Mrs. Amee Sharan Desai vs Mr. Sharan Sanjeev Desai
2016 Latest Caselaw 4813 Bom

                                                                                    wp-8825/14.




              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION




                                                                               
                      WRIT PETITION NO. 8825               OF        2014




                                                       
    Mrs. Amee Sharan Desai,                      ]
    Age 35 years, Occupation :                   ]
    Housewife C/o. 11, Sherman                   ]




                                                      
    Building Narayan Dabholkar                   ]
    Marg, Mumbai - 400006.                       ]             ..Petitioner.

                Versus




                                            
    Mr. Sharan Sanjeev Desai, Age : ]
                             
    35 years Occupation : Business ]
    R/o. 62 Sunder Nagar, New Delhi- ]
    110 003.                         ]                         ..Respondent.
                            
              Coram : RANJIT MORE, J.

Date on arguments were concluded : 4th May, 2016. Date on which Judgment is pronounced : 23rd August, 2016.

Mr. Rohan J. Cama i/b. Ms. Sapna Rachure, advocate for the

Petitioner.

Mrs. Manjula Rao, advocate for the Respondent.

Oral Judgment :

1. This writ petition arises from an interim

maintenance proceedings under section 18 of the Hindu

Adoptions and Maintenance Act, 1956. By the application at

Exhibit-17 filed in MJ Petition No.C-4 of 2013, the Petitioner-wife

claimed interim maintenance @ Rs.2,50,000/- per month for

herself and @ Rs.1,50,000/- per month for the minor daughter of

patilsr 1/ 23

wp-8825/14.

the couple. By the order impugned in the petition, the Family

Court, Mumbai at Bandra has refused to grant any interim

maintenance to the Petitioner-wife, however, daughter of the

couple is granted interim maintenance @Rs15,000/- per month.

2. Briefly, the facts are that the Petitioner and the

Respondent got married on 25th November 2005. During the

wedlock, on 31st December 2008 daughter Samara was born to

Petitioner and Respondent. It is the case of the Petitioner that on

15th November 2012 she was constrained to leave her

matrimonial home and come to reside at Mumbai with her

mother. The Petitioner thereafter on 30 th November 2012 filed a

petition being MJ Petition No.C-04 of 2013 in the family Court

seeking maintenance for herself and daughter-Samara and

permanent custody of Samara. On 27th December 2012 the

Petitioner also filed a proceeding under sections 12, 18, 20, 22

and 23 of the Protection of Women From Domestic Violence Act,

2005 before the Court of Additional Chief Metropolitan

Magistrate, 40th Court at Girgaum, Mumbai being CC

No.637/SS/2012, [hereinafter referred to as "DV Act

patilsr 2/ 23

wp-8825/14.

proceedings"]. It is the case of the Petitioner that in this DV Act

proceedings, the Respondent by filing reply showed his

willingness to pay to the Petitioner an amount of Rs.50,000/- per

month towards the interim maintenance in addition to the

payment of rent for separate residence and for any unforseen

expenses of Samara and / or the Petitioner. The Petitioner was,

however, advised to withdraw the DV Act proceedings and

accordingly she withdrew the same on 26 th August 2013 and

thereafter on 8th October 2013 in MJ Petition No. C-04 of 2013,

filed an application at Exhibit-17 seeking interim maintenance for

herself @ Rs.2,50,000/- p.m. and for daughter Samara

@Rs.1,50,000/- p.m.. The Family Court granted interim

maintenance to daughter - Samara @ Rs.15,000/- per month but

interim maintenance to the Petitioner - wife is refused on the

ground that she has independent source of income. This order is

challenged by filing present petition under Articles 226 & 227 of

the Constitution of India.

