Sondur Rajini vs Sondur Gopal on 13 October, 2017

1 fca-132.08,109.08

pmw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.132 OF 2008
WITH
CIVIL APPLICATION NO.189 OF 2009
WITH
CIVIL APPLICATION NO.215 OF 2009
WITH
CIVIL APPLICATION NO.193 OF 2013
WITH
CIVIL APPLICATION NO.348 OF 2015

Husband … Appellant
Versus
Wife … Respondent

WITH
FAMILY COURT APPEAL NO.109 OF 2008
WITH
CIVIL APPLICATION NO.293 OF 2008
WITH
CIVIL APPLICATION NO.258 OF 2013

Wife … Appellant
Versus
Husband … Respondent

Smt. Manjula Rao a/w Ms. Neena Shah, Ms. Sushmitha Sherigar and
Ms. Lavanya Mudaliar for the Appellant (husband) in FCA/132/2008,
for Applicant in CAM/189/2009, for Respondent in FCA/109/2008,
CAM/215/2009, CAM/193/2013, CAM/348/2015, CAM/293/2008,
CAM/258/2013.

Mr. Mihir Desai, Senior Advocate and Mr. Javed Patel and Ms. Devyani
Kulkarni i/by Judicare Law Associates for the Appellant (wife) in
FCA/109/2008, for Applicant in CAM/215/2009, CAM/193/2013,
CAM/348/2015, CAM/293/2008, CAM/258/2013 and for Respondent
in FCA/132/2008, CAM/189/ 2009.

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CORAM : A.S. OKA
SMT. ANUJA PRABHUDESSAI, JJ.

DATE ON WHICH SUBMISSIONS WERE HEARD : 11.08.2017
DATE ON WHICH JUDGMENT IS PRONOUNCED : 13.10.2017

JUDGMENT (PER A.S. OKA, J.):-

1 These two appeals can be conveniently disposed of by a

common judgment and order as both the appeals arise out of the same

matrimonial Petition before the Family Court at Bandra, Mumbai. We

are directing that the names of the parties and their children should be

masked.

2 Marriage Petition No.A-531 of 2004 was filed by the wife in

the Family Court in Bandra, Mumbai. The marriage between the parties

was solemnized on 25th June, 1989. There are two issues born from the

said marriage. The daughter is born on 19 th September, 1993 and the

son is born on 9th February, 2001. Both the children are admittedly

citizens of Sweden. Today, the husband along with the children is

residing in Sweden and the wife is residing in Mumbai. Initially in the

Petition filed by the wife, she sought a decree of judicial separation

under Section 10 of the Hindu Marriage Act, 1955 (for short “the said

Act”). By carrying out an amendment, by way of a prayer made in the

alternative, she sought a decree of divorce under clause (i-a) of Sub-

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Section (1) of Section 13 of the said Act. The wife also prayed for

custody of both the minor children. The wife prayed for a money decree

against husband in the sum of Rs.44,89,000/- with interest thereon at

the rate of 18% or at market rate, whichever is more. In addition, she

prayed for maintenance for herself at the rate of Rs.35,000/- p.m and

for minor children at the rate of Rs.11,000/- p.m. By the judgment and

decree dated 5th March, 2008 the learned Judge of the Family Court at

Mumbai dismissed the prayer for divorce. The learned Judge held that

the wife was entitled to retain custody of both the children. A direction

was issued to grant weekend access to enable the husband to meet the

children. The husband was directed to pay maintenance at the rate of

Rs.11,000/- p.m from the date of the order. An order was also passed to

provide vacation access to the wife. Family Court Appeal No.132 of

2008 has been preferred by the husband being aggrieved by the decree

passed by the Family Court retaining the custody of the minor children

with the wife and directing payment of maintenance to the children.

Family Court Appeal No.109 of 2008 has been preferred by the wife

being aggrieved by the rejection of the prayer for divorce, the rejection

of the prayer for passing a money decree in the sum of Rs.44,89,000/-

with interest thereon and the rejection of the prayer for grant of

maintenance to herself.

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3 At the outset, we may note here that now the controversy

between the parties which is the subject matter of these Appeals has

been narrowed down. The order dated 24 th March, 2017 passed by this

Court is relevant. The order was passed when hearing was conducted

through video conferencing on the fourth floor of the High Court Annex

Building at 5.30 pm on that day. As the husband along with the

children, is in Sweden, hearing was conducted by using the medium of

video conferencing. Paragraphs 1 to 4 of the said order read thus :-

“1. The Appeal was fixed for final hearing today at 3.00
p.m. in the Court. It was heard for some time on the last
date. After hearing the parties for some time, the parties
agreed to settle certain contentious issues such as
dissolution of marriage and withdrawal of rival
allegations and accusations based on which, a decree of
divorce was sought. The Appellant and the Respondent
both agreed to relinquish their right, title or interest
and/or claims against each other’s properties and
inheritance acquired before or after the divorce
anywhere in the world. The parties have agreed to
complete the formalities as regards their divorce. It was
agreed that in the present Appeals, a decree will be
applied in terms of Section 13B of the Hindu Marriage
Act, 1955. The Appellant-wife agreed to sign Swedish
Divorce Application. As regards the custody of the son
Smyan, the wife agreed that the custody will be retained
with the husband. The issue which remains to be sorted
out is of grant of reasonable visitation rights and access
to the mother. As regards the daughter Natasha, the wife
is insisting on her custody. The other contentious issues
which remain are as regards refund of the sum of
Rs.44,89,000/and maintenance as prayed in Prayer
Clauses (c) and (c)(i) of the Petition No.A-531 of 2004.

2. The learned senior counsel appearing for the Appellant-

wife and the learned counsel appearing for the
Respondent-husband have tendered the consent terms

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which are signed in our presence by the Appellant wife
and the Advocate on record for the Appellant-wife and
the Advocate on record for the Respondent-husband.
Today, we had a meeting/hearing through video
conferencing. The husband who is in Sweden stated that
he has agreed to the consent terms. The signature of the
husband will be obtained by sending a copy of the
consent terms to him. During the course of
meeting/hearing through video conferencing, there was
some dialogue between the son and the mother. The
mother could see the daughter. It was agreed to have a
meeting/hearing through video conferencing on 21st
April 2017 around 5.00 p.m.

