Case Note & Summary
The litigation arose from a divorce petition filed by the petitioner-husband under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, before the Family Court at Thane. During the pendency of the marriage petition, the respondent-wife filed an application under Section 26 of the Hindu Marriage Act seeking interim maintenance for their minor child Neel. The Family Court, by order dated 04.08.2023, allowed the application and directed the husband to pay monthly interim maintenance for the child. The husband challenged that order in the Bombay High Court under Article 227 of the Constitution of India, contending that the amount granted was excessive and not based on the child's actual needs. The husband asserted that his monthly income was only Rs.42,500 from his computer sales and services business, and that the Family Court erroneously held him to be earning Rs.2,00,000 per month based merely on credit entries in his bank statements, ignoring the debit side. He also pointed out that the wife had not furnished a detailed breakup of the child's expenses and that he had to maintain his mother as well. The wife, on the other hand, claimed that the husband had a flourishing business with net profits of approximately Rs.1,50,000 per month, that she had paid school fees of Rs.41,000, and that the child required Rs.30,000 per month for various needs including education, food, clothing, and extracurricular activities. The High Court examined the affidavits of assets and liabilities and the income tax returns filed by the husband, which showed total income of Rs.5,10,680 in assessment year 2022-23. However, the bank statements for the period 2020-21 revealed deposits far exceeding the disclosed income, leading the court to observe that income tax returns do not always reflect the correct income and are not always reliable. Despite the husband's actual income being uncertain, the court focused on the needs of the child. The wife's own affidavit disclosed child expenses of Rs.23,250 per month, yet the Family Court awarded Rs.30,000 per month without providing any reasons for the higher amount. Relying on Rajnesh v. Neha, the High Court reiterated that maintenance for a child must be reasonable and not overly extravagant, and must commensurate with the child's needs rather than the parents' income alone. It held that the Family Court's order was contrary to the record and grossly unjust, warranting interference under the supervisory jurisdiction of Article 227. Accordingly, the High Court partly allowed the writ petition and modified the Family Court's order by reducing the monthly interim maintenance for the child from Rs.30,000 to Rs.23,250, while clarifying that the order would not preclude the wife from claiming enhanced maintenance in the future.
Headnote
A) Family Law - Interim Maintenance for Minor Child - Quantum of Maintenance Must Be Based on Needs of Child - Hindu Marriage Act, 1955, Section 26 - The Family Court awarded Rs.30,000 per month despite the wife's affidavit showing child expenses of Rs.23,250; the High Court found this to be without reasoning and contrary to the record - Held, maintenance must commensurate with the needs of the child, not the income of the parents, and amount reduced to Rs.23,250 per month (Paras 14-18).
B) Constitutional Law - Supervisory Jurisdiction under Article 227 - Interference When Order Grossly Unjust and Contrary to Record - Constitution of India, Article 227 - Though Article 227 jurisdiction is supervisory and limited, the High Court can interfere when the Family Court's order is based on incorrect assessment of income and ignores the claimant's own disclosure - Held, writ petition partly allowed and order modified (Paras 17-18).
Issue of Consideration
Whether the Family Court erred in awarding Rs.30,000 per month interim maintenance for the minor child without considering the child's actual needs and the wife's own affidavit disclosing expenses of Rs.23,250 per month.
Final Decision
The writ petition was partly allowed. The order dated 04.08.2023 passed by the Family Court, Thane in Marriage Petition No. A-364 of 2022 was modified to the extent of reducing the monthly interim maintenance for the minor child from Rs.30,000 to Rs.23,250 per month. The order shall not preclude the respondent-wife from claiming enhanced maintenance in the future.
Law Points
- interim maintenance under Section 26 Hindu Marriage Act must be based on needs of child
- not solely on income of parents
- ITR not always reliable
- bank statements can falsify income
- maintenance amount should be reasonable and not extravagant
- High Court under Article 227 can interfere if order is grossly unjust and contrary to record
Case Details
2025 LawText (BOM) (07) 43
Writ Petition No. 16069 of 2023
Virendra Pethe, Ranvir Shekhawat
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Nature of Litigation
Writ petition under Article 227 of the Constitution of India challenging the interim maintenance order passed by the Family Court in a divorce proceeding under the Hindu Marriage Act, 1955.