3. The Petitioner-wife contends that she has no

independent source of income. The business which is shown to

patilsr 3/ 23

wp-8825/14.

be carried on by her is in fact that of her mother. At any rate, the

Income Tax Returns which are relied upon by the Respondent

and Family Court reflect very meagre purported income of the

Respondent which is not at all commensurate with the status of

the parties and is not sufficient to lead the standard of living to

which parties were accustomed during their cohabitation. It was

also contended that income referred to in the Income Tax

Returns of the Petitioner is in fact the income of the Petitioner's

mother, the small portion of which was deposited in a joint

account held by the Petitioner and her mother. It is contended

that the said money / income has not been used by the Petitioner

at all and the record reveals that the amount in the said bank

account is withdrawn by the Petitioner's mother. The Petitioner

also contended that the Respondent suppressed his income. The

documents relied upon before the Family Court and this Court

demonstrate that the Respondent has significant income. It also

discloses the high spending power and high standard of living of

the parties during the time of their cohabitation. The Petitioner

contended that taking into consideration the high income and

high spending power of the Respondent, coupled with the

patilsr 4/ 23

wp-8825/14.

lifestyle which parties led during their cohabitation, she is

entitled to interim maintenance @ Rs.2,50,000/- per month. So

far as daughter-Samara is concerned, she is taking education in

Mumbai in highly reputed school. The Petitioner has given chart

of expenses for daughter Samara under various heads. Based on

the details of expenses given in the said chart, the Petitioner

claims interim maintenance for Samara @ Rs.1,50,000/- per

month.

4. Mrs. Manjula Rao, the learned Counsel appearing

for the Respondent very vehemently contested the petition. She

submitted that the Petitioner wife has independent source of

income and this fact was concealed by the Petitioner from the

Family Court while claiming interim maintenance. She submitted

that the business and properties which are being referred to by

the Petitioner as a source of income for the Respondent, in fact

belong to the Respondent's father and brother. She also

submitted that there was no justification for the Petitioner wife to

withdraw from the company of Respondent and therefore she is

not entitled for any maintenance much less the interim

patilsr 5/ 23

wp-8825/14.

maintenance. She submitted that Family Court has rightly

refused maintenance to the Petitioner wife. She also referred to

various documents annexed to the petition and the Respondent's

reply to buttress her contentions. She lastly submitted that this

Court in exercise of writ jurisdiction is not expected to interfere

with the impugned order and prayed for the dismissal of the writ

petition.

5. The law regarding grant and quantum of

maintenance to the wife is now fairly settled. The Apex Court in

Jasbir Kaur Sehgal v. District Judge Dehradun [(1997) 7 SCC 7] has

held thus :

"The Court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own

maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when

she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate."

6. Recently, the Apex Court in Bhuwan Mohan Singh v.

    patilsr                                                                              6/ 23





                                                                                   wp-8825/14.

Meena [(2015) 6 SCC 353], while dealing with the issue of

maintenance to the wife made following observations :

"Be it ingeminated that Section 125 of the Code of Criminal Procedure (for short "the Code") was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her

matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the Court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to

lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic

maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is

where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to

deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time

of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not

to be maladroitly created whereunder she is compelled to resign to her fate and think of life "dust unto dust". It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able bodied.

There is no escape route unless there is an order from the Court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds."

7. In the light of above principles laid down by the

patilsr 7/ 23

wp-8825/14.

Apex Court, let us consider the rival submissions of the parties in

the present case. The Petitioner heavily relied upon the reply

affidavit filed by the Respondent-husband in the DV Act

proceedings. The Petitioner-wife contends that though in this

reply affidavit the Respondent has shown his income of

Rs.2,25,000/-, Rs.1,74,615/- and Rs.1,40,626/- respectively for the

financial years 2010-11, 2011-12 and 2012-13, in the very affidavit

he has expressly shown his willingness to pay to the Petitioner an

amount of Rs.50,000/- per month for her maintenance over and

above the rental charges for the alternate accommodation and

for any other unforseen and/or unexpected expenditure required

to be borne for the Petitioner or daughter Samara. According to

the Petitioner, the statement itself shows that the income

disclosed by the Respondent was patently false. The Petitioner

also contended that the Respondent is co-owner of the ancestral

property worth hundreds of crores. She submitted that the

Respondent though held 4 to 5 bank accounts, has disclosed only

one and the statement of the disclosed account reveal that there

have been huge deposits and withdrawals. The Petitioner wife

also contended that the Respondent holds 4 to 5 debit / credit

patilsr 8/ 23

wp-8825/14.