3. The consent terms are taken on record and marked “C1”

for identification. We accept the statements and
undertakings of the Appellant and the Respondent
incorporated in the consent terms respectively.

4. Another document is tendered which is signed by the
Advocates for both the parties and the Appellant wife
wherein the issues which will need adjudication by this
Court in the pending Appeals have been set out. The
same is taken on record and marked “C2″ for
identification.”

4 The consent terms marked as ‘C-1’ have been signed by the

appellant, the Advocate for the appellant and the Advocate for the

respondent. Though the respondent has not signed the said consent

terms, in the second paragraph of the aforesaid order, the consent of the

husband has been recorded. Even at the conclusion of the hearing of

this Appeal, the learned counsel appearing for the husband has stated

that a decree be passed in terms of the consent terms. The consent

terms marked as ‘C-1’ read thus :

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“CONSENT TERMS

1. The Appellant wife and the Respondent husband have
agreed to convert the above Appeal to a Petition under
section 13(b) of the Hindu Marriage Act, 1955 and
resolve the dispute by agreeing to divorce by mutual
consent.

2. The parties hereto agree and undertake to withdrew all
the allegations and accusations relating to the relief of
decree of divorce made against each.

3. The Appellant and respondent agree undertake that
they relinquish their right and/or interest and/or claims
against each other’s properties, inheritance acquired
before or after the divorce anywhere in the world.

4. That the Appellant agrees and undertakes (i) to sign the
Swedish divorce Application in India to dissolve the
marriage dated 2506.1989 in Sweden on a no fault
basis, without prejudice to her right to claim the return
of Rs.44,89,000/- with interests as prayed in clause (c)
of a the Petition, (ii) her maintenance and alimony of
Rs.35,000/- as prayed in clause (c) (i) of the Petition

(iii) custody of Natasha and reasonable access of Smyan
in India agrees to confine her claim in the above Appeal
as stated herein. The Appellant undertakes not to make
any further claim of maintenance and/ or any monetary
claim in future against the Respondent.

5. The Appellant and the Respondent have signed the
present Consent Terms out of their own free will
without coercion and/ or force and have signed after
reading and understanding the contents of the same.

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However, it is clarified that the Appellant has agreed to
sign divorce form to be presented in Swedish Court on
the representation made by the Respondent that her
presence in Sweden will not be required.”

5 The document signed by the Advocates for the parties and

the wife are marked as ‘C-2’ reads thus :-

“BY CONSENT FOLLOWING ISSUES WILL BE ADJUDICATED
IN the ABOVE APPEAL

1. The issue of monetary claim made by the Appellant wife
i.e. (i) return of the sum of Rs.44,89,000/- and (ii) the
maintenance as prayed in prayer clause (c) and (c) (i)
of the Petition No.A-531 of 2004.

2. The issue of the custody of the girl child Natasha to
Appellant wife.

3. The issue of access to Smyan in India.”

6 Thus, now these Appeals remain confined to the three

issues which are noted in the document marked as ‘C-2’.

7 We must note here that the arrangement in terms of clause

4 of the consent terms at Exhibit ‘C-1’ could not be worked out for

various reasons. Nevertheless, the learned counsel appearing for both

the husband and wife have stated that a decree under Section 13-B of

the said Act be passed.

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8 After having perused the allegations and counter

allegations and the manner in which parties have contested the matter,

we find that there is an irretrievable breakdown of the marriage. The

Petition before the Family Court was presented on 5 th April, 2004.

Before the Family Court and even before this Court, there have been

attempts to save the marriage which have completely failed. Therefore,

this is a fit case where parties should be allowed to convert the Petition

by amending prayer clauses (a) and (a-1) into a Petition seeking a

decree of divorce under Section 13-B of the said Act. Apart from the fact

that once conversion is permitted, the amendment will relate back to

the date of the institution of the Petition, now the law is well settled.

The Apex Court in the case of Amardeep Singh Vs. Harveen Kaur1 held

that the cooling period of six months can be waived. Considering

peculiar facts of the case, perhaps there cannot be a better case to

condone the cooling period. Therefore, we are of the view that this is a

fit case where the marriage between the parties should be dissolved by

a decree of divorce by mutual consent under Section 13-B of the said

Act.

9 Before we refer to the orders passed by this Court on the

issue of custody from time to time and other factual aspects as well as

legal submissions, we may note here that now the appeals are being

1 2017 SCC Online SC 1073

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confined to the three issues which are set out in the document marked

as ‘C-2’ which is reproduced above.

10 Now, we may make a reference to the various orders passed

by this Court and the Apex Court dealing with the issue of custody of

the children. Civil Application No.189 of 2009 in the Appeal preferred

by the husband came up before a Division Bench of this Court on 29 th

September, 2015. We may note here that a Petition filed by the wife for

the guardianship of the daughter is pending. We are not dealing with

the merits of the said proceedings. Paragraphs 21, 22 and 23 of the

order dated 29th September, 2015 read thus :-

“21.Taking into consideration these peculiar
circumstances, we have come to the conclusion that
it would not be advisable to keep Smyank any
longer in Mumbai against his wishes. During the
course of interview, we found that, at times, he was
locked in a room, though this allegations is
vehemently denied by the Respondent/wife. It did
appear to us that the child was being kept in
Mumbai against his wishes.

22. We are aware that Smyank, at the moment, is taking
education in one of the best schools in Mumbai and that
his academic record is very good and that in the past he
had not behaved in the manner in which he had
behaved recently in the last two/three weeks. However,
the fact remains that if this is a state of mind of the
child which is adolescent and is neither a child nor an
adult, it is possible that it may affect him in one way or
other which may result in child taking some drastic
steps. Under these circumstances, keeping in mind
the present condition of the child, we are of the view
that he may be permitted to go to Sweden alongwith
his father, subject to the following conditions being

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imposed:-

(i) The Applicant/husband shall take his wife to the School
where the admission is to be given to Smyank and he
will ensure that if admission is granted he will continue
to take education in that School and provide all
facilities and pay school fees and incur all expenditure
for that purpose.

