Tilak 1/14 WP-13144-17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.13144 OF 2017
Swati Vedant Jatia .. Petitioner
Versus
Vedant Vijay Jatia .. Respondent
…
Ms.Taubon F. Irani for the petitioner.
Mrs.Mrunalini Deshmukh with Mr.Sanjog Parab and Mr.Akshay
Patil i/b Vikrant D. Shetty for the respondent.
CORAM: SMT.BHARATI H. DANGRE, J
RESERVED : 28th MARCH 2018
PRONOUNCED : 20th APRIL 2018
JUDGMENT :-
1 The present Writ Petition is filed by the petitioner,
challenging the order dated 11th September 2017 passed by the
Family Court No.4, Mumbai, thereby partly allowing the
application filed by the petitioner seeking maintenance for herself
and for her two children. The petitioner is aggrieved by the said
order since she is awarded an amount of Rs.25,000/- per month
and an amount of Rs.25,000/- each has been awarded to her two
children, and according to the petitioner, the said amount is not
befitting the status of the parties. According to the petitioner, the
::: Uploaded on – 02/05/2018 03/05/2018 23:30:39 :::
Tilak 2/14 WP-13144-17
Judge, Family Court has erred in granting the said amount without
taking into consideration the earnings of the husband, the
requirement of the wife and children and specifically considering
the status of the parties.
2 In order to appreciate the challenge raised in the
petition, it would be necessary to briefly deal with the facts
leading to the filing of present petition.
The marriage between the petitioner and respondent
was solemnized on 4th July 2006 at Mumbai. The petitioner
alleges that the respondent husband indulged himself into acts of
Adultery and inflicted cruel treatment to the wife. According to
the petitioner, after the marriage, they resided in their matrimonial
home which was located on 39th and 40th floor of Belvedere Court,
Mahalaxmi, Mumbai. On 8th July 2007, the child ‘Gayatri’ was
born, whereas on 19th August 2008, the petitioner gave birth to the
second child ‘Vir’. It is the specific case of the petitioner that she
and her children were subjected to physical and psychological
cruelty by respondent and his parents, and according to the
petitioner, there was a constant demand of dowry from his family,
resulting into filing of a complaint by the petitioner against the
respondent and his family at Agripada Police Station in Mumbai
::: Uploaded on – 02/05/2018 03/05/2018 23:30:39 :::
Tilak 3/14 WP-13144-17
on 1st May 2013.
The respondent filed a petition in the Family Court in
Bandra for the custody of minor children. However, according to
the petitioner, though the petition was filed in the year 2013 when
the husband and wife were residing in the same house, the copy of
the petition came to be served upon the petitioner only after a
period of one year. The petitioner has narrated in detail of the
treatment meted out to her and her children and would allege
cruelty in all forms. The petitioner has instituted proceedings
under Section 12, 18, 19, 20, 22 and 23 of the Protection of
Women from Domestic Violence Act, 2005 in the Family Court at
Bandra, Mumbai, by filing a Miscellaneous Application in Petition
No.D-44 of 2013 filed by the respondent husband seeking custody
of the children. It is the case of the petitioner that she had moved
an application seeking an alternate accommodation for herself and
her children in view of the cruelty inflicted upon her and the
Family Court was pleased to allow the said application and had
directed the respondent to provide alternate accommodation to
the petitioner and the children for their residence, to be of similar
standard of the present flat in the same vicinity. According to the
petitioner, this order has not been complied by the respondent.
::: Uploaded on – 02/05/2018 03/05/2018 23:30:39 :::
Tilak 4/14 WP-13144-17
3 On an application filed by the petitioner below
Exhibit-108, seeking interim maintenance for herself and her
children, the Family Court has passed an interim order. By the
application, the petitioner claimed maintenance of Rs.5,00,000/-
(Rupees Five lakhs) for herself and Rs.1,50,000/- (Rupees One
lakh Fifty thousand) for every child i.e. total amount of
Rs.8,00,000/- (Rupees Eight Lakhs) was claimed by her by way of
monthly maintenance. As against this, the Family Court has
granted maintenance of Rs.75,000/- in total to the petitioner and
her children and it is this order which is assailed by the petitioner.