cards but he has disclosed only one debit card and the disclosed

debit card itself shows that the Respondent is making payments

to the tune of several lakhs on routine basis. She also relied

upon the lifestyle she enjoyed with the Respondent during

cohabitation. She submitted that they on many occasions

undertook foreign tours, travelled by business class and stayed

only in 5 star hotels. The Respondent, on the contrary, relied

upon the Income Tax Returns of the Petitioner which according to

him disclose that the Petitioner has independent income. As

discussed earlier, the Respondent also contended that the

property and business on which the Petitioner relied, are

ancestral property and business is of his father which cannot be

considered as his independent source of income at this stage of

grant of interim maintenance.

8. At Exhibit-B to the petition, the Petitioner has

annexed Respondent's reply in the DV Act proceedings. In

paragraph 13(ii) and 13(iii) of his reply, the Respondent has made

following averments :

"(ii) In response to prayer (b) of the Applicant, seeking

patilsr 9/ 23

wp-8825/14.

residential orders under section 19(f) of the D. V. Act 2005

the Respondent submits that this prayer of the Applicant has to be taken into consideration in the light the suit

which the Respondent has filed against the Applicant in the Family Court at New Delhi seeking conjugal rights. Subject to participation in the said proceeding by the

Applicant if the said Court passes an order directing such restitution of conjugal rights between the Applicant and the Respondent, then the Applicant would be obliged to

returned to her matrimonial home at New Delhi, in which

case the Applicant would be treated as sufficiently secure having the same level of accommodation which the

Respondent presently enjoys. The Respondent says and submits that he being a resident of Delhi, in the event of the Applicant not being ready and willing to return to her

matrimonial home, and insist upon an alternate accommodation on rent, the Respondent is ready and

willing to provide the same to the Applicant in New Delhi.

(iii) In response to prayer (c) of the Applicant, seeking monetary relief under section 20(1)(b)(d) and 20(2) and section 20(3) of the D. V. Act 2005, the Respondent denies that the Applicant has been subjected

to any expense or loss suffered in monetary terms. The Respondent submits that he is ready and willing to provide to the Applicant and his minor daughter, adequate monetary relief in the form of maintenance per month consistent with the standard of his income. The

patilsr 10/ 23

wp-8825/14.

Respondent submits that he is aware that the said

monetary relief in the form of maintenance per month should be adequate, fair and reasonable. However, the

same is required to be consistent with the income of the Respondent. The Respondent submits that taking into consideration his income generated from his business,

and also taking into consideration that the Respondent has willingly agreed to accept the Applicant back into her matrimonial home in New Delhi, or in the alternative

provide her with alternative accommodation on rent in

New Delhi, for which the Respondent will be required to pay not only a deposit but also pay the monthly rent to

the landlord of the said premises, the Respondent is ready and willing to pay a sum of Rs.50,000/- to the Applicant per month which he shall deposit directly into her bank

account as desired by the Applicant. The Respondent in all fairness, places on record that apart from the said

maintenance of Rs.50,000/- per month, in the event of any untoward, unforseen and unexpected expenditure is

required to be incurred by the Applicant, either towards her or his daughter's medical expenses, he is ready and willing to pay the same as and when the circumstances so requires. The Respondent submits that the expected

claim of the Applicant that the maintenance should be consistent with the standard of living that the Respondent enjoys cannot be become the base for fixing the said maintenance inasmuch as the Respondent is personally liable and responsible to maintain his wife and child and

patilsr 11/ 23

wp-8825/14.

cannot expect the said burden to be borne by his parents

and other family members. The Respondent submits that since he does not have a household of his own, he lives in

the house of his parents, with his brother and family. The business wherefrom the Respondent generates his income is different and distinct from that of his father.