(ii) Secondly, within four weeks, if the admission is not
obtained, the Applicant/husband would send the child
back alongwith his mother so that he can continue to
take education in Mumbai. In such an eventuality, we
request the School Authorities at Mumbai to condone
his absence.

(iii) We are informed that Diwali Vacations are going to
commence from 08/11/2015 to 18/11/2015. In case
admission is not given to the child in School in Sweden,
the Applicant/husband shall ensure that by 18/11/2015
the child should be returned along with his mother to
Mumbai.

(iv) In the event, the admission is given to the child in any
School in Sweden and after sometime if he feels that he
is not comfortable in Sweden, he may be sent back to
Mumbai and husband shall accompany him and ensure
that his custody is handed over to Respondent/wife.”

(emphasis added)

11 The same order notes that the daughter is suffering from an

ailment known as ‘down syndrom’. The order notes that she is able to

communicate in low voice. Paragraph 24 notes the views expressed by

the daughter when the Division Bench had a dialogue with her.

Paragraph 24 reads thus :-

“24. So far as daughter Natasha is concerned, she is an adult.

Though she is suffering from down syndrome, she is in

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a position to communicate in a low voice. We found
that the child is comfortable with the father. When
she was interviewed in our Chamber. It is not in
dispute that Natasha was in the custody of the
applicant/husband for two years though, according
to the Respondent/wife this was contrary to the
orders passed by the Court. Secondly, it has been
stated in the affidavit of the Applicant/husband that
during her adolescence, the Applicant/husband had
looked after her and had made her self reliant
during her menstruation period. We have noticed
that she is very comfortable with her father and not
comfortable with her mother and when we asked
her the question whether she would like to be with
her mother, she had replied “never ever”.

(emphasis added)

12 Paragraph 29 of the said order reads thus :-

“29. We are informed at this stage that though the custody of
Natasha was continued with the Applicant/husband,
sister of the Respondent/wife has taken away Natasha
from the School and the Counsel for Respondent/wife
was unable to tell us her whereabouts. This is
unfortunate to say the least. When specific orders were
passed that temporary access which was given to the
Applicant/husband was continued by this Court, the
orders passed by this Court could not have been
disobeyed. Be that as it may, custody of Natasha may
be handed over to the Applicant/husband so that he
can take appropriate steps for getting exit visa from
the appropriate authority.”

(emphasis added)

13 As noted in the order dated 8th October, 2015, the order

dated 29th September, 2015 was challenged by the wife before the Apex

Court. Though, the Apex Court did not interfere with the order, a liberty

was granted to the wife to apply for modification. Further order dated

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8th October, 2015 passed by this Court issues the following two

directions :-

“9. We hope that wiser counsel would prevail on the
Respondent/wife and she would comply with the order
passed by this Court. Since the son Smyan has been
admitted in a school in Sweden, necessary formalities,
such as, temporary passport be issued to him by the
Swedish Authority. We direct the Respondent/wife to
handover custody of daughter Natasha to the
Petitioner within twenty four hours.

10. The F.R.R.O. to issue Exist VISA to both son Smyan and
daughter Natasha. The undertaking, which was
directed to be given by the Petitioner, is tendered on
record. The same is taken on record.”

(emphasis added)

14 The order dated 9th October, 2015 notes that as per the

order dated 8th October, 2015, the wife has handed over the custody of

the daughter to the husband.

15 Thereafter, an application for modification being Civil

Application (St) No.28053 of 2015 was filed by the wife on 12 th

October, 2015. By order dated 12th October, 2015, the said application

was rejected. Paragraphs 8 and 9 of the said order read thus :-

“8. In our view, therefore, no case is made out by the
Applicant/wife for modification of the order at this
stage. Appellant/husband has already given an
undertaking to this Court that he has roots in India and
his brother and other family members are residing at
Bangalore. In view of this, it is not necessary to obtain
any other security. However, the undertaking given by
the Appellant/husband that he will bring back the

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children on a day fixed by this Court is accepted. We,
therefore, reject the application for modification of the
order. However, we make it clear that this is a
temporary arrangement and the Appellant/husband
shall bring both the children to India on 23/12/2015 at
3.00 P.M. in this Court and file an affidavit, stating
therein the facilities which are provided to Natasha
alongwith medical certificate of the Hospital from
Sweden where she was examined and produce other
relevant material. Necessary formalities therefore be
completed by FRRO, so that both the children can be
taken to Sweden. Applicant/wife if she is still willing to
travel to Sweden alongwith children, necessary
arrangement would be made by the Appellant/husband
as per undertaking given by him.

9 We are informed that, today, the Applicant/wife is not
in a state of mind to travel to Sweden alongwith the
children. However, in future, if she wants to travel to
Sweden, undertaking given by the Appellant/husband
may be made applicable to her subsequent date on
which she intends to travel to Sweden. Mrs. Manjula
Rao, the learned Counsel for the Appellant/husband
has submitted that undertaking to provide for her
residence and for her air-tickets to travel to Sweden
also would be made applicable to her traveling to
Sweden on subsequent date. She submitted that
whenever the Applicant/wife wishes to travel to
Sweden, applicant may give an intimation to her in
advance so that proper arrangement can be made.
Applicant/wife is directed go with the Counsel for
Appellant/husband for signing the necessary relevant
documents by tomorrow before the Swedish Council.”

16 The order dated 12th October, 2015 was challenged by the

wife by filing Special Leave Petition (C) No.2967 of 2015. In the said

SLP by order dated 15th October, 2015 parties were permitted to

approach a specialist to make a complete assessment of medical

condition of the daughter, her present treatment and prospects

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consequent upon her travel to Sweden and the resultant change of

living environment. Under the same order, no objection of the wife was

recorded to enable the son to travel with his father to Sweden. Under

the order dated 15th October, 2015 it was directed that if the husband

travels to Sweden along with the son, the custody of daughter will

remain with her parental grand-parents with liberty to wife to meet her

every alternate day.

