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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE CIVIL JURISDICTION
WRIT PETITION NO. 807 OF 2017
ALONGWITH
CIVIL APPLICATION NO. 1916 OF 2017
Viren Jaysukhlal Jasani, )
aged about 37 years, Occ.Self Employed, )
residing at 101, Coral Shree, )
Opp.HDFC Bank, Vallabh Baugh Lane, )
Tilak Road, Ghatkopar (E), )
Mumbai 400 077 ) ….. Petitioner/Applicant
VERSUS
Mrs.Milounie Viren Jasani, )
aged about 36 years, Occ.Self Employed, )
residing at Plot No.521, Shakti, )
Adenwala Road, Matunga East, )
Mumbai 400 019 ) ….. Respondent
—————————————–
Mr.Jairam Chandnani for the Applicant.
Ms.Seema Sarnaik for the Respondent.
CORAM : G.S.KULKARNI, J.
DATE : 14th SEPTEMBER, 2017
JUDGMENT
Rule. Returnable forthwith. Heard finally by consent of parties.
2. By this petition filed under Article 227 of the Constitution, the petitioner
husband is before this court challenging the order dated 10 th October,2016 passed
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by the learned Judge, Family Court, Mumbai whereby an application as filed by
the respondent wife for award of maintenance pendente lite has been granted in the
following terms :-
1) The application is allowed as under ;
2) The respondent shall pay maintenance pendentelite @
of Rs.20,000/- per month each to the petitioner and her
daughter i.e. total amounting to Rs.40,000/- per month from
the date of filing of the application i.e. January 2015.
3) The respondent shall further pay separate
accommodation charges/rent of Rs.20,000/- per month to the
petitioner from October,2016.
4) He shall further pay litigation expenses of Rs.20,000/-
to the petitioner.
5) Copy of the order be supplied free of costs to the
petitioner.
6) Order dictated and pronounced in open Court.
3. The respondent wife has instituted Petition No. A-183 of 2015 seeking a
decree of divorce under the provisions of section 13(1)(i-a) of the Hindu Marriage
Act as also has filed a petition under section 26 for interim custody of the child. In
paragraph 23 of the matrimonial petition, the respondent had set out the earnings
of the respondent husband. The case of the respondent before the Family Court is
that the petitioner is associated with the family businesses and has a good source
of income and always had high standard of living. The respondent has also placed
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on record the biodata of the petitioner received at the time of marriage which
disclosed that the petitioner was engaged in the family business. The relevant
extract of which reads thus :-
EXPERIENCE : – Worked for 2 years in Mumbai with a software company,
Developing financial software
– Worked for almost 2 years in A.M.S.(USA) for
developing software for American Government
– After returning back from the USA joined family business
in metal fabrication particularly for developing export of
sheet metal parts in the European countries.