4 Learned counsel Ms.Taubon Irani representing the
petitioner would submit that the petitioner has been subjected to
Domestic Violence, and in the petition filed by her, she has
narrated the details about the same. According to the petitioner,
she was practically made to stay away from her matrimonial home
and the children were made to stay in clubs and hotels and later
on, she shifted to Lodha Bellissimo. Ms.Irani would submit that on
an application, seeking access filed by the husband, on 27 th May
2016, the Family Court had granted vacation access to the father,
but the father sought assistance of the police for procuring the
::: Uploaded on – 02/05/2018 03/05/2018 23:30:39 :::
Tilak 5/14 WP-13144-17
custody of the minor children. Ms.Irani would invite the attention
of the Court to the various instances narrated in the application
filed by her in the proceedings instituted under the Domestic
Violence Act and would submit that the respondent husband has
flouted the order passed by the Family Court, directing him to
provide alternate accommodation of the same standard of the
present flat in a similar vicinity. Ms.Irani would submit that the
parties belong to a higher strata of society and she has
demonstrated the high standard of living of the parties from the
application, and would submit that in this backdrop, she had
claimed maintenance to the tune of Rs.8 lakhs from the husband
in order to enable her and her children to maintain the same
standard of life which they were leading. Ms.Irani would submit
that the Family Court has erred in granting a paltry sum of
Rs.75,000/- as an amount of maintenance, which is not befitting
the standard which the parties are used to, and she therefore prays
for quashing and setting aside of the said order.
Per contra, Mrs.Mrunalini Deshmukh appearing for
the respondent would submit that the Court would be required to
examine whether a case has been made out for Domestic Violence
which would permit the wife to claim the interim maintenance by
::: Uploaded on – 02/05/2018 03/05/2018 23:30:39 :::
Tilak 6/14 WP-13144-17
invoking the provisions under the said enactment. The learned
counsel invited the attention of the Court to the reply filed by the
petitioner and where certain allegations about the conduct of the
petitioner. She would submit that the husband was required to file
a petition under Guardians and Wards Act, 1890 in order to seek
custody of the children, and though an order of interim access was
granted, the petitioner has made every attempt to make the order
unworkable. As far as the status of the parties is concerned,
Mrs.Deshmukh would submit that the respondent husband is a
Director in a Company along with the other members of the Family
and it is the joint family business. She would submit that the flat
in which the parties were residing was in the name of the
Company and he is getting a fixed salary from the Company. As
regards the allegation that the husband has instituted proceedings
while they were residing under the same roof, it is submitted by
the learned counsel that though the proceedings were instituted by
the husband, on account of the ill-treatment meted out to him in
the capacity as a husband, the mediators were being involved and
the discord was being attempted to be settled and therefore, the
copy of the petition was not served upon the petitioner.
::: Uploaded on – 02/05/2018 03/05/2018 23:30:39 :::
Tilak 7/14 WP-13144-17
Mrs.Deshmukh would also submit that in pursuance
of the order passed by the Family Court on 4 th September 2015,
directing the husband to provide alternate accommodation to the
petitioner and their children for their residence of a similar
standard of the present flat in the vicinity, she would take this
Court through the various e-mail exchanged between the counsel
for the parties. She would submit that by an e-mail dated 10 th
September 2015 addressed to the counsel for the petitioner, the
respondent had given the details of the flats having similar
standard of the present flat (Lodha Bellissimo) in the same vicinity
of Mahalaxmi). It is submitted that by the said e-mail, a request is
made to the petitioner to set up a date and time mutually
convenient to enable the broker to show the places as suggested.
