Shalon Siff Mario Carvalho S/O ... vs Lorraine W/O Shalon Carvalho
2021 Latest Caselaw 14909 Bom

FCA 21-21                                      1                          Judgment

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                      NAGPUR BENCH, NAGPUR.
                  FAMILY COURT APPEAL NO. 21/2021

Shalon Siff Mario Carvalho S/o Joaquim
Lourenhco Serapiao Carvalho,
aged about 39 years, Occ. Business,
R/o C/o Jubilee Bakery, Opp. Durga Mata
Mandir, Chhaoni, Katol Road, Nagpur-440 013.                          APPELLANT
                                 .....VERSUS.....
Lorraine W/o Shalon Carvalho,
aged about 34 years, Occ. Nil,
R/o C/o Ambrose Dalgado,
Jubilee Bakery, Mohan Nagar, Nagpur.                                RESPONDENT

                  Shri Bhushan Dafle, counsel for the appellant.
                 Shri Masood Shareef, counsel for the respondent.

CORAM : A. S. CHANDURKAR AND G.A. SANAP, JJ.

DATE       : 12TH OCTOBER, 2021.
ORAL JUDGMENT              (PER : A.S. CHANDURKAR, J.)

ADMIT. Heard finally with consent of learned counsel for the

parties.

2. This appeal under Section 19 of the Family Courts Act, 1984

read with Section 55 of the Indian Divorce Act, 1869 (for short, 'the Act

of 1869) takes exception to the order passed by the learned Judge of the

Family Court, Nagpur below Exhibit 6 dated 03.08.2021 thereby allowing

that application and directing the appellant to pay interim maintenance at

the rate of Rs.30,000/- per month to the respondent and Rs.20,000/- per

month each to his sons. These payments have been directed to be made

from 30.01.2019 which is the date of filing of the said application.

FCA 21-21 2 Judgment

3. The appellant and the respondent were married on

17.01.2009 and from the said wedlock they have two children. On

account of marital discord between them some time in April-2018

resulting in disputes arising between them. The respondent started

residing separately with her father alongwith her two children. She

thereafter filed a petition under Section 10(1)(x) of the Act of 1869

seeking a decree of divorce for dissolving the marriage. Other ancillary

reliefs were also sought. On 30.01.2019 an application under Section 36

of the Act of 1869 for grant of alimony pendente lite was also filed.

4. The appellant filed his written statement at Exhibit 27 and

opposed the claim as made. Similarly by filing reply at Exhibit 21 the

prayer made for grant of alimony pendente lite was opposed. The parties

then filed affidavits and by the order dated 03.08.2021 the learned Judge

of the Family Court directed payment of maintenance pendente lite as

stated above. Hence, this appeal.

5. Shri Bhushan Dafle, learned counsel for the appellant-

Husband submitted that the learned Judge of the Family Court erred in

granting an exorbitant amount to be paid to the respondent and the

children without there being any sufficient material on record to justify

that quantum. He submitted that even after separation the respondent

was engaged in Bakery business and was earning sufficient amounts on

FCA 21-21 3 Judgment

the basis of which she could maintain herself and the children. Referring

to the Income Tax returns filed by the respondent from the assessment

years 2014-15 it was urged that the same indicated her earnings which

thus disentitled her to grant of any maintenance. He referred to the bank

statements pertaining to the respondent to urge that various amounts

were credited in the said accounts indicating her regular source of

income. By not placing on record the Income Tax returns for the

subsequent years after 2019 it was submitted that the respondent had

sought to withhold material information from the Court which disentitled

her from receiving any amount of maintenance. He then submitted that

no reasons whatsoever were assigned by the Family Court to justify the

grant of interim maintenance from the date of the application.

Considering the prevalent pandemic situation it was submitted that the

payment of maintenance ought to have been directed from the date of the

order. He also submitted that the appellant was willing to pay the

maintenance as directed by the Family Court to his children but from the

date of the order and not from the date of the application. He therefore

submitted that in the light of material on record indicating that the

respondent had sufficient source of income she was not entitled to grant

of any maintenance whatsoever. On this count, the impugned order was

liable to be set aside.