17 The order dated 28th October, 2015 passed by the Apex

Court notes that the direction issued on 15 th October, 2015 to get

assessment of medical condition of the daughter done through a

specialist has not been complied with. Under the said order, the

husband along with son and daughter were permitted to travel to

Sweden on 29th October, 2015 subject to undertaking of the father to

come back to India on 16 th November, 2015 along with the daughter.

The Apex Court directed the examination of the daughter by All India

Institute of Medical Sciences (AIIMS). On that day, the Hon’ble Judges

of the Apex Court interacted with the daughter. After interacting with

the daughter, the Apex Court made the following observation :-

“……………….. Accordingly, in the presence of her
parents, we have interacted with Ms. Natasha. We
are satisfied that M. Natasha can be in the custody
of the father and she can accompany her father for
Sweden, for the present, to continue her studies.”

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18 Ultimately on 18th April, 2016 the wife withdrew the

Special Leave Petition.

19 By order dated 20th April, 2017 this Appeal was specially

assigned to this Bench. Before that on 24th March, 2017 hearing was

conducted through video conferencing on the 4 th Floor of the High

Court Annex Building. The Bench interacted with the wife and husband

(via video conferencing) who was in Sweden. The order passed on that

day records that during the course of hearing through video

conferencing, there was some dialogue between the son and the

mother. The mother could see the daughter. Further video conferencing

hearing was held on 21st April, 2017 when the mother had a dialogue

with the son.

20 The learned Senior Counsel appearing for the wife

submitted that though the husband has no objection for the wife

travelling to Sweden to meet the son, due to various concerns, the wife

is unable to visit Sweden though she is a Swedish National. He

submitted that the husband be directed to send the son to India during

the school vacations so that the mother will be able to enjoy his

company. We must note here that at one stage, during video

conferencing meeting, we had suggested that wife should travel to

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England or to some other country in Europe so that the son can be

taken by the husband at that place to enable the wife to meet him.

However, we find that the son was not willing to travel out of Sweden

for meeting the mother.

21 The learned Senior Counsel appearing for the wife also

made certain submissions on the issue of custody, issue of guardianship

of the daughter by placing reliance on several decisions and other

material. We must note here that when we pointed out to him that

Guardianship Petition filed by the wife is pending and therefore, we do

not wish to touch the issues involved in the said Petition, the learned

Senior Counsel has confined his submissions only to the custody. He

would urge that considering the ailment suffered by the daughter, it is

in the interests of the daughter that she is in the company of mother

rather than father. He submitted that the father may not be able to look

after the interests of the daughter especially considering her health

condition and therefore, it is necessary that the custody is retained with

the mother. He relied upon several decisions laying down the law as

regards approach of the Court in custody matters. He submitted that

the welfare of the daughter lies in allowing her mother to take her care

and therefore, her custody be handed over to mother. He urged that the

wife is entitled to access to meet the son. Therefore, a direction be

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issued to the husband to bring the son to India during his school

vacations.

22 The learned Senior Counsel appearing for the wife invited

our attention to various documents placed on record as regards the

claim of the wife for recovery of the sum of Rs.44,89,000/-. He invited

our attention to various documents on record. He submitted that as per

the Swedish laws it is true that certain amount was paid to the wife for

taking care of the disabled child. He pointed out that certain amounts

were transferred from the bank account of the wife to the account of

the husband. He submitted that the wife has an explanation for each

and every entry in her bank account. He also pointed out the material

on record as regards the salary and income of the husband. He invited

our attention to the cross-examination of the husband made by the

Advocate for the wife. He pointed out that the husband admitted that

he was having account in Skandia Banken bearing No.915006740-5 in

Sweden. He pointed out paragraph 259 of the cross-examination of the

husband wherein he admitted transfer of an amount of 5,00,000 skr

from account of the wife to the Account No.1160354830562. He urged

that there is an entry of transfer of amount of Rs.2,50,000 skr from the

account of the wife to the aforesaid account of the husband. He pointed

out that the respondent erroneously claimed that the account to which

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amount was transferred was not his account which is contrary to the

documentary evidence on record. He also has taken us through the

relevant pleadings and documents on record. He submitted that there is

a documentary evidence to show that amounts of Rs.5,00,000/- and

2,50,000/- skr were transferred from the account of the wife to the

husband’s account. He pointed out that the entries of maintenance

charges in respect of societies/buildings reflected from the account of

the wife are in respect of flat owned by her father and merely because

she may have paid maintenance charges, it cannot be said that she is

the owner of the flats. He submitted that admittedly at all relevant time,

the wife had no income and even today, she does not have income. He

pointed out that even assuming that certain amount was paid to the

wife by Swedish Government for taking care of handicapped child, that

is no ground to deny maintenance to the wife. He pointed out various

parts of the oral evidence of both the husband and wife and urged that

considering very high income of the husband, the wife is entitled to

maintenance so that she can maintain a life style which is similar to the

life style of the husband. He pointed out the reasons given by the Family

Court for denying maintenance to the wife.

23 The learned counsel appearing for the husband has also

taken us through various parts of the pleadings and evidence. She

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submitted that as regards the custody of the daughter, the issue is

virtually concluded by the orders of this Court which were not

interfered with by the Apex Court. She pointed out that even during the

video conferencing hearing held by this Court, the daughter showed

great deal of reluctance to even appear before the video camera. She

would urge that not only that proper care of the daughter is being taken

in Sweden, the daughter is earning in Sweden. She submitted that apart

from the fact that the desire of the daughter is not to live with the

mother in India, there is no possibility of daughter getting any such

employment in India considering her handicap. She stated that in India,

she may not get proper facilities on par with the facilities extended by

the Government of Sweden. She pointed out that the wife continues to

be a citizen of Sweden and therefore, her unwillingness to travel to

Sweden to meet the son cannot be understood at all. She submitted that

the son had made it very clear to her that he is willing to meet her

provided the mother travels to Sweden. She submitted that the husband

does not wish to come in the way of mother meeting the son and in fact

the mother is in touch with the son on telephone.

