Bombay High Court

Poonam Jaidev Shroff vs Jaidev Rajnikant Shroff on 4 July, 2025

          Digitally
2025:BHC-AS:26922
          signed by
          RUSHIKESH
RUSHIKESH VISHNU
VISHNU    PATIL
PATIL     Date:
          2025.07.04
          19:51:37
          +0530
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                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CIVIL APPELLATE JURISDICTION

                                             WRIT PETITION NO.4413 OF 2025

                       Poonam Jaidev Shroff
                       An adult, Indian Inhabitant of
                       Mumbai, residing at 82, Pali Hill,
                       Bandra, and currently residing at                  Petitioner
                       No. 38 Pali Hill, Bandra, Mumbai -
                       400 050 (A-2742 of 2015)
                                              Versus
                       Jaidev Rajnikant Shroff
                       An adult, Occ: Business, British
                       citizen, Dubai resident, and NRI
                       residing at 82, Pali Hill, Rajendra                Respondent
                       Kumar Chowk, Bandra (West),
                       Mumbai - 400 050 (A-2742 of
                       2015)

                                           -----------------------------------
                       Mr. Girish Godbole, Senior Advocate a/w Adv. Madhu Gadodia, Ms
                       Kimaya Prajapati, Ms Anisha Nair and Mr. Udit Mehta i/b Naik
                       Naik & Co., for the Petitioner.
                       Mr. Vineet Naik, Senior Advocate a/w Mr. Sameer Tapia, Ms Siddai
                       Doshi and Mr. Rohan Marathe i/b ALMT Legal, for the Respondent.
                                                   -------------------------------------
                                                    CORAM : MANJUSHA DESHPANDE, J.
                                        RESERVED ON : 17th JUNE, 2025
                                   PRONOUNCED ON : 04th JULY, 2025

                                                           :JUDGMENT:

1. Rule. Rule made returnable forthwith, the Writ Petition is

taken up for final disposal with consent of the parties.

2. The Petitioner assails the order dated 31 st January 2025

passed below Exhibit- 225 by the Judge, Family Court No. 7 at

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Bandra, Mumbai, in Petition No. A - 2742 of 2015. By way of the

Application (below Exhibit- 225) filed under Section 18 of the Hindu

Adoption and Maintenance Act, 1956 (for short "the HAMA, 1956"),

the Petitioner-wife herein has prayed for clubbing of her petition for

maintenance being Petition No. A- 26 of 2023 with the Petition No.

A-2742 of 2015 filed by the Respondent-husband herein for divorce

under Section 13 of the Hindu Marriage Act, 1955 (for short "the

HMA, 1955").

3. For the sake of convenience and to avoid confusion, the

parties are referred to as husband and wife hereinafter.

4. The Application (below Exhibit - 225) filed by the wife in the

Hindu Marriage Petition, has been rejected vide Order dated 31 st

January 2025 by the Judge, Family Court No. 7 at Bandra, Mumbai.

5. The wife, who had filed the Application for maintenance

under the HAMA, 1956, has preferred the present Writ Petition

against the order of rejection of her Application for clubbing of the

two proceedings. The facts giving rise to the present Writ Petition,

according to the narrations of Petitioner, are as under :

(i) The Petitioner-wife and the Respondent-husband

herein were married on 27.11.2004, under the Special

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Marriage Act, 1954.

(ii) A daughter, namely, Rudritara Shroff is born out of the

wedlock of the parties.

(iii) The husband has filed petition for divorce being M.J.

Petition No. A- 2742 of 2015, before the Family Court, Bandra,

on 06th October 2015 on the ground of alleged cruelty.

(iv) The wife opposed the said petition by filing written

statement on 20th February 2019. After the amendment to the

said petition, amended written statement is also filed by the

wife. The wife has not filed any counterclaim.

(v) During the pendency of proceedings, the wife has filed a

Miscellaneous Application seeking interim maintenance to the

tune of Rs.1.90 Crores per month for herself and her minor

daughter Rudritara.