4. In the application filed by the respondent for maintenance pendente lite, the
respondent has set out in detail in paragraph (E) the grounds justifying the said
claim of maintenance pendente lite. It was contended that the respondent and the
petitioner were married on 18th March, 2006. After the marriage, though she being
a graduate in Commerce, she never undertook employment due to denial of such
opportunity by the family members of the petitioner and the petitioner, as a matter
of their traditional social status, wherein the daughter-in-law is not allowed to
venture with outside employers. The respondent stated that during the stay of the
respondent at the matrimonial house, the respondent was dependent on the
petitioner and his family members and the father-in-law, who disbursed an amount
of approximately Rs.75,000/- to Rs.80,000/- every month for the maintenance of
the family and household which, was received in lumpsum of Rs.2 lac to Rs.3 lac
periodically/quarterly, and the last such amount so distributed was in the month of
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May 2013 until the respondent was staying at her matrimonial house. In paragraph
28 of her application, the respondent also set out the necessity for alternative
residential accommodation that her parental residence was totally insufficient to
accommodate the respondent and her minor daughter, as also the parental
residence was far away from school where the minor daughter was taking
education. In paragraph 29 of her application, the respondent had made averments
of the standard of living and amenities availed by her at her matrimonial house. In
paragraph 31 of the application, the respondent averred in regard to the petitioner’s
earnings. It was stated that the income tax return of the petitioner was not
commensurate with the real income. It was specified that the family businesses
provided sufficient cash flow and the profit was distributed to the family members
in cash from time to time. It was stated that though the petitioner may not show
high income for himself, he was supplemented in terms of his share, by way of
cash disbursement from the family business. This was evident from the fact that
petitioner was having substantial assets by having investments in a flat at
Leonardo, B, Hiranandani, Thane which was one BHK flat and at the value of
Rs.75,00,000/- and fixed deposits in substantial sum in the sum of Rs.25,00,000/-
to Rs.30,00,000/- . This was in addition to the 2 BHK flat in building Shubham
which was at the relevant time was vacant after the respondent was made to leave
the matrimonial house. It was further pleaded that the petitioner was also engaged
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in share investments and trading and was earning income from that source. It was
stated that the petitioner had maintained a high standard of living. It is on these
premises the respondent prayed in the following terms :-
(a) Pending the hearing and final disposal of the main
petition, the Hn.Court may please order the Respondent to pay
to the Petitioner and minor daughter interim maintenance
pendete-lite of the amounts per month or yearly as the case
may be as mentioned in the Schedule of claim below as and by
way of maintenance from the month of June 2013, when the
Petitioner started staying in her parental house at Matunga.
Amount per Amount per
month Annum
A) For the Child Ms.Prisha
Age 7 years 8 Month
1. Educations Fees School Expense in
the school where she is studying
personally Includes tuition, Bus Fare,
books, Uniform, Extracurricular, etc. 10,000 1, 20,000
2. Food etc 250-275 per day. Hence for 8,000 96,000
30 days
3. Clothing 1,500 18,000
4. Miscellaneous : Toys, toffees outing, 1,000 12,000
Playing etc.
Sub Total 20500 246000
5. Premium for Daughter’s heath insurance
accidents insurance, and life insurance
(Rs.5 Lakhs) to be taken out until she 15,000
attains majority.
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5. The petitioner appeared before the Family Court and opposed the
application. The contention of the petitioner is that the interim maintenance which
was prayed by the respondent cannot be granted in as much as the petitioner had
no financial means for paying such amounts as demanded by the respondent. To
support this contention, the petitioner placed reliance on the income tax returns
which were filed by the petitioner to contend that the financial status of the
petitioner was reflected in the income tax return.
6. From the reply dated 10th April,2015 as filed by the petitioner to the
respondent’s application for interim maintenance, it can be seen that the basic case
of the petitioner is of denial as seen from paragraphs 7, 8 and 9 which deals with
the averments as made by the petitioner in paragraphs 22 to 35. It was the case of
the petitioner that the respondent has suppressed certain facts that she was trading
regularly at stock market, as also was assisting her father in the business and was
earning handsome salary. However except for the bare words on paper there was
no material to support this contention. The petitioner did not furnish any
explanation to the documents as placed on record by the respondent which showed
that there was sufficient income as clear from the bank entries, as also the specific
case, as pleaded by the respondent that the petitioner was associated with the
family concerns.
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7. Considering the above factual position and the material on record, the
learned Judge of the Family Court passed the impugned order granting interim
maintenance of the said amounts.