24 The learned counsel appearing for the husband invited our

attention to cross-examination of the wife which shows that there are

large number of withdrawals made by the wife by using Credit/Debit

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Cards of the husband. Apart from the fact that the statement of her

bank account for the entire period was not produced by the wife, the

statement of account of her account in Karnataka Bank produced by her

shows that there are large number of transactions involving high

amount for which the wife has offered no explanation. She pointed out

that wife received a large amount from the Government of Sweden for

taking care of her own daughter. He submitted that the said amounts

are received by the wife apart from large withdrawals made by her. She

submitted that the entries in the extract of her bank account available

on record will show that wife has a source of income. She submitted

that an adverse inference needs to be drawn against wife for not

producing the relevant documents and for not explaining utilisation of

the amounts which she received from the Swedish Government. She

submitted that wife has not accounted for the said amounts. She relied

upon several statements made by the wife in her cross-examination. Her

submission is that considering her conduct reflected from the evidence

on record, her case cannot be believed at all and deserves to be

discarded. She submitted that only because her husband was employed

abroad, the wife cannot seek maintenance. She would, therefore,

submit that the wife is not entitled to any monetary relief.

25 We have given careful consideration to the submissions.

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The first question before the Court is as regards the prayer for divorce.

We have already reproduced the consent terms taken on record and

marked 'C-1' for identification. From the evidence on record and from

the submissions made across the bar as well as from the interaction

which we had with both the parties at the time of video conferencing

hearing, we are convinced that the marriage between the husband and

wife has completely broken down. They have been separately residing

for a considerably long time. We are satisfied that there is no collusion

between the parties while seeking relief of divorce under Section 13-B

of the said Act.

26 We may note here that though attempts were made to

apply for divorce before the Swedish Court by consent of the parties,

consensus could not have arrived at about the contents of the

application to be made to the Swedish Court.

27 Hence, by accepting undertakings in clauses (2) and (3) of

consent terms marked as 'C-1', the marriage between the parties

deserves to be dissolved by a decree of divorce. We accordingly accept

the undertakings.

28 Now, we are proceeding to deal with the issues which

survive for consideration of the Court which are set out in document

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marked as 'C-2' which we have reproduced above. The first question we

considered is about the custody of the daughter.

29 As noted earlier, the date of birth of the daughter is 19 th

September, 1993. We have already noted that she is suffering from

"down syndrome". We have already made a reference to the orders

passed by a Division Bench of this Court as well as the Apex Court. As

far as the daughter is concerned in paragraph 24 of the order of the

Division Bench dated 29th September, 2015, the observations made after

interviewing the daughter have been noted. In paragraph 24, the

Division Bench has observed thus :-

24. So far as daughter Natasha is concerned, she is an
adult. Though she is suffering from down syndrome,
she is in a position to communicate in a low voice. We
found that the child is comfortable with the father.
When she was interviewed in our Chamber. It is not in
dispute that Natasha was in the custody of the
applicant/husband for two years though, according to
the Respondent/wife this was contrary to the orders
passed by the Court. Secondly, it has been stated in the
affidavit of the Applicant/husband that during her
adolescence, the Applicant/husband had looked after
her and had made her self reliant during her
menstruation period. We have noticed that she is very
comfortable with her father and not comfortable with
her mother and when we asked her the question
whether she would like to be with her mother, she had
replied "never ever".

30 In the same order, the Division Bench has taken a note of

the fact that both son and daughter are attached to each other. In fact

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the Division Bench has noted that it was noticed during the interview

that daughter used to interact and look at her brother for approval. In

fact, the observation of the Division Bench is that if the son is allowed

to go to Sweden along with father and the daughter is kept in Mumbai,

it will have consequential adverse effects on her psychology. It is as per

this order that the custody of the minor daughter was ordered to be

handed over to the father. We have already made a reference to the

orders of the Apex Court. Under the order dated 28 th October, 2015 the

Apex Court permitted the father to take daughter subject to the

condition of bringing her back. Further order dated 18 th November,

2015 is already quoted earlier wherein the Apex Court recorded

satisfaction after interacting with the daughter that she can be in the

custody of the father and she can accompany her father to Sweden to

continue her studies. Thus, from October or November, 2015 the

daughter is continuously living with father in Sweden. As noted earlier,

the daughter studied in Sweden and now some kind of work is provided

to her and she continues to earn. We could notice during video

conferencing meeting that the daughter was not comfortable when the

mother was talking to her.

31 Therefore, it is impossible now at this stage to disturb the

custody of the father. It appears to us that the daughter is not interested

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in interacting with the mother. Considering the entire background, we

are of the view that it may not be in the interest and welfare of the

daughter that her custody is disturbed or that she is forced to meet her

mother.

32 As regards visitation rights to meet the son, during video

conferencing meetings, the son was very categorical that he had no

objection for meeting his mother provided she comes to Sweden.

Though the mother is a Swedish National, there is no plausible

explanation forthcoming as to why she is not willing to go to Sweden.

Even the husband has no objection if the wife meets the son in Sweden.

Considering the fact that the daughter is very much attached to the son

and considering the observation of the Division Bench that if the

daughter is deprived of company of her brother it will affect her

psychology, it will not be appropriate if we pass an order directing the

father to bring the son to Mumbai to enable the mother to meet.

33 There is one more aspect which must be noted. The aspect

is that the date of birth of the son is 9th February, 2001. In February,

2018 he will complete 17 years of age. He is taking education in

Sweden. We must note here that in one of the video conferencing

meetings even the learned counsel for the husband spoke to the son and

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tried to persuade him to meet his mother outside Sweden but the son

was very firm. Therefore, we do not deem it appropriate to issue a

direction to the father to bring the son to Mumbai to enable the mother

to meet him. However if the son comes to Mumbai, the husband will

have to give prior intimation of the visit of the son to the wife. During

such visits, the wife will be entitled to meet the son. She will be

entitled to continue her conversation with the son on telephone and via

video conferencing. It will be open for her to visit Sweden with prior

intimation to the husband for the purposes of meeting the son.

34 Now we come to the issue of grant of monetary relief. The

evidence on the issues of entitlement of the wife to maintenance and to

the amount of Rs.44,89,500/- will have to be considered. The evidence

is interlinked and therefore, we are considering both the issues together.