The said e-mail then sets out the details of the flat along with its
location which is reflected as follows :-
Building Location Floor Bedrooms Area Property
Details
Lodha Mahalaxmi 30th 2BHK 1300 Semi furnished,
Primero bu harbour facing,
2 car parks
Lodha Mahalaxmi 45th 2 BHK 1300 Semi furnished,
Primero bu harbour facing,
2 car parks
Lodha Mahalaxmi 35th 3 BHK 1800 Semi furnished,
Primero bu 2 car parks
::: Uploaded on – 02/05/2018 03/05/2018 23:30:39 :::
Tilak 8/14 WP-13144-17
She would further submit that in response to the said
communication, the wife has responded by stating that an
alternate accommodation shall be made available which should be
approximately of 3100 sqft 4 BHK with similar standard clubs and
other facilities. In the e-mails exchanged, it is stated that the
current rate of accommodation is Rs.2.88 lakhs approximately per
month, and if an alternate accommodation is not being arranged
for, then the said amount should be paid to the wife.
Mrs.Mrunalini Deshmukh would also invite my attention to the
order passed by the Family Court in execution proceedings
instituted by the wife vide Petition No.RD 429 of 2015 which is a
Darkhast Petition filed for recovery of Rs.9,90,000/- (Rupees Nine
lakhs Ninety thousand) from the judgment debtor in pursuance of
order dated 4th September 2015. She would submit that the said
Darkhast came to be rejected by an observation that the order was
to provide alternate accommodation by the respondent for their
residence of similar standard, but no where the amount of rent is
awarded to the petitioner as alternate prayer and the executing
court would not go beyond the judgment and decree. She would
submit that all the attempts to provide alternate residential
accommodation were refused by the petitioner wife by declining to
::: Uploaded on – 02/05/2018 03/05/2018 23:30:39 :::
Tilak 9/14 WP-13144-17
accept the said accommodation on the ground that they are not
similar to the standard of the flat in which they were residing.
5 On perusal of the record placed before the Court,
including the compilations filed by the parties and on hearing the
learned counsel for the respective parties, the question to be
decided is whether an amount of maintenance awarded by the
Family Court is just and proper in the peculiar facts and
circumstances of the case.
6 The application seeking maintenance filed by the
petitioner wife gives the details of the standard of living of the
parties. It is alleged by her that the respondent is running a family
business in the name of Modern India Limited and he is the owner
of immovable property at Modern Mill Compound, Modern
Centre, Mahalaxmi, Mumbai, and residential flats at 38, 39 th and
40th floors of Belvedere Court Mahalaxmi. It is the specific
contention of the petitioner wife that she was subjected to cruelty
and was abused physically and verbally along with her children.
In an application filed under Section 12 of the Domestic Violence
Act, she prayed for multiple reliefs, including the relief of
maintenance of Rs.8,00,000/- (Rupees Eight lakhs) for herself
and her children, and also prayed that the husband be made liable
::: Uploaded on – 02/05/2018 03/05/2018 23:30:39 :::
Tilak 10/14 WP-13144-17
to pay the school fees of the children and bear all their educational
expenses.
It is no doubt true that the parties have levelled
reckless allegation against one another and the issue of access of
the children have been mutually settled between the parties in the
three writ petitions filed before this Court and this Court, by an
order dated 28th March 2018 was pleased to dispose of the said
three writ petitions.