(vi) The Family Court directed the husband to pay an

amount of Rs. 7 lakhs per month to the wife and Rs.5 lakhs per

month to the daughter and Rs. 20 lakhs as one time litigation

expenses, vide Order dated 30th July 2018.



        (vii)    The order granting interim maintenance was subject



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matter of challenge before this Court in a Writ Petition filed by

the wife for enhancement of the maintenance amount. The said

Writ Petition came to be dismissed vide order dated 06 th

February 2020, with no stay to the order impugned.

(viii) The dismissal of the said Writ Petition has been

challenged by the wife before the Hon'ble Supreme Court, in

Civil Appeal No. 2719 of 2022, which is pending before the

Hon'ble Supreme Court.

(ix) The issues in Divorce Petition filed by the husband

came to be framed on 21st October 2021.

(x) Since no counterclaim was filed by the wife, issue

regarding the grant of maintenance was not framed. The issues

regarding entitlement of permanent alimony and custody of

minor daughter has also been framed vide Order dated 21 st

October 2021.

(xi) The husband has filed his affidavit in lieu of

examination-in-chief on 17th October 2022, along with a

compilation of documents.

(xii) The husband was cross-examined by the wife's

Advocate on 09th October 2023 and 23rd January 2024.

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(xiii) There are number of proceedings pending between the

parties. In one of such proceedings, the Hon'ble Supreme Court

vide order dated 03rd December 2021 has been pleased to

expedite the proceedings for Divorce pending before the

Family Court.

(xiv) Vide order dated 18th March 2024, the Hon'ble

Supreme Court has requested the Family Court to complete the

proceedings within a period of six months. The trial could not

be completed before 18th September 2024. Since the trial could

not be completed within the prescribed period, the Monitoring

Committee of this Court addressed a communication to the

Family Court to hear the matter on day-to-day basis. The wife

has filed the petition under Hindu Adoptions and Maintenance

Act, 1956, in July 2023, which is at the stage of filing of Written

Statement by the husband.

(xv) In the meantime, the wife has also filed permanent

alimony application on 18th March 2024 in the M.J. Petition

No.2742 of 2015 filed by the husband before the Family Court

at Bandra.

6. On this background, the wife had filed the application (below

Exhibit- 225), on which the impugned Order dated 31 st January

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2025 came to be passed.

7. Shri. Girish Godble, learned Senior Counsel appearing for the

Petitioner-wife submits that, considering the commonality of the

issue of maintenance between the parties in the proceedings which

have been filed under the HAMA, 1956 and the Divorce Petition

under the HMA, 1955, the Application was filed seeking clubbing of

those two Petitions. Since the parties in both proceedings are

common and that the common questions of fact and law are

required to be considered in both proceedings, clubbing both the

proceedings together would shorten the litigation and eliminate the

possibility of conflicting judgments and orders that are likely to be

passed if the proceedings are conducted separately.

According to him, the Family Court has fell in error by

holding that the proceedings are under two distinct statutes; the

legal principle and cause of action are also distinct in both the

proceedings, therefore, those cannot be clubbed together. According

to him, in the Divorce Petition, the wife has filed a permanent

alimony application, therefore there is a vivid overlapping between

the issues of permanent alimony and the one for maintenance. It is

urged that, even in the Divorce proceedings question of permanent

alimony is required to be adjudicated, therefore, it is in the fitness of

things that the Divorce and Maintenance proceedings should be

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tried together.

8. Mr. Girish Godbole, learned Senior Counsel would submit

that, the consolidation of both the proceedings would facilitate the

trial, since the parties to the dispute in both the proceedings are

same, even the witnesses would be the same. Hence, the

proceedings can be decided expeditiously. If both the proceedings

are clubbed together, a common trial and recording of evidence of

both the cases can be conducted together. It would ensure

consistency in the judicial findings and avoid conflicting orders. It

would certainly save the time and avoid unnecessary duplication of

proceedings.

He further submits that, considering that an additional issue

regarding permanent alimony is also framed vide Order dated 21 st

October 2021 and that too forms part of the proceeding in the

Hindu Marriage Petition for divorce. There would be a repetition of

the evidence to be lead in both the proceedings. In order to avoid

the repetition of leading of evidence, in the two set of proceedings, it

would be appropriate to club the proceedings.