FCA 21-21 4 Judgment

6. Shri Masood Shareef, learned counsel for the respondent-Wife

supported the impugned order. According to him the Bakery business

was being conducted by the appellant and the respondent jointly when

they resided together. Since separation it was the appellant alone who

was in-charge of the said business and all income therefrom was being

retained by him. He referred to various documents placed on record

including the Bank statements as well as the details pertaining to

ownership of vehicles of the appellant. The same indicated his financial

status. Though the respondent had filed her Income Tax return earlier,

after separation since the respondent did not have any income from the

business such returns were not filed. The respondent was also

maintaining her two sons and they were all entitled to have the same

standard of living and comfort as that of the appellant. It was thus

submitted that considering the fact that the learned Judge of the Family

Court had considered the entire material on record there was no reason

to interfere with the said order. By directing payment of interim

maintenance from the date of the application, no error was committed in

that regard.

7. The following point arises for determination:-

(a) Whether the order passed by the Family Court directing payment of interim maintenance deserves to be interfered with?

FCA 21-21 5 Judgment

8. We have heard the learned counsel for the parties and we

have perused the material placed on record. The marital relations

between the parties and the fact that since April-2018 the parties are

living separately is not in dispute. The filing of proceedings of divorce

and the application seeking grant of interim maintenance is dated

30.01.2019. Perusal of the proceedings filed by the respondent indicates

that in paragraph 120 of the petition for grant of divorce the respondent

has given list of immovable properties as well as movable properties of

the appellant. In the written statement while dealing with the aforesaid

averments, the appellant in paragraph 118 of the written statement has

vaguely stated that the shop and movables were purchased by him out of

the business run by him and the loans and equated monthly installments

were paid by him alone. These averments are vague and do not deny the

ownership of various immovable and movable properties mentioned

therein. A prima-facie perusal of the averments in paragraph 120 gives

an idea of the nature of business being conducted by the appellant and

the immovables owned by him. Thereafter various Bank statements,

Insurance policies and other documents indicate substantial financial

transactions by the appellant alongwith his borrowings/ lendings. These

documents prima-facie indicate the financial standing of the appellant

which has been noted by the learned Judge of the Family Court and we

do not find any reason to disregard these prima-facie findings.

FCA 21-21 6 Judgment

9. As regards the Income Tax returns of the respondent it is

undisputed that the last return filed was prior to their separation and

thereafter there are no returns filed. It has been found that after

separation the appellant has not been able to show that the respondent

was earning for maintaining herself. It is further seen that the immovable

properties and the movables are in the custody of the appellant. The

finding therefore recorded that the respondent was entitled to receive

maintenance for herself and her children is again based on the material

available on record.

10. As regards the quantum of the interim maintenance as

granted, we find that said amount has been determined after taking into

consideration the earnings/spending of the appellant. After noting that

the respondent and her children were entitled to be maintained at par

with the lifestyle of the appellant, the amount of Rs.30,000/- per month

for the respondent and Rs.20,000/- per month each for the children has

been determined. We do not find any arbitrariness in determining this

interim maintenance. Further, grant of maintenance from the date of the

application is the rule and granting it from the date of the order is an

exception which position is well settled and reiterated in the decision in

Rajnesh Versus Neha & Another [(2021) 2 SCC 324]. We therefore do

not find any reason to take a different view at this interim stage since we

FCA 21-21 7 Judgment

are satisfied that all relevant material on record has been adverted to by

the learned Judge of the Family Court. The point as framed is answered

by holding that there is no reason to interfere with the order passed

below Exhibit 6.

11. For the aforesaid reasons we do not find any merit in the

challenge as raised to the interlocutory order determining maintenance

pendente lite. Consequently the Family Court Appeal No.21 of 2021

stands dismissed leaving the parties to bear their own costs.

The arrears of maintenance in terms of the order passed by

the Family Court on 03.08.2021 be cleared by 31.12.2021.

It is clarified that observations made hereinabove are only for

the purposes of considering the challenge to the order passed below

Exhibit 6 and the Family Court shall not be influenced by any

observations while deciding the proceedings finally on merits.

Order accordingly.

              (G.A. SANAP, J.)              (A.S. CHANDURKAR, J.)


APTE