8. Learned counsel for the petitioner in assailing the impugned order, submits
that it is erroneous in law and facts as the learned Judge of the family court has
completely overlooked that the petitioner had no source of income and did not
have an income which can satisfy the interim maintenance as granted by the
impugned order. It is submitted that the income tax returns of the petitioner clearly
demonstrated that the petitioner had not have sufficient income. It is further
contended that the petitioner was not so successful in part of the family business,
and therefore the petitioner would be unable to comply with the directions as
contained in the impugned order. Learned counsel for the petitioner has drawn my
attention to the averments as made by the respondent in her matrimonial petition,
as also interim maintenance application, to submit that these averments would
indicate that though initially the petitioner was in a sound financial status, however
at the time when the court considered the interim application for maintenance, the
financial condition of the petitioner was not such, that he could meet the liabilities
as held by the impugned order. In so contending there is no denial of the fact that
the petitioner is the owner of the flat No.403, Leonardo, B, Hiranandani Complex,
Ghodbandar Road, Thane now valued at about Rs.1 crore and that there are fixed
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deposit investments with the ICICI Bank, the value of Rs.22 lacs as also there are
fixed deposits in the State Bank of India, Ghatkopar (East) Branch of Rs.17 lacs.
There is also no denial of the fact that flat no.1301 built up 1350 sq.ft. at Shubham
CHS, Rajawadi, Ghatkopar East, Mumbai which is valued at Rs.2.70 crores as the
joint family property which was the matrimonial house is still in use by the
petitioner for his residence.
9. On the other hand, learned counsel for the respondent in support of the
impugned order and also without prejudice to the rights and contentions of the
respondent as urged in Writ Petition where her prayers are for the enhancement of
the maintenance amount, would contend that the case as urged on behalf of the
petitioner in defence of the interim application was totally sham and bogus. It is
submitted that the respondent on the basis of several documents which were placed
on record before the Family Court had made a prayer claiming the said amount of
interim maintenance for herself and the minor schooling daughter. It is submitted
that there was no material to displace the respondent’s case as made out from the
said documents. It is further submitted that the bio-data of the petitioner given to
the respondent’s family at the time of marriage clearly reflected that the family of
the petitioner had several businesses as set out in paragraph 11 of the matrimonial
petition. It was submitted that the bio-data of the petitioner clearly indicates that
the petitioner had joined the family business after returning from USA. Learned
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counsel for the respondent has also drawn my attention to the specific averments
made in the petition before the Family Court more particularly the averments in
paragraphs 22 to 23 of the petition as noted above which were in regard to the
financial position of the petitioner. My attention is further drawn to the specific
averments made in paragraphs 27 to 31 of the interim application as stated above
by which the respondent justified her claim to seek maintenance. Learned counsel
for the respondent has also drawn my attention to the income tax returns filed on
behalf of the respondent which shows that the income of the respondent was not
more than Rs.3,000/- which was earned by way of interest received by her on a
fixed deposit of Rs.3 lacs which was the amount given to her by her father. It is
submitted that there was substantial income earned from the various family
businesses of the petitioner, the turnover of which was in crores. It is thus
submitted that the case of the respondent on the basis of the documents was
appropriately accepted by the learned Judge Family Court to the extent granted by
the impugned order. It is submitted that though the impugned order has been
passed on 10th October,2016 and despite there being no stay granted by this court
to the impugned order, the petitioner is paying only Rs.20,000/- towards the share
of the minor daughter. It is submitted that if the case of the petitioner is to be
believed, then the petitioner could not have made the voluntary offer to pay an
amount of Rs.20,000/- as being paid to the minor daughter for her education
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expenses. It is submitted that the petitioner has tried every possible means to
avoid the liability to make payment in compliance with the impugned order passed
by the family court. It is submitted that the order passed by this court dated 30 th
January,2017 merely records the statement made on behalf of the petitioner that
the petitioner would continue to pay Rs.20,000/- towards the daughter and this
order cannot be contended to mean that the other directions to pay the amount of
maintenance to the petitioner and the direction to pay the amount for the house
rent as contained in the impugned order are in any manner stayed.