Remedy Sought
The petitioner-husband sought modification of the Family Court order dated 04.08.2023 granting interim maintenance for the minor child, specifically to reduce the amount awarded.
Filing Reason
The Family Court awarded Rs.30,000 per month as interim maintenance for the minor child based on an alleged income of Rs.2,00,000 despite the husband's disclosed income of Rs.42,500 per month, and without proper reasoning or consideration of the wife's own affidavit showing child expenses of Rs.23,250 per month.
Previous Decisions
The Family Court, Thane, in Marriage Petition No. A-364 of 2022, by order dated 04.08.2023, allowed the wife's application under Section 26 of the Hindu Marriage Act and directed the husband to pay monthly interim maintenance for the minor child. The amount awarded was Rs.30,000 per month as per the final paragraphs of the judgment, which the High Court later reduced to Rs.23,250 per month.
Issues
Whether the Family Court's order awarding Rs.30,000 per month as interim maintenance for the minor child was sustainable when the respondent-wife's own affidavit disclosed child expenses of Rs.23,250 per month.
Whether the High Court should exercise supervisory jurisdiction under Article 227 to correct an order that is grossly unjust and contrary to record.
Submissions/Arguments
Petitioner-husband contended that his monthly income was only Rs.42,500 and the Family Court erroneously held him to be earning Rs.2,00,000 per month based on mere credit entries, ignoring the debit side; that the wife had not provided a proper breakup of child expenses; and that he had to maintain his mother.
Respondent-wife contended that the husband had a flourishing business with net profits of about Rs.1,50,000 per month, that she paid school fees of Rs.41,000, and that the child needed Rs.30,000 per month for food, education, clothing, and extracurricular activities.
Ratio Decidendi
Interim maintenance for a child under Section 26 of the Hindu Marriage Act must be assessed on the basis of the actual reasonable needs of the child, not merely the income of the parents; the claimant's own disclosure of expenses in the affidavit of assets and liabilities is relevant; income tax returns are not always reliable and bank statements may reveal true income; and the High Court can interfere under Article 227 when the order is grossly unjust and contrary to record.
Judgment Excerpts
The Bank statement placed by him on record falsifies his claim.
It is time and again held by the High Courts as well as the Supreme Court that the ITR do not reflect the correct income of the parties. Therefore, it is not always reliable.
In the present case, though the expenses are shown to be Rs.23,000/-, the learned Judge has granted Rs.30,000/-.
though it is a settled position of law that the power under Article 227 of the Constitution of India being that of supervisory nature conferred on the High Courts and limited to see that the inferior courts or tribunal function within their limits, yet it is always open to the High Courts to interfere with the order which is grossly unjust and contrary to the record.
the Writ Petition is partly allowed by modifying the order passed by the Judge, Family Court, Thane, dated 04.08.2023 to the extent of the maintenance granted to the child by reducing the amount of Rs.30,000/- per month to Rs.23,250/- per month.
Procedural History
The petitioner-husband filed Marriage Petition No. A-364 of 2022 before the Family Court, Thane, under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, seeking divorce on the ground of cruelty. During the pendency of that petition, the respondent-wife filed an application under Section 26 of the Hindu Marriage Act seeking interim maintenance for the minor child Neel. The husband filed a reply. By order dated 04.08.2023, the Family Court allowed the application and directed the husband to pay monthly interim maintenance for the child. The husband challenged this order by filing Writ Petition No. 16069 of 2023 in the Bombay High Court under Article 227 of the Constitution of India. The High Court partly allowed the writ petition and modified the Family Court's order by reducing the monthly maintenance from Rs.30,000 to Rs.23,250 per month.
Acts & Sections
- Hindu Marriage Act, 1955: Section 13(1)(i-a), Section 26
- Constitution of India: Article 227