Consequently the offer of Rs.50,000/- per month made by the Respondent is in the light of his financial capabilities based on his annual income. The Respondent submits

that the monetary relief of Rs.2,50,000/- per month as

claimed by the Applicant for herself and Rs.1,50,000/- per month for their minor daughter is not only exorbitant but

beyond the reach and means of the Respondent. The Respondent submits that such exorbitant figures have been deliberately demanded by the Applicant only to

exert pressure on the Respondent to succumb to her extortive demands. The Respondent submits that the

filing of a complaint on 1st March 2013 and pursuing the same with resourceful connection of the Applicant's

family amongst high ranking police officials to ensure registration of an FIR against the Respondent and his parents is nothing but an attempt by the Applicant to pressurise the Respondent to succumb to her demands as

expressed in her application under reply."

9. The above averments made in the reply affidavit by

the Respondent, prima facie, in my opinion, do show that the

patilsr 12/ 23

wp-8825/14.

Respondent has suppressed his real income. The averments

make it clear that the said offer towards maintenance was made

by the Respondent in the light of his financial capacity, based on

his annual income. The Respondent not only showed willingness

to pay to the Petitioner an amount of Rs.50,000/- per month

towards the maintenance but also agreed to bear rental charges

for the alternate accommodation and pay for any untoward,

unforseen and unexpected expenditure of the Petitioner and

daughter Samara. The Respondent in this regard claimed that

this offer was made with a view to continue the marriage and

since he was not aware about the independent source of income

of the Petitioner. It was also contended that offer for payment of

rental charges for alternate accommodation for the Petitioner

was an offer for the accommodation at New Delhi and not in

Mumbai. This submission, I find is without any substance. What

is required to be considered is that the status of the parties and

their respective needs, the capacity of the husband to pay having

regard to his reasonable expenses for his own maintenance. The

offer of Rs.50,000/- towards maintenance and offer of alternate

accommodation, may be at New Delhi, do reveal strong financial

patilsr 13/ 23

wp-8825/14.

position of the Respondent.

10. The documents annexed at page nos. 103 to 112 are

the statements of Bank Account No.04841600000236 of HDFC

Bank, Sundar Nagar, Delhi held by the Respondent. The

Petitioner has made summary of these statements and annexed

at Annexure-I to the written submissions. The summary shows

that during the financial year 2007-08 the Respondent deposited

Rs.13,75,000/- in this bank account and withdrew Rs.10,22,942/-

from this bank account, during the financial year 2008-09, the

Respondent deposited Rs.5,15,000/- and withdrew Rs.5,67,400/-

from this bank account, during the financial year 2009-10, the

Respondent deposited Rs.55,27,353/- and withdrew

Rs.26,46,440/- from this bank account, during the financial year

2010-11, the Respondent deposited Rs.7,36,595/- and withdrew

Rs.20,51,653/- from this bank account, during the financial year

2011-12, the Respondent deposited Rs.7,41,178/- and withdrew

Rs.21,00,000/- from this bank account and during the financial

year 2012-13, the Respondent deposited Rs.27,96,679/- and

withdrew Rs.28,73,000/- from this bank account. Contents of

patilsr 14/ 23

wp-8825/14.

bank statement at page 108 show that the Respondent has paid

an amount of Rs. 2 lakh towards income tax installation. This

statement also shows that the Petitioner holds 4 debit / credit

cards. These statements reflect huge deposits and withdrawals

of several lakhs of rupees by the Respondent.

11. Page 102 is the tax invoice for purchase of the cut

and polished diamonds issued by AMC Diamonds India Pvt Ltd in

the name of the Respondent, which goes to show that the

Respondent has purchased diamonds worth Rs.7,44,000/- on 30th

October 2009. Statement at page 109 shows that the Respondent

has spent approximately Rs.1 lakh while he was on vacation with

his friends at Macau during the span of two days between 8 th

October 2010 to 9th October 2010.