Firstly, it will be necessary to make a reference to the pleadings. The

marriage was solemnized on 25 th June, 1989 and in the same year, the

husband left for Sweden. In November, 1989 the wife went to Sweden

and started cohabiting with the husband. Thereafter, the parties were

for some time in Australia. The parties lastly cohabited together in

Sweden. In the plaint, the wife has averred that in the beginning, her

husband's take home pay was 10,333 skr equivalent to Rs.58,928/-. In

paragraph 15 of the Petition, the wife has stated that the take home

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salary increased to 15000 skr equivalent to Rs.85,500/-. This was in the

year 1992.

35 In paragraph 19 of her Petition, she has stated that as the

daughter was handicapped, for looking after her, the Swedish

Government was paying basic salary of 6000 skr per month equivalent

to Rs.34,200/- to the wife as she was staying home and taking care of

the daughter. It is stated that this amount was directly transferred to her

account in Sweden. It is her case that after spending the necessary

amount, a part which was not spent became her savings. As stated

earlier, the husband moved to Australia. Thereafter, he came back to

Sweden. In the meanwhile, for some time, the parties were in India as

the husband had an employment in India. In paragraph 40 of the

Petition there is an allegation that the husband while in Australia was

earning 3,00,000 AUD equivalent to Rs.99,00,000 per annum.

36 As regards her claim of Rs.42,75,000/-, paragraph 42

contains material averments which reads thus :

"42. As mentioned earlier when the parties had moved to
Australia in 1999 the Petitioner used to put aside 50
AUD in a box in her kitchen. She did this for two and
half years till the parties moved to Sweden in 2002. The
saving for two and half year had amounted to around

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6500 AUD i.e. Rs.2,14,500/- (Rupees Two Lacs fourteen
thousand five hundred only). When the parties were to
shift back to Australia in 2002 they closed all their
accounts in Sweden. All the money that was in the
Petitioner's Swedish account, about 750,000 skr i.e.
Rs.42,75,000/- (Rupees forty two lacs seventy five
thousand only). This was the Petitioner's saving from
the money she got from the Swedish government as she
was taking care of Natasha who was handicapped. This
money was transferred into Respondent's account for
easy and convenient transfer to Australia where the
parties intended to buy a house and settle down. On
account of delay in getting the visa to Australia the
Petitioner got to Australia much after the cargo had
arrived. Consequently this time round settling down
into a new house was left to Respondent. The
Respondent while arranging the house found the
Petitioner money in the kitchen box and 'confiscated' on
the alleged ground that it was 'his' money. He refused to
return the money to her later. He also refused to
transfer the money the 750,000 skr Rs.42,75,000/-
(Rupees forty two lacs seventy five thousand only) that
was originally in the Petitioner's account back into an
account in the Petitioner's name. This was inspite of his
tax consultant telling him that if he didn't he would lose
as much as about 17-18000 A $ a year as extra tax. He
told the Petitioner that he did not trust her and also said
that she would run away with his money. The Petitioner
is entitled to the amount 750,000 skr i.e. Rs.42,75,000

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(Rupees Forty two lacs seventy five thousand only) and
6500 AUD i.e. Rs.2,14,500/- (Rupees two lacs forty
thousand five hundred only) That is a total of
Rs.44,89,500/- (Rupees forty four lacs eighty nine
thousand five hundred only) which belongs to her
exclusively."

37 Finally in paragraph 63, it is alleged on the date of filing of

the Petition, the income of the husband was 3,00,000 AUD per year.

38 In the written statement filed by the husband, in response

to paragraph 10 of the Petition, he has accepted that his take home

salary was initially 10,333 skr. The material averments in paragraph 41

quoted above are dealt with by the husband in paragraph 52 of the

written statement. The husband has dealt with paragraph 42 of the

Petition in paragraph 53 of his written statement. He has reproduced

the scheme of payment of child care allowance. He has stated that child

care allowance is paid to the parents till the child attains the age of 19

years and thereafter, the amount is credited directly to the account of

the child. He has stated that there are no monies, savings or otherwise

of the wife which are lying with him.

39 In paragraph 71 of his written statement, the husband has

stated that the wife has fraudulently taken an amount of Rs.25,000 AUD

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from his bank account. He prayed that the same may be returned to

him.

40 Now we turn to the evidence on record. The wife examined

herself by filing her affidavit-in-lieu of examination-in-chief. In

paragraph 55, she stated that she had saved the money which she has

got from Swedish Government for looking after her daughter and the

said amount of Rs.750,000 skr was in her bank account. She stated that

while they were proceeding to Australia, the said amount was

transferred to the account of the husband for facilitating easy transfer of

the amount. She stated that while in Australia, she used to save 50 AUD

a week and used to keep the said amount in a box kept in kitchen. She

stated that she had collected about 6500 AUD by February, 2003. She

stated that the said amount was taken away by her husband. She has

stated that when her husband joined Infosys, he was getting monthly

salary of 13972 AUD and that he had a bank balance of 3,78,000 AUD

in February, 2004. In paragraph 67, the wife stated that she had

undertaken to produce bank statements of her Karnataka Bank Account

from the year 2000 till the date. We must note here that the criticism

offered by the counsel for the husband was that the account statement

for the entire period (before 21st September, 2001) was not produced by

the wife.

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41 In her cross-examination, she accepted that she had ATM

Card through which she had an access to the husband's account. She

denied the correctness of the suggestion that she withdrew a sum of

Rs.2,14,500/- from bank account of her husband. She admitted that she

has not annexed any document to the Petition showing that her amount

equivalent to Rs.42,70,000/- was transferred to the husband's account.

She denied the correctness of the suggestion that she withdrew various

amounts between 21st January, 2004 to 27th January, 2004 from her

husband's account. However, she admitted that she was withdrawing

money from the said bank account of her husband by using ATM Card.

She accepted that the ATM Card was cancelled on 27 th or 29th January,

2004. In paragraph 78 of her deposition it is recorded that as

undertaken by her, she has produced statements of her Account in

Karnataka Bank from 21st September, 2001 to 28th March, 2006.

42 She was questioned on the entries in her bank account in

Karnataka Bank and especially entries made of transfer of various

amounts to Dignity Flat Owners and to Sukhmani Flat Housing Society.