It is further submitted that, the finding of the Judge, Family

Court at Bandra that, the Divorce Petition is related to dissolution of

marital relationship, whereas maintenance Petition is about

financial sustenance and support, cannot be a ground for refusing to

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club the matters and such ground is not sustainable since the

additional issue of permanent alimony is already framed by the said

Court, which is common in both the proceedings. It is his

contention that though the stages of both these proceedings are

different, and the husband has yet to file a Written Statement in the

Petition filed by the wife for Maintenance under Section 18 of the

HAMA, 1956, however, if this Court directs the husband to file

Written Statement within the stipulated period, a day-to-day

schedule can be worked out for bringing the proceedings under the

HAMA, 1956 at the same stage to that of divorce proceedings to

synchronize the proceedings under the HMA, 1955 and, thereafter,

the proceedings can be tried together.

9. Reliance is placed on the reported judgment of this Court in

case of Sanjeev Indravadan Dani V/s. Rupal Sanjeev

Dani1, wherein this Court has held that consolidation of the trial of

two separate petitions can be granted by the Court by invoking its

inherent powers under Section 151 of the CPC. The separate

petitions pending before the Family Court under Sections 9 and 13

of the HMA between the same parties were consolidated by this

Court by exercising its powers under Section 151 of the CPC for

meeting the ends of justice.



1 2010 (1) Mh.L.J

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The learned Senior Counsel has drawn by attention to the

observations of the Hon'ble Supreme Court which have been

reproduced in paragraph 12 of the said judgment, wherein it is

observed that, it is not necessary that all question or issues should

be common to both actions. Even if some issues and some evidence

is common, it would be sufficient for a joint trial especially, when

the two actions arise out of the same transaction or series of

transactions.

The learned Senior Counsel has also relied on the following

observation made by this Court in paragraph 19 of the said

Judgment:

"19. We have no hesitation in taking the view that the Family Court has ample powers to order consolidation of trial of two petitions pending before it between the same parties even if the same were claiming entirely different reliefs. Such power can be exercised with reference to the inherent powers under Section 151 of the Code. That power is in no way impacted by provisions such as section 21 A of the Hindu Marriage Act."

10. Per contra, Mr. Vineet Naik, learned Senior Counsel for the

Respondent-husband submits that the application of the Petitioner-

wife is not at all maintainable. The Application has been filed in

order to avoid the regular procedure of conciliation undertaken

before the Family Court. The wife wants to directly club the

proceedings of maintenance without undergoing the regular

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procedure. He also objects the clubbing of proceedings, on the

ground that the Divorce Petition has been filed by the husband in

the year 2015 i.e. almost eight years prior to the filing of the

Application, by the wife under the HAMA, 1956.

11. According to him, though the parties to both the proceedings

are same, but considering the nature of relief that is prayed for and

the evidence that is required to be adduced in both the proceedings

is different. The clubbing would not be appropriate. The

proceedings filed by the husband are under Section 13 of the HMA,

1955 for Divorce, in which the nature of evidence that is required to

be adduced by the wife as well as the husband is different from the

nature of evidence that is required to be adduced in the proceedings

for maintenance under Section 18 of the HAMA, 1956.

12. The learned Senior Counsel for the Respondent-husband

further submits that the maintenance proceedings during the

divorce are distinct and serve a different purpose. It is only during

the pendency of the Divorce proceedings the interim maintenance

can be granted, for which the evidence adduced by the parties is of

different nature. The maintenance proceedings under HAMA are

filed by the wife are instituted two years ago, in which the Written

Statement is yet to be filed by the husband.




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He further points out that, the Hon'ble Supreme Court vide

Order dated 03rd December 2021 itself while hearing the Interim

Application filed by the wife in Civil Appeal, filed by the husband

has passed an order directing the Family Court to expedite the

proceedings of Petition No. A- 2742 of 2015 and decide it as

expeditiously as possible.