10. On the aforesaid rival contentions I have heard learned counsel for the
parties. I have perused the impugned order as also the several documents as
placed on record on behalf of the respondent. It is quiet clear that the family of the
petitioner has various businesses and that the petitioner is associated with the
family businesses. A perusal of the bank statements and the fixed deposits, as also
the details of the assets which are brought by the petitioner and the high and the
luxurious standard of life being enjoyed by him as seen from the record does not
persuade the judicial conscience to accept the petitioner’s case of a meager income
as put up by the petitioner. The learned Judge of the Family Court in my view has
analyzed all the facts that have emerged on record and more particularly as set out
in paragraphs 4 to 7 of the impugned order. All these are observations which are
made based on material which has come on record and the pleadings of the parties.
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The learned Judge of the Family Court in my opinion has rightly considered that
looking at the association of the petitioner with the family business and the details
of the petitioner’s bank accounts as available on record, as also the fixed deposits
maintained by the petitioner with the bank, that the petitioner did have sufficient
source of income to meet the requirements of the order as passed by the learned
Judge of the Family Court which is to take care of the financial interest of the
respondent and the minor daughter.
11. It is not in dispute that the petitioner is a IIT engineer, who at some point of
time was based in the US. On his return, he has joined the family businesses and
also he was had attempted to take different assignments and on the failure, to
pursue these assignments is now involved in the family business. It cannot be
believed that the petitioner is rendered without any source of the income and much
less in the manner in which it is being projected. The learned judge of the family
court has rightly come to the conclusion that the case of the petitioner that he is
earning a meager amount of Rs.40,000/- to Rs.50,000/- per month as appearing
from his income tax returns cannot be accepted. It has clearly come on record that
before the respondent separating from the matrimonial house, the family was
enjoying a reasonably high standard of living. The petitioner along with the
respondent had also travelled abroad. The respondent now having separated from
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the matrimonial house along with the minor daughter, consistent with the status
and the degree of comfort which she was enjoying is equally entitled to atleast
entitled to a standard and she was enjoying in the matrimonial house and to that
effect would become entitled to the maintenance as granted by the impugned order.
The findings as recorded by the learned Judge of the Family Court are based on the
evidence.
12. Considering all these facts, in my view the amount of maintenance which
has been granted by the learned judge of the Family Court by the impugned order
does not appear to be unjustified and in any manner unreasonable for this court to
interfere in this petition. It is well settled that in exercising jurisdiction under
Article 227 of the Constitution, the court does not wield the powers of an
Appellate Court. The Court would interfere only there is perversity in the findings
as recorded by the Court. A perusal of the impugned order indicates that there is
no such perversity or any illegality which would warrant interference in this
petition.
13. Learned counsel for the petitioner has placed reliance on the decision of the
Supreme Court in case of Kalyan Dey Chowdhury vs. Rita Dey Chowdhury Nee
Nandy, AIR 2017 SC 2383 and the decision of the Supreme Court in case of
Dr.Kulbhushan Kumar vs. Smt.Raj Kumari and another, 1970(3) SCC 129. The
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decision in case of Kalyan Dey Chowdhury (supra) was a case of salary income
being drawn by the appellant husband as referred in paragraph 16 of the decision.
Learned counsel for the petitioner could not justify in what manner this judgment
would assist the petitioner in the facts of the present case. In regard to the decision
in Dr.Kulbhushan Kumar (supra), in my view it is clearly inapplicable to the facts
of the present case more particularly the present case being of interim
maintenance. In fact the principles as laid down in the said decision goes against
the petitioner’s case.
14. In the light of the above discussion, no case is made out for the court to
exercise its jurisdiction under Article 227 of the Constitution. Accordingly the
petition is dismissed. No costs.
15. The petitioner is directed to deposit with the Family court the arrears of the
maintenance as granted by the impugned order within a period of three weeks from
today. If the amount of arrears is not deposited within the said period, the
execution proceedings which are initiated by the respondent shall proceed.
16. Civil application would also not survive and is accordingly dismissed.
(G.S.KULKARNI, J.)
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