12. The Petitioner has also relied upon the credit card

statement at page Nos.113 to 195 of the Respondent's Citi Bank

Credit Card. The summary of the statements is annexed at

annexure-II to the written submissions of the Petitioner. During

the financial year 2007-08, purchases worth Rs.2,75,457/- and

patilsr 15/ 23

wp-8825/14.

payments to the tune of Rs.3,30,000/- were made by the

Respondent, during the financial year 2008-09, the Respondent

made purchases worth Rs.5,38,208/- and payments to the tune of

Rs.1,88,500/-, during the financial year 2009-10, the Respondent

made purchases worth Rs.4,11,562/- and payments to the tune of

Rs.5,62,000/-, during the financial year 2010-11, the Respondent

made purchases worth Rs. 8,19,889/- and payments to the tune

of Rs.9,82,000/-, ig during the financial year 2011-12, the

Respondent made purchases worth Rs.11,20,362/- and payments

to the tune of Rs.11,25,306/-, during the financial year 2012-13,

the Respondent made purchases worth Rs.3,30,659/- and

payments to the tune of Rs.4,31,500/- and during the financial

year 2013-14, the Respondent made purchases worth

Rs.1,11,949/- and payments to the tune of Rs.1,40,000/-. The

expenses in Citi Bank Credit Card statement reflect that the

Petitioner and the Respondent enjoyed a very high standard of

living and stayed only in the finest five star hotels, travelled

business class and shopped at high end boutiques. It further

reveals that the Petitioner and the Respondent frequently

travelled domestically and stayed only at five star hotels. It also

patilsr 16/ 23

wp-8825/14.

reveals that they travelled only in business class or first class.

Reference needs to be made to the photocopy of the passport of

the Respondent at page Nos.319 to 350. This passport and visa

stamp thereon show that the Respondent routinely took foreign

trips and has gone on foreign holidays.

13. The averments of the Respondent made in the reply

to DV Act proceedings coupled with the bank statements and

credit card statements as well as document regarding hotel stay

and purchase voucher demonstrate significant income, high

spending power and high standard of living of the parties during

their cohabitation. The parties are from the highest strata of the

society and have enjoyed status as such.

14. The Respondent contended that the Petitioner was

running the business carried on by her mother and relied upon

the Petitioner's income tax returns for this purpose. It is however

case of the Petitioner that business is owned by her mother and

purported income referred to is in fact income of her mother, a

small portion of which was deposited in a joint account held by

patilsr 17/ 23

wp-8825/14.

the Petitioner and her mother. The Petitioner in this regard

during the course of argument handed over compilation of

cheques to support her contention that bank account is managed

by her mother. The compilation shows that out of 83 cheques

issued from the said income from the joint account, only four

cheques have been signed by the Petitioner in a period spanning

over 8-9 years. Prima facie, I find substance in the Petitioner's

contention that the said business is owned by the Petitioner's

mother. In any case, income shown in the Petitioner's income

tax returns reflect very meagre income which in no way

commensurate with the status and standard of living of the

parties during their cohabitation.

15. The Respondent in his written submissions has

explained some of the entries in his bank statements and credit

card statements. It is the submission of the Respondent that an

amount of Rs.52 lakh is received at the time of one time sale of

the property and therefore it cannot be considered as his income.

With regard to diamond ring, he has submitted that it was in fact

purchased for the Petitioner-wife. It is also case of the

patilsr 18/ 23

wp-8825/14.

Respondent that some of the expenses referred to in the said

statements are incurred for the Petitioner-wife. It is stated that

monies were expended when foreign tours were undertaken by

both Petitioner and Respondent. This explanation, in my view,

however does not take the Respondent's case any further. The

fact remains that the Petitioner while living with the Respondent

was leading high standard of life.

