violence Act. The impugned order has granted further maintenance taking into account the earlier maintenance granted. 17.The husband failed to pay the maintenance altogether until he was directed to deposit the arrears in this Court. 18.It may be mentioned  that upon strict evaluation of evidence produced  by  the  parties  at  the  final  hearing  of  the  Petition when  the husband would have to stand  trial that even more evidence of his hitherto concealed income may surface. At the interim stage appreciation of the evidence on record can only allow the Court to arrive at a reasonable figure of the income which   the   husband   is   seen   to   be   earning   when   the   entire income   is   not   shown   to   Court   and   in   fact   sought   to   be suppressed,   specially   in   case   of   businessmen   such   as   the husband in this case.   The extent of the income reasoned by the learned Judge at the interim stage based upon the intrinsic evidence in this case is most reasonable and proper. Mr. Apte's contention that it is based on conjunctures must, therefore, be rejected. 
19.Consequently, the impugned order is correct and the challenge cannot be maintained. 
20.Hence the order:
1. The Writ Petition is dismissed.
2. Wife shall be entitled to withdraw the amount of arrears deposited by the husband in this Court.
3. The   husband   shall   continue   to   pay   the   maintenance pending the Petition as directed in the impugned order. 
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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