ppn 1 41.wp-10227.17.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10227 OF 2017
Anuja Lalit Bhowar )
Hindu, Indian Inhabitant, )
Age : 34 years, Occ.: Housewife )
r/at: 1, Meghalay, N.P. Thakkar Road )
Vile Parle (East), Mumbai – 400 057. ) .. Petitioner
Versus
Lalit Prakash Bhowar )
Hindu, Indian Inhabitant )
Age: 36 years, Occ: Service, )
r/at : Room No.401, 4th Floor, )
Saraswati Apartment, )
Near Trimurti Chunabhatti, Sion, )
Mumbai – 400 022. ) .. Respondent
—
Mr.R.T.Lalwani with Mrs.Sadhana Jaikar i/by Mr.Prakash L. Mahadik
for the petitioner.
Mr.Prashant G. Sawant for the respondent.
—
CORAM : R.D. DHANUKA, J.
DATE : 6th November 2017
Judgment :-
. Rule, returnable forthwith. Learned counsel appearing for
the respondent waives service. The petition is heard finally.
2. By this petition filed under Article 227 of the Constitution of
India, the petitioner has impugned the order dated 24th February 2016
::: Uploaded on – 10/11/2017 11/11/2017 01:31:55 :::
ppn 2 41.wp-10227.17.doc
passed by the learned Judge of the Family Court No.2, Mumbai rejecting
the application filed by the petitioner for seeking interim maintenance for
herself and her daughter who is six years old.
3. The petitioner had earlier filed an application for
maintenance under the provisions of Protection of Women from
Domestic Violence Act, 2005. The same was decided by the
Metropolitan Magistrate, 65th Court, Andheri, Mumbai on 7th October
2013 directing the respondent-husband to pay a sum of Rs.7,000/- per
month for maintenance from 5th May 2011 till 27th December 2014 and
an amount of Rs.3,600/- per month for minor daughter till she attains
the age of majority and is married or until further orders. Both the parties
had challenged the said order dated 7 th October 2013 passed by the
Metropolitan Magistrate before the Sessions Court.
4. By an order dated 30th January 2014, the learned Judge of
the Sessions Court granted stay to the order dated 7 th October 2013 until
further orders upon depositing 50% of arrears of amount due towards
the petitioner herein from the date of application to till date of the said
order. The respondent was further directed to deposit 75% of arrears of
amount due towards his daughter from the date of her birth i.e. 27 th
::: Uploaded on – 10/11/2017 11/11/2017 01:31:55 :::
ppn 3 41.wp-10227.17.doc
December 2011 to till date of the said order. The learned Sessions Judge
made it clear that during the pendency of the appeal, the respondent
herein to continue to make the payment of maintenance @Rs.6,000/- per
month including the maintenance of daughter until further orders. Those
proceedings were finally decided and the petitioner and her daughter
have been granted maintenance of an amount of Rs.5,000/- per month.
5. Learned counsel for the petitioner submits that the
respondent is employed and has been earning at least Rs.55,000/- per
month as an income. He invited my attention to the affidavit dated 5 th
January 2016 filed by the respondent herein in Interim Application
No.98 of 2015 and would submit that the respondent had shown his
readiness and willingness to pay the Education Expenses of the child
from the date of the application. In the said affidavit, the respondent
undertook and was ready to pay the future Educational Expenses of
the minor child from the date of the said application directly to the
school against the receipt or the school diary till the disposal of the
application for maintenance.
6. Learned counsel invited my attention to the reasons recorded
by the Family Court in the impugned order and submits that interim
::: Uploaded on – 10/11/2017 11/11/2017 01:31:55 :::
ppn 4 41.wp-10227.17.doc
application filed by the petitioner is rejected mainly on the ground that
while disposing of the proceedings bearing Petition No.A-2273 of 2014,
the Sessions Court had already granted an amount of Rs.6,000/- after
application of judicial mind and had decided the quantum of maintenance
and therefore, it would not be proper to again verify the needs of the
respondent and her daughter and income of the petitioner. It is held that
the amount of Rs.6,000/- per month as awarded by the Sessions Court
was having regard to all the facts agitated by the parties before the
family Court and thus no additional amount can be considered.
7. Learned counsel for the petitioner invited my attention to
the order passed by the Sessions Court and would submit that while
directing the respondent to pay an amount of Rs.6,000/- per month as
and by way of maintenance for the petitioner herself and for her
daughter, no reasons were recorded by the Sessions Court. He submits
that in any event, the applications filed by the petitioner for maintenance
under the provisions of Section 125 of the Code of Criminal Procedure
as well as the Domestic Violence Act are independent proceedings.
8. Learned counsel for the petitioner fairly brought to the
notice of this Court that the petitioner has now obtained a certificate of
::: Uploaded on – 10/11/2017 11/11/2017 01:31:55 :::
ppn 5 41.wp-10227.17.doc
practice from Bar Council of Maharashtra in the month of March 2017.
Though the respondent had rendered an undertaking in his affidavit dated
5th January 2016 to pay the future educational expenses of the minor
child from the date of application till disposal of the application, the
respondent has not complied with the said undertaking in toto. He
submits that the petitioner has not started any practice though has
obtained a certificate of practice from the Bar Council of Maharashtra.
In these circumstances, the maintenance being paid by the respondent
@Rs.5,000/- per month is totally insufficient considering the rate of
inflation.