Thereafter, again vide Order dated 18 th March 2024 the

Hon'ble Supreme Court has directed that, the proceedings should be

decided within a period of six months from the date of order. In

spite of that, the proceedings have not yet been decided and,

presently, day to day hearing of the Petition for divorce is going on

as per the direction issued by the Monitoring Committee of this

Court. Therefore, in view of the direction issued by the Hon'ble

Supreme Court as well as this Court, it would not be appropriate to

club the two proceedings. It is submitted that it would result in

delaying the proceedings filed by the husband in the year 2015, as a

result of consolidation of proceedings.

13. It is his contention that, though the wife has filed belated

application in the Petition for Divorce, making a prayer for

permanent alimony, the relief of the wife would depend upon the

outcome of the Divorce proceedings. If the decree of divorce is

refused, there would be no question of granting any permanent

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maintenance under HMA, 1955.

On the other hand, in the petition filed by the wife under

Section 18 of the HAMA, 1956, the relief can be granted only during

the subsistence of marriage. A divorced wife cannot claim any

maintenance under HAMA, 1956. Her only remedy is under HMA,

1955. In support of his submission, reliance is placed on the

judgment of this Court in case of Panditrao Chimaji Kalure

V/s Gayabai Panditrao Kalure2.

In view of the aforementioned position of law, according to

him, considering the two different enactment under which the relief

is claimed by the respective parties, the order passed by the Judge,

Family Court at Bandra (below Exhibit - 225) is just and proper,

therefore does not deserve any interference.

14. Heard the respective counsel for the parties.

15. After going through the impugned order and the relevant

documents placed on record, it appears that the husband has filed

the Divorce proceedings on 06th October 2015. After raising

challenge to various orders in the proceedings for Divorce, which

have reached up to the Hon'ble Supreme Court on more than one

occasion. The wife has filed the Petition under Sections 18 and 23 of

the HAMA, 1956 on 07th July 2023. Even prior to filing of the 2 2002(2) Mh.L.J. 53

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Petition for maintenance by the wife, the Hon'ble Supreme Court

had directed the Family Court to expedite the Divorce proceedings

filed by the husband vide Order dated 03 rd December 2021, as well

as subsequent order dated 18th March 2024. In fact, on 18 th March

2024 directions are given by the Hon'ble Supreme Court, to decide

the Divorce proceedings within a period of six months. It appears

that on the same day the wife has filed the Miscellaneous

Application seeking permanent alimony of Rs.1000 Crores in the

Divorce proceedings. It is informed that presently, day to day

hearing of the Divorce Petition is being conducted.

16. In view of the above undisputed facts, this Court is called

upon to decide whether it would be appropriate to grant the prayer

made by the Petitioner- wife, by setting aside the impugned order?

Section 151 of the CPC confers inherent powers on the court,

which reads thus:

"151. Saving of inherent powers of Court.- Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the Court."

Admittedly, the courts are vested with inherent powers under

Section 151 of the CPC, which can be invoked if necessary for

meeting the ends of justice, or to prevent the abuse of process of

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court. Fact remains that such power is discretionary. When two

suits are filed and the matter in issue is directly and substantially

similar to the issue in the suit previously instituted between the

same parties, the discretionary powers can be exercised by the

courts for consolidation of two proceedings. It is expected that the

courts should take an over all view of the matter. Only after taking

into consideration, convenience of the parties; as well as to avoid

separate overlapping evidence in the proceedings; if the parties to

the proceedings are same and the evidence required to be adduced

is also same, in order to avoid conflicting orders, the court can pass

an order directing to consolidate the two proceedings, which would

serve the ends of justice.

17. In my view, the first impediment in granting the prayer of the

Petitioner is the order passed by the Hon'ble Supreme Court, which

directed the Family Court to decide the Divorce proceedings within

a period of six months from the date of order i.e. from 18 th March

2024, which is already over. When the time granted for deciding

the proceedings within a period of six months was about to get over,

the communication was addressed to the Hon'ble Supreme Court on

10th September 2024 through the Registry of this Court seeking

extension of time. Similarly, one more communication was

addressed to the Registrar (Judicial - II) of this Court intimating

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him about the above facts alongwith letter addressed to the Hon'ble

Supreme Court for extension of time. In response to the said letter,

the Registrar (Judicial - II) informed the Family Court at Bandra,

Mumbai that the Committee headed by the Hon'ble Judge of this

Court directed the Family Court to schedule hearing of the Petition

on day to day basis and to take effective steps for deciding it

expeditiously. In furtherance thereto, an order (below Exhibit- 1)

was passed on 18th September 2024 by the Judge, Family Court.