She stated that the flat in Dignity Apartment belongs to her father. She

claimed that she does not have any interest in Sukhmani Co-operative

Housing Society situated near Airoli in Navi Mumbai. Her attention was

invited to various cash deposits shown in her Karnataka Bank Account.

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In paragraph 84, she has stated thus :-

"84. True to say that there is a cash deposit of Rs.20,000/- on
13.8.2003. On 29.4.2004 there is a cash deposit of
Rs.30,000/-. On 23.12.2004 there are two cheques of
Rs.4 lacs. On 11.1.2005 there are four deposits by
cheque of Rs.4,75,000/-, Rs.3,25,000/-, Rs.1,50,000/-
and Rs.1,50,000/-. On 28.2.2005 there is a deposit in
cash Rs.1,30,000/-. It is correct to say that as on
28.2.2005 there were 23,90,025/- in my bank account.
On 28.2.2005 three Demand Drafts were taken from the
account. Two demand Drafts of Rs.11,27,500/- and one
D.D. is of Rs.1,24,430/- were drawn on Karnataka Bank
Ltd. and not on my name. Not True to say that these
D.D.s were given to Karnataka bank for repayment of
loan. I am not the only person who can operate this
account. It is held jointly with my father. On 3.5.2005,
28.5.2005 two cheques are issued to Dignity flat owners
amount in to Rs.4,090/- and Rs.21,260/- from this
account. True to say that on 13.7.2005 amount of
Rs.1,50,000/- is deposited in the account. True to say
that on 19.7.2005 I have issued a cheque Rs.1,08,000/-
to Dignity flat owners. On 14.10.2005 cheque of
Rs.4090/- on 6.12.2005 cheque of Rs.3468/-. On
3.3.2006 cheque of Rs.4090/- they are issued to Dignity
flat owners. True to say that on 28.2.2005 two cheques
of 2 lacs each was deposited in this account. True to say
that on 10.1.2006, 10.2.2006 and 10.3.2006 there is a
deposit of Rs.25,000/- each. True to say that in my
affidavit of evidence filed on 19.1.2006 I had not stated

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that I had aforesaid amounts deposited in my bank
account."

43 We must note here that nothing is placed on record to show

that the said bank account in Karnataka Bank was jointly held by her

with her father. The extract of account does not mention the name of

her father. She stated that after 21 st July, 2005 there was no cash

deposit in her account. She accepted that she has not produced a copy

of statement of her Bank account in Sweden. In paragraph 86, there is a

cross-examination about the amounts withdrawn by her through ATM in

Australia between 26th February, 2003 to 17th December, 2003. She

again claimed in the cross-examination that in 2000-2001, amount of

7,50,000 skr were transferred from her bank account to her husband's

account. In paragraph 101 of the cross-examination, she stated that the

amounts withdrawn by her in Mumbai were not sufficient to start her

life in Mumbai.

44 Now turning to the evidence of the husband, he accepted

that he has sold his house in Stockholm and earned profits after paying

30% taxes. In paragraph 155 of his affidavit-in-lieu of examination-in-

chief he reiterated that wife has withdrawn 25,000 AUD from his

account fraudulently. In paragraph 168, the husband stated that the

wife is an qualified Architect who has a working experience of four

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years before the marriage and she will be able to secure a suitable job.

He stated that in his affidavit-in-lieu of examination-in-chief that no

amount has been transferred to his account from the wife's account. He

stated that in August, 2004 he joined Infosys on the base salary of

Rs.54,000/- p.m. He stated that on an average, his take home salary

would be around Rs.70,000 - 80,000 since August, 2004. He admitted

that he has not produced any document relating to his salary. Later on

he stated that he was employed with Infosys since October, 2002. He

accepted that in the year 2002, when he joined Infosys, he was at

Stockholm. He pointed out that for work, he travelled to different

countries such as Malaysia, Thailand, Philippines, Singapore, etc. He

stated in the cross-examination that from June, 2003 to November,

2003 a sum of 11,000 AUD was withdrawn by the wife. He relied upon

documents produced by the wife in Australian Court for stating this

factual aspect. He, however, admitted that he has not produced the said

documents before the Court. In paragraph 239, he accepted that till 25 th

December, 2003 his wife did not take up any employment.

45 Now, turning to the case made out by the wife as regards

transfer of amount from her bank account to the bank account of the

husband, it will be necessary to make a reference to the compilation of

documents on record. English translation of the letter dated 4 th May,

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2006 addressed to the wife by Skandia Banken at Exhibit - 214 records

that from her bank account amounts of 5,00,000 skr and 2,50,000 skr

were transferred to Bank Account No.1160354830562 (the "said

Account"). In paragraph 259 of the cross-examination, the husband

stated that the said account was not his account. Exhibit - 216 is a

certificate recording that the husband was not the owner of the said

account.

46 We find that there is absolutely no evidence on record to

show that the amounts of 5,00,000 skr and 2,50,000 skr were

transferred to the bank account of the husband. In fact, the said account

is not the account of the husband. Therefore, the wife has failed to

substantiate the claim for refund of a sum of Rs.44,89,000/-.

47 Now turning to the issue of maintenance, as stated earlier,

the husband has admitted that the wife was not employed after their

marriage.

48 As far as the maintenance is concerned, it is necessary to

make a reference to the decision of the Apex Court in the case of

Manish Jain Vs. Akanksha Jain2. In paragraph 15, the Apex Court had

held thus :-

 2 2017 SCC OnLine SC 314

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"15. An order for maintenance pendente lite or for costs of
the proceedings is conditional on the circumstance that
the wife or husband who makes a claim for the same
has no independent income sufficient for her or his
support or to meet the necessary expenses of the
proceedings. It is no answer to a claim of maintenance
that the wife is educated and could support herself.
Likewise, the financial position of the wife's parents is
also immaterial. The Court must take into consideration
the status of the parties and the capacity of the spouse
to pay maintenance and whether the applicant has any
independent income sufficient for her or his support.
Maintenance is always dependent upon factual
situation; the Court should, therefore, mould the claim
for maintenance determining the quantum based on
various factors brought before the Court."

(underline supplied)

49 The law laid down by the Apex Court for fixing

maintenance pendente lite will also apply for considering the prayer for

permanent alimony under Section 25 of the said Act.

