Uma Ashish Ghate vs Ashish Anil Ghate
2017 Latest Caselaw 7919 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION

                         WRIT PETITION NO. 11308 OF 2015

Uma Ashish Ghate                       ]
C/o. Col. D.M. Purandare,              ]
B-20 Amar Aashiyana,                   ]
Wanowrie, Pune- 411 040                ]     ...        Petitioner.

          V/s.

Ashish Anil Ghate                      ]
A-204 Paranjpe Magnolia,               ]
Near Kumar Sahawas,                    ]
Opp. Mont Vert Biarritz,               ]
Baner Pashan Link Road,                ]
Pashan, Pune- 411 021                  ]     ...        Respondent.




      •   Mr.Sanjay Bhojwani for the Petitioner.
      •   Mr.Abhijit D. Sarwate for the Respondent.


                         CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.

DATED : 9 th OCTOBER, 2017.

JUDGMENT :-

1]               Rule. Rule made returnable forthwith.


2]               Heard learned counsel for both the parties finally at the

stage of admission itself.





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3]              By this Writ Petition, the Petitioner-mother is challenging

the order dated 10/09/2015 passed by the Principal Judge, Family

Court No.1, Pune thereby rejecting her application filed under

Section 26 of the Hindu Marriage Act for educational expenses of her

minor son Master Dhruva.

4] It is submitted by learned counsel for the Petitioner that

since Master Dhruva is in custody of the Petitioner-mother and at

present he is taking education in 6th standard in the Vigbyor High

School, she has to incur the expenses for his education which are

totally to the amount of Rs.1,39,750/-. She has to pay this amount

over and above the amount of Rs.18,000/- towards his co-curricular

activities. It is submitted that the Family Court, has vide its earlier

order granted an amount of Rs.5,000/- per month only, as interim

maintenance and in the said amount these educational expenses of

the child cannot be satisfied. Therefore, it has become necessary to

direct the Respondent to pay this amount for educational expenses

of the minor child Dhruva.

5] It is submitted that the Family Court has however

rejected this application only on the ground that the Petitioner has

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changed the school of Master Dhruva without the knowledge and

consent of the Respondent-father. It was held that, earlier Dhruva

was taking education in Bharatiya Vidya Bhavan School. Thereafter,

the Petitioner has changed the said school and enrolled him in the

expensive school like Vigbyor High School without the knowledge

and consent of the Respondent. Therefore, when the Petitioner is

herself earning and she has taken decision to change the school of

Master Dhruva of her own, so at that time she must have considered

the school fees of Vigbyor High School. Thus, on this sole ground it

was held that the Petitioner cannot be entitled to get the school

expenses of Master Dhruva.

6] According to learned counsel for the Petitioner, the

reason given by the Family Court for rejecting the application cannot

sustain as the Petitioner has admitted Dhruva in the Vigbyor School

with consent of the Respondent and it was a joint decision of the

Petitioner and the Respondent. To substantiate this submission,

learned counsel for the Petitioner has pointed out to the application

of the enrollment of Master Dhruva to Vigbyor School to show that

on the application form, the signature of the Respondent is also

appearing thereby indicating that he was also a party to the said

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decision. Hence, according to learned counsel for the Petitioner, the

reasoning given by the trial Court for rejecting the Petitioner's claim

for school expenses cannot be called as legal and proper.

7] As against it, learned counsel for the Respondent has

supported the said order but not for the reasons stated therein.

According to him, when the application for maintenance was filed

earlier in the said proceedings and the amount of Rs.5,000/- per

month was awarded towards the maintenance of Master Dhruva,at

that time also this fact that Master Dhruva was studying in Vigbyor

High School and these school expenses to the tune of Rs.1,39,750/-

per month were required to be incurred was considered by the

Family Court and thereafter only, the amount of Rs.5,000/- per

month was awarded. Hence on the same ground the Petitioner

cannot file another application seeking the same amount.

8] Secondly, it is submitted that in the proceeding filed

under the Protection of Women from Domestic Violence Act, the

Petitioner is already awarded an interim maintenance of Rs.15,000/-

per month and Rs.5,000/- towards the alternate rental

accommodation. Therefore, she is having sufficient means, hence no

interference is warranted in the impugned order.

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9]              In this case, perusal of the earlier application for interim

maintenance filed by the Petitioner shows in the said application also

the Petitioner has very much pleaded that as Master Dhruva was

studying in the Vigbyor High School, she has to spend this amount of

Rs.1,39,750/- for his educational expenses. In the said application,

she has also claimed the amount of Rs.1500/- per month towards his

co-curricular activities. It is pertinent to note that after considering

the said expenses, the Family Court has, at that time granted the

interim maintenance at the rate of Rs.5,000/- per month. In such

situation, there was no change in the circumstances, as such, for the

Petitioner to file this fresh application towards educational expenses

of Master Dhruva. Therefore, whether the admission of Master

Dhruva was taken with consent of the Respondent or otherwise, the

fact remains that this aspect of school expenses of the child was

considered as it was pleaded in the earlier application, when the

order of the interim maintenance at the rate of Rs.5,000/- was

passed.

10] Apart from and in addition to that, now in view of the

order passed in the proceedings under the D.V. Act by the Magistrate

Court and which is confirmed upto this Court in W.P. No.919 of 2017

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by order dated 29/09/2017, the additional amount of Rs.15,000/- per

month is granted as interim maintenance and while granting the

same, this amount of Rs.5,000/- per month which is already granted

in this proceeding is also considered. Therefore, at this stage, I do not

find that any interference is called for in the impugned order passed

by the Family Court of rejecting the Petitioner's application for the

payment of the educational expenses of Rs.1,39,750/- for Master

Dhruva.