16. It is also contended by the Respondent that the

Petitioner-wife has deserted the Respondent without any

justification and her acts amount to cruelty and therefore she is

not entitled to maintenance. The Respondent in this regard relies

upon various decisions of the Apex Court. On the contrary, it is

the case of the Petitioner that she was constrained to leave the

matrimonial home due to cruelty caused by her by the

Respondent and in her laws. In any case, what I find is that this

issue was not raised before the Family Court. The Respondent

opposed the application before the family Court on the ground

that the Petitioner has independent source of income which she

has concealed. The trial Court also accepted the Respondent's

patilsr 19/ 23

wp-8825/14.

contention that the Petitioner has independent source of income

and on that ground refused to grant interim maintenance to the

Petitioner. Whether the Petitioner was justified in withdrawing

from the the Respondent's company or which party is guilty of

cruelty will have to be decided at the final stage of the

proceedings before the family Court after giving an opportunity

to the parties to lead evidence.

17. The trial Court in paragraph 20 of the impugned

order has held that voluminous documents relied upon by the

Petitioner-wife with respect to the value of property worth

multiple crores cannot be considered at this interim stage as they

are not shown to be generating income. It was also observed by

the family Court that documents relied upon by the Petitioner

wife namely Credit Card Statements of the Respondent which

show considerably high lifestyle apparently enjoyed by the

Respondent are not relevant. It is further observed that list of

holidays taken by the Petitioner and the Respondent abroad

including the boarding passes of those flights and passports, bills

of various 5 star hotel, and bank statements of the Respondent

patilsr 20/ 23

wp-8825/14.

are not relevant for the purpose of ordering interim maintenance

to the Petitioner and her minor daughter. In my considered view,

the approach adopted by the Family Court is erroneous. What is

required to be seen is that the status of the parties, their

respective needs, the capacity of the husband to pay having

regard to his reasonable expenses for his own maintenance and

of those he is obliged under the law. Undoubtedly, the

documents relied upon by the Petitioner-wife show very strong

financial capacity of the Respondent which could not have been

ignored by the family Court while considering the grant of interim

maintenance. Even assuming for the sake of moment, income

tax returns of the Petitioner wife disclose that she is having

independent source of income, the same is not commensurate

with that of the husband. The Petitioner wife is entitled to lead

the standard of life similar to that of the husband.

18. Taking totality of the facts and circumstances of the

case into consideration especially the deposits and withdrawals

of amounts by the Respondent as disclosed from the bank

statement and debit card statements and statement made by the

patilsr 21/ 23

wp-8825/14.

Respondent in his reply in the DV Act proceedings, in my opinion,

the ends of justice would be met if the Respondent is directed to

pay to the Petitioner interim maintenance @ Rs.1 lac per month

from the date of the impugned order.

19. So far as the interim maintenance to daughter -

Samara is concerned, the family Court has granted it @

Rs.15,000/- per month.

ig The record reveals that she is taking

education in very reputed school in South Mumbai. The Petitioner

wife has submitted the Chart of Expenses towards the education

of Samara. On the basis of the same she is claiming interim

maintenance @ Rs.1,50,000/- per month. I am however of the

opinion that taking into consideration the lifestyle of the parties

and standard of education which Samara is taking, the amount of

interim maintenance should be fixed at Rs.25,000/- per month.

20. In the light of above discussion, writ petition is

allowed. The impugned order is quashed and set aside. The

Respondent is directed to pay during the pendency and till he

disposal of main MJ petition, interim maintenance to the

patilsr 22/ 23

wp-8825/14.

Petitioner - wife @ Rs.1,00,000/- per month and to daughter -

Samra @ Rs.25,000/- per month. Interim maintenance shall be

paid from the date of order impugned in this petition, i.e., 11 th

April 2014. The Respondent shall pay arrears of interim

maintenance within eight weeks from today and shall pay regular

interim maintenance on or before 10th day of each month.

21.

In view of the disposal of the writ petition, civil

applications if any, will not survive for consideration and the

same are also disposed of.

[RANJIT MORE, J.]

At this stage, Mrs. Rao seeks stay of this order in

order to enable the Respondent to approach the Apex Court.

Since this Court has granted eight weeks' time to the Respondent

to pay the arrears of interim maintenance, this request is

rejected.

                                                  [RANJIT MORE, J.]



    patilsr                                                                       23/ 23