50 Merely because the wife is an Architect, per se, this fact will

not make her dis-entitled to seek maintenance. In fact, the husband has

accepted that the wife was not employed. It is true that the wife

received about 6000 skr per month from the Swedish Government as

remuneration for looking after the daughter. The husband was working.

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Therefore, the wife was at home and was looking after the children

including the daughter. Therefore, receipt of the amount from Swedish

Government is strictly no ground to deny maintenance. The evidence on

record shows that in the year 2002, monthly salary of the husband was

about Rs.54,000/- per month. When the Petition was filed his salary

was allegedly 300,000 AUD.

51 Admittedly, after 2004 the wife has not withdrawn any

amount from the bank account of her husband as ATM Card was

cancelled. We have perused the extract of accounts of the wife with

Karnataka Bank. It is true that the statement of account produced is for

the period 21st September, 2001 to 28th March, 2006. The earlier

account was not produced by the wife. Perusal of the account shows

that there are large number of credit/deposit entries in the Bank

Account of Karnataka Bank.

                         Date                   Amount
13th July, 2005 1,50,000
11th January, 2005 4,75,000
11th January, 2005 3,25,000
11th January, 2005 1,50,000
11th January, 2005 1,50,000
28th February, 2005 2,00,000
28th February, 2005 2,00,000
28th February, 2005 1,30,000

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52 On 23rd December, 2004 there are two credit entries in the

sum of Rs.4 Lakhs in the said account. There is no satisfactory

explanation by the wife as to how she kept on receiving large amounts

till 28th February, 2005. Some of the said amounts were transferred by

her by Demand Drafts.

53 The last credit entries of large amounts are of 28 th February,

2005. There is no explanation for these credit entries. Therefore, wife

cannot be granted maintenance till 28th February, 2005 as there are

unexplained credit entries of large amounts in her Bank account.

Thereafter, there are no entries of the large amounts. There is no

material on record to show that the wife received any income from 1 st

March, 2005. There is no evidence brought on record to show that the

petitioner is the owner of the flats in Dignity Apartment or Sukhmani

Co-operative Housing Society. Therefore, we propose to grant

maintenance to the wife from 1st March, 2005. Moreover, it is not the

case of the husband that his income has been reduced.

54 Now the other question is what should be the quantum.

From the cross-examination of the husband, it can be easily inferred

that in the year 2005 he was receiving salary of Rs.70,000/- to 80,000/-

per month. Thereafter, his income must have gradually increased.

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55 The husband had responsibility of maintaining family of

four including the female child suffering from down syndrome.

Considering these aspects, we propose to fix the monthly maintenance

payable to the wife at Rs.25,000/- per month from 1 st March, 2005.

After expiry of the period of 5 years, the maintenance will have to be

increased by Rs.5,000/-. Therefore, from 1st March, 2010 to 28th

February, 2015 she will be entitled to maintenance at the rate of

Rs.30,000/- and from 1st March, 2015, she will be entitled to

maintenance at the rate of Rs.35,000/-.

56 As regards the allegation of the husband about the wife

withdrawing money from his bank account, there is absolutely no

evidence adduced by the husband.

57 Perusal of the judgment of the Family Court shows that the

only reason given by the Family Court for denying the maintenance to

the wife is that the bank statements produced by her show that she has

sufficient balance. This reason cannot be sustained when the wife

admittedly does not have regular source of income at least from 1 st

March, 2005.

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58 Accordingly, we dispose of the Appeals by passing the

following order :-

ORDER

(i) The wife shall carry out formal amendment to the

Petition for converting the same into a Petition under

Section 13B of the Hindu Marriage Act, 1955 within

four weeks from today. The Registry shall permit her to

do so;

(ii) The marriage solemnized between the parties on 25 th

June, 1989 is hereby dissolved by a decree of divorce

under Section 13-B of the Hindu Marriage Act, 1955;

(iii) Undertakings of the parties in paragraphs 2 and 3 of

the consent terms marked as 'C-1' are accepted;

(iv) The prayer of the wife for grant of custody of the

daughter is rejected;

(v) It will be open for the wife to communicate with her

son by telephone or via video conferencing after fixing

the time as per mutual convenience. It will be open for

the wife to visit Sweden for the purposes of meeting the

son. Necessary arrangement shall be worked out by the

husband and wife with consensus. If consensus cannot

be arrived at, it will be open for the parties to approach

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the Family Court for seeking necessary directions on

this aspect;

(vi) Whenever the son comes to India, it will be open for

the wife to meet him. Arrangements for meeting the

son in India shall be worked out by mutual consent. In

case of dispute, the parties are free to approach the

Family Court for seeking necessary directions;

(vii) The husband is ordered and decreed to pay wife

alimony of Rs.25,000/- per month from 1st March, 2005

till the end of February, 2010. From 1 st March, 2010 he

is ordered and decreed to pay alimony at the rate of

Rs.30,000/- per month till the end of February, 2015.

From 1st March, 2015 the husband is ordered and

decreed to pay alimony at the rate of Rs.35,000/- per

month;

(viii)We grant time of one year from today to the husband to

pay arrears of maintenance upto 31 st October, 2017. If

any interim maintenance is paid by him, he will be

entitled to adjustment;

(ix) From November, 2017 onwards, the husband shall

transfer the monthly maintenance at the rate of

Rs.35,000/- per month directly to the bank account of

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the wife on or before 15th day of every month. The wife

shall furnish her account details under her signature to

the Advocate for the husband within a period of four

weeks from today;

(x) Even the amount of arrears shall be paid by the

husband to the wife by direct transfer to her account;

(xi) The prayer for passing a money decree in the sum of

Rs.44,89,000/- with interest made by the wife is

rejected;

(xii) Considering the order of payment of maintenance

which we have passed, we hold that it is not necessary

to pass a separate order as to cost of litigation;

(xiii)The impugned judgment and decree of the Family

Court is modified on above terms. Both the Appeals are

disposed of on above terms;

(xiv) All pending Civil Applications do not survive and the

same are disposed of.

(SMT. ANUJA PRABHUDESSAI, J ) (A.S. OKA, J )

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