The Family Court referring to the order dated 18 th September 2024

passed an order directing the parties, that the matter will be taken

up on every working day as per the order dated 13 th September

2024.

18. So far as the stage of maintenance under the HAMA, 1956 is

concerned, the Petitioner- wife has filed her affidavit in lieu of

examination-in-chief on 18th February 2025. As against that, the

Divorce proceedings filed by the husband, are at an advance stage.

Apart from the huge difference in the stage of two proceedings,

cause of action in both the proceedings is different, both the

proceedings arise out of different enactments and serve distinct

legal purpose. The two remedies are independent and distinct. The

maintenance is an independent legal right, therefore, it will have to

be proved independently and consolidating it with the matrimonial

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dispute may lead to procedural complications and unnecessary

delay, therefore, it would be appropriate to decide the proceedings

independent of each other.

The permanent alimony claimed by the Petitioner-wife in the

Divorce proceedings under Section 25 of the HMA, 1955 is an

ancillary relief dependent upon the proceedings filed under Section

9 to 14 of the HMA, 1955. It is not the main relief, it is an incidental

relief in the proceedings under the HMA. As against that, the relief

of maintenance claimed by the Petitioner-wife under Section 18 of

the HAMA, 1956 is an independent relief. This is a relief, which a

Hindu wife is entitled to claim during the subsistence of marriage,

and would be entitled to live separately from her husband without

forfeiting her claim for maintenance. Provided, she fulfills any of the

conditions in Section 18, in sub-clause (a) to (f) of the HAMA. In

short, without disturbing her marital status or irrespective of

proceedings of marriage pending between the parities, a wife is

entitled for separate residence and maintenance from her husband.

19. This issue has been elaborately considered and decided by the

Hon'ble Supreme Court in case of Chand Dhawan (Smt) V/s.

Jawaharlal Dhawan3. More particularly, in paragraph 25 the

Hon'ble Supreme Court has explained the subtle difference in the

3 1993 (3) SCC 406

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scope and object governing the provision of maintenance provided

in two different enactments. Paragraph 25 of the said judgment

gives clarity to the position of law, which reads thus:

"25. We have thus, in this light, no hesitation in coming to the view that when by court intervention under the Hindu Marriage Act, affectation or disruption to the marital status has come by, at that juncture, while passing the decree, it undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at that time. It also retains the power subsequently to be invoked on application by a party entitled to relief. And such order, in all events, remains within the jurisdiction of that court, to be altered or modified as future situations may warrant. In contrast, without affectation or disruption of the marital status, a Hindu wife sustaining that status can live in separation from her husband, and whether she is living in that state or not, her claim to maintenance stands preserved in codification under Section 18(1) of the Hindu Adoptions and Maintenance Act. The court is not at liberty to grant relief of maintenance simpliciter obtainable under one Act in proceedings under the other. As is evident, both the statutes are codified as such and are clear on their subjects and by liberality of interpretation interchangeability cannot be permitted so as to destroy the distinction on the subject of maintenance."

20. Though the Petitioner- wife has relied on the judgment of this

Court in Sanjeev Indravadan Dani V/s. Rupal Sanjeev

Dani (supra), the two proceedings which were consolidated by

exercising the inherent powers were under the same enactment that

is the HMA, 1955, which were filed under Sections 9 and 13 of the

HMA respectively. Therefore, this Court while exercising the powers

under Section 151 of the CPC has taken a view that, since the parties

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are same, even the evidence that would be adduced by the parties

would be same, hence, in order to avoid multiplicity of the

proceedings and duplication of evidence the order has been passed.