7 The claim of maintenance by the petitioner wife is
based on the allegation that she was subjected to cruelty and the
respondent had intimidated her and had left her without any
home, which left her with no option than to relocate herself to a
rental accommodation. According to her, she and her children are
literally left to the mercy of her relatives and it is the moral
responsibility of the husband to take care of the wife. However, on
perusal of the exchange of e-mails between the parties, it can be
seen that pursuant to the order passed by the Family Court on 4 th
September 2015, directing the husband to provide an alternate
accommodation, the husband had communicated to the wife about
the alternate residential accommodation in the same area. Perusal
of the said alternate accommodation would reveal that the flats
::: Uploaded on – 02/05/2018 03/05/2018 23:30:39 :::
Tilak 11/14 WP-13144-17
which were offered to the petitioner wife are in the “Lodha
Primero” and the location is Mahalaxmi. The two options offered
are of 2 BHK, whereas one option is 3 BHK flat which is semi
furnished with two car parkings. The brochure of the building
“Lodha Primero” reflect that the said building premises have the
amenities like Gymnasium, full size swimming pool, play area for
children and club facilities as well as recreation sports and skill
building activities. The petitioner wife, however, refused to accept
the said apartment as an alternative accommodation on the
ground that it do not meet the same standard where she was
residing. During the course of hearing of the matter, the learned
counsel for the respondent husband has tendered on record a list
of similar flats available, and had asked the petitioner to exercise
her choice about the said flats. The respondent husband
categorically made a statement that he intends to honour the
order passed by the Court and he has no intention to leave the
wife and the children in a destitute condition, and he would
submit that the wife is at liberty to chose the flats which have been
offered with the assistance of the broker in the similar locality.
However, the respondent has specifically denied the contention of
the petitioner wife that the earlier residence in which they were
residing is a flat of 20,000 sq.ft.
::: Uploaded on – 02/05/2018 03/05/2018 23:30:39 :::
Tilak 12/14 WP-13144-17
8 In any contingency, the wife is entitled for a flat to be
chosen as a residential accommodation which is of the same
standard. Same standard do not mean the standard by metes and
bounds, but it means the flat in a good residential locality and
preferably Mahalaxmi area since the matrimonial house was in the
said locality with all the amenities and facilities which the modern
flat scheme in Mumbai provide for, and it should be sufficient
enough to accommodate the mother and her two children and
permit them to continue them to lead the same life style which
they were earlier living. The offers made by the respondent
husband therefore, needs to be looked into by the petitioner wife
and it is open to the petitioner to chose one of the said flats, and
the husband is directed to make available the flat in Mahalaxmi
area with minimum 3 BHK with all the amenities. The respondent
is directed to provide such an accommodation to the petitioner
forthwith in compliance of the directions issued by the Family
Court on 4th September 2015, and the petitioner is directed to
accede to such an accommodation, and failure to do so, would not
make the husband liable for breach of the order passed by the
Family Court directing him to provide an alternate
accommodation.
::: Uploaded on – 02/05/2018 03/05/2018 23:30:39 :::
Tilak 13/14 WP-13144-179 As far as the amount of maintenance is concerned,
though the petitioner had claimed an exorbitant amount, no
evidence has been placed on record as to the earning capacity of
the husband or the needs of the wife, except making a bald
statement that the Family was living a luxurious life. In any
contingency, the amount of maintenance to be awarded is a matter
of evidence and the Family Court by taking into consideration the
status of the parties, have directed the respondent to pay an
amount of Rs.75,000/- towards the wife and the two children by
taking into consideration their economical status and standard of
living. The Court has rightly observed that the issue of
maintenance as well as other reliefs sought under the Protection
of Women from Domestic Violence Act, is to be decided on merit
after leading evidence by both the parties and the parties would
avail opportunities to file their respective documents about
economical status. However, the provision for interim
maintenance prompted the Court to fix the amount of Rs.75,000/-
per month and it cannot be said that the said order is, in any way,
perverse or illegal. The Court has rightly observed that the said
amount would be just and sufficient for maintenance of the
children and the said amount is directed to be paid as an interim
maintenance.
::: Uploaded on - 02/05/2018 03/05/2018 23:30:39 :::
Tilak 14/14 WP-13144-1710 By the impugned order, the Court has also directed
the respondent to comply with the order as regards the alternative
accommodation and also directed the respondent to pay school
fees for the Academic Year and to continue to pay school fees
directly, till the disposal of the petition. Since no perversity is
found in the impugned order passed by the Family Court, the same
is upheld.
11 For the reasons recorded above, the present writ
petition is dismissed.No order as to costs.
(BHARATI H. DANGRE, J)
::: Uploaded on - 02/05/2018 03/05/2018 23:30:39 :::