11] The Second order of the learned Family Court passed in

the same proceeding and which is also challenged in this Writ

Petition is dated 03/11/2015, by which the application filed by the

Petitioner for dismissing the petition of the Respondent under Order

39 Rule 11 of C.P.C. was rejected. However, at the same time, the trial

Court has stayed the order of interim maintenance awarded to

Master Dhruva on the ground that the access of Master Dhruva is

not given to the Respondent.

12] According to learned counsel for the Petitioner, the

Family Court has committed a grave error in linking the access of

the child with the payment of maintenance, especially when the

Petitioner is not at all responsible for the child being not ready to

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meet his father. It is submitted that the Family Court itself has

categorically held that non-compliance of the order of giving access

to the Respondent father is not intentional, deliberate or willful and

hence rejected the prayer of the Respondent of striving out the

Petitioner's defence under Order 39 Rule 11 of C.P.C.. However,

against its observation and finding, the Family Court has stayed the

order of interim maintenance.

13] In this respect, learned counsel for the Petitioner has

pointed out to the following observations made by the Family Court

in its impugned order, "the Court had after interviewing the child

suggested the Petitioner to counsel Master Dhruva and make him

ready to meet his father but even thereafter, there is no access to the

Master Dhruva by the Petitioner. The age of Master Dhruva is 12

years, so he is of tender age. He is not completely matured but at this

age children have their views and specific opinions. Sometimes they

are impressed by their custodial parents. In the present case, we do

not know the exact reason why Master Dhruva is not ready to meet

his father. The child of 12 years is not an article which can be given

forcefully to another person. We have to understand his mindset and

respect his wishes. No doubt the father has right to have access of

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child but at the same time we have to understand the wishes of the

child. In the present case, it appears prima facie that Master Dhruva

himself does not wish to have access. It does not appear that the

Petitioner herself has denied the access of Master Dhruva. So, the

Petitioner cannot be held responsible for the denial of access of

Master Dhruva and she cannot be punished for the same by

dismissal of the petition".

14] In considered opinion of this Court, these very

observations made by the learned Family Court in paragraph No.6 of

the order, very well make out a clear case for interference in the

impugned order passed by the Family Court of staying the order of

maintenance. It is pertinent to note that for these very reasons, the

Family Court has rejected the prayer to dismiss the petition under

Order 39 Rule 11 of C.P.C., holding that the Petitioner should not be

held responsible for denial of access of Master Dhruva to the

Respondent and she cannot be punished for the same by dismissal of

the petition. The same analogy need to be applied now. The order of

interim maintenance therefore cannot be stayed on the ground that

access of the child is not extended. When trial Court itself has

observed that child of 12 years is not an "article" whose custody or

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access can be forcefully given then one fails to understand how the

child's maintenance order can be stayed. There is absolutely no

connection between the two. If the child does not want to meet his

father or mother, it does not mean that the child does not require

any amount for his livelihood. It also does not absolve the father

from his liability of maintaining his dependent child. The reasons for

not meeting the father, from the child's point of view may be totally

different as observed by the Family Court itself and may not

necessarily because of the influence or tutoring by the custodial

parent.

15] Though, the learned counsel for the Respondent in this

respect has relied upon the order of the Apex Court in the case of

Vivek Singh vs. Romani Singh, (2017)3 SCC 231, in respect of " The

Parental Alienation Syndrome", to point out that such denial of

access may be on account of the influence exerted by the custodial

parent, however here in the present case, the Family Court has not

at all held that on account of the influence exerted by the Petitioner-

mother, the child is not ready for meeting his father. The Family

Court has observed that, in this case, "we do not know the exact

reason that why Master Dhruva is not ready to meet his father".

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Further, it is also observed that, "though he is not completely

mature, at this stage, the children have their views and specific

opinions". It is also observed that, "Master Dhruva himself does not

want to have access". In such situation there is absolutely no

justification for staying the interim order of maintenance.

16] The only remedial measure in such situation is to counsel

the child so that he will be ready to have access with his father but

staying the order of interim maintenance and thereby depriving him

from the essential requirements of the life cannot be called a legal,

equitable or correct. After all the grant of maintenance is for his

survival and such order of maintenance cannot be conditional, in the

way that if the child refuses to have access to his father, he will not

be entitled to maintenance. The impugned order passed by the

Family Court linking payment of maintenance to the access of child

being not justified or legal needs to be set-aside.

17] Hence, the Writ Petition is allowed to that extent and the

impugned order passed by the trial Court on 03/11/2015 staying the

order of maintenance of Master Dhruva till the access is given to the

Respondent stands quashed and set-aside. However, it is done so,

with a fervent hope that child is counseled by mother or if necessary

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by an expert to meet his father.

18] Learned counsel for the Petitioner submits that vide

order passed by this Court on 05/02/2016 the Respondent has

deposited an amount of Rs.65,000/- in this Court towards arrears of

maintenance and the Petitioner may be allowed to withdraw the said

amount. In view of the disposal of this petition, the Petitioner is at

liberty to withdraw the said amount of Rs.65,000/-.

19] As regards further arrears of maintenance learned

counsel for the Respondent fairly concedes that the Respondent will

deposit 50% of the arrears before Diwali Vacation and remaining

50% before the Chrismas Vacation. The statement is accepted.

20] The Writ Petition stands disposed off in above terms.

21]             Rule is made absolute in above terms.



                                 (DR. SHALINI PHANSALKAR-JOSHI, J.)