9. Learned counsel appearing for the respondent, on the other
hand, submits that interim maintenance granted by the learned
Magistrate in the application filed by the petitioner under the provisions
of the Domestic Violence Act was challenged by both the parties. He
submits that the Sessions Court had already fixed an amount of
Rs.6,000/- per month for the maintenance of the petitioner and her
daughter. The said order was not challenged by the petitioner before this
Court and thus the learned Family Court was right in relying upon the
said order while rejecting the application for interim maintenance filed
by the petitioner. He submits that in the proceedings filed by the
::: Uploaded on – 10/11/2017 11/11/2017 01:31:55 :::
ppn 6 41.wp-10227.17.doc
petitioner, the learned Magistrate has awarded maintenance of Rs.5,000/-
per month and thus no interference with the order passed by the learned
Judge of the Family Court No.2, Mumbai is warranted in this petition.
Learned counsel for the respondent does not dispute that his client is
earning a salary of Rs.55,000/- per month.
10. In so far as the submission of the learned counsel for the
respondent that the Sessions Court has already fixed an amount of
Rs.6,000/- per month towards maintenance in favour of the petitioner
and her daughter and the said order was not challenged by the petitioner
is concerned, a perusal of the said order dated 30 th January 2014 passed
by the learned Sessions Judge indicates that the said order was passed
as and by way of interim order during the pendency of the appeal and
was passed without recording any reasons.
11. In my view, the said order passed by the learned Judge of
the Sessions Court was not conclusive for deciding the interim
application for maintenance made by the petitioner for herself and her
daughter who is six years old and is studying in school after number of
years. It is well settled principle of law that the application for
maintenance under the provisions of Section 125 of the Code of Criminal
::: Uploaded on – 10/11/2017 11/11/2017 01:31:55 :::
ppn 7 41.wp-10227.17.doc
Procedure and the application made under the provisions of the Domestic
Violence Act are independent proceedings and can be considered
simultaneously.
12. A perusal of the order passed by the Family Court No.2,
Mumbai indicates that the learned Judge of the Family Court carried an
impression that the order passed by the Sessions Court as and by way of
interim order during the pendency of the appeal was conclusive and
binding precedent forever on the Family Court as well as on both the
parties.
13. A perusal of the order dated 21 st November 2015 passed by
the learned Additional Sessions Judge also indicates that no reasons were
recorded by the Sessions Judge while confirming the order of interim
maintenance of Rs.6,000/- per month. Be that as it may, the learned
Judge of the Family court was independently bound to consider the
application for maintenance from the date of application on the basis of
the situation prevailing on the date of such application. The situation
prevailing on the date of the application made by the petitioner in the
year 2013 cannot be same what is prevailing in the year 2016.
::: Uploaded on – 10/11/2017 11/11/2017 01:31:55 :::
ppn 8 41.wp-10227.17.doc
14. Learned Family Court has adopted a casual approach in the
order dated 24th February 2016 by rejecting the application filed by the
petitioner for maintenance for herself and her daughter. Considering the
rate of inflation today, the amount of Rs.5,000/- per month would not be
at all sufficient for any person to survive with dignity and more
particularly for two persons including a school going child.
15. Learned counsel for the petitioner has rightly placed reliance
on the judgment of the Supreme Court in the case of Manish Jain
Vs.Akanksha Jain, reported in II (2017) DMC 106 (SC) and more
particularly paragraph 15 thereof. Supreme Court has held that it is no
answer to a claim of maintenance that the wife is educated and could
support herself. 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 and,
therefore the Court should decide the claim for maintenance based on
various factors brought before the Court. In my view, the principles laid
down by the Supreme Court in the aforesaid judgment would squarely
apply to the facts of this case. The learned Judge of the Family Court
::: Uploaded on – 10/11/2017 11/11/2017 01:31:55 :::
ppn 9 41.wp-10227.17.doc
ought to have considered the factual situation on the date of making of
application filed by the petitioner for maintenance and not the situation
prevailing in the year 2013.
16. Be that as it may, I am inclined to accept the statement made
by the learned counsel for the petitioner that the petitioner though having
obtained certificate from Bar Council of Maharashtra and has not started
practice. There is no other material produced by the respondent to
controvert this statement made by the learned counsel for the petitioner.
The petitioner had made an application for maintenance of Rs.25,000/-
per month for herself and Rs.15,000/- per month for her daughter who
is six years old and is studying in school.
17. Considering the fact that the respondent is earning at least a
sum of Rs.55,000/- per month and this fact is not disputed by the
respondent, I am inclined to grant further maintenance of Rs.15,000/-
per month i.e. Rs.10,000/- per month to the petitioner and Rs.5,000/- per
month to her daughter till till she attains the age of majority from the
date of application made by the petitioner before the Family Court. In
addition to this compensation, the respondent shall continue to pay the
educational fees of the daughter directly to the school upon receipt of the
::: Uploaded on – 10/11/2017 11/11/2017 01:31:55 :::
ppn 10 41.wp-10227.17.doc
communication of the amount on or before the last date for payment of
such fees with intimation to the petitioner. The amount of maintenance
to the petitioner and her daughter by this order is in addition to the
amount of maintenance awarded by the Courts earlier.
18. The impugned order dated 24th February 2016 is accordingly
quashed and set aside. The amount shall be paid by the respondent from
the date of application which was made by the petitioner before the
Family Court. Arrears of amount shall be deposited by the respondent
before the Family Court within two weeks from today. Upon deposit of
such arrears, the Family Court shall permit the petitioner to withdraw
the said amount for herself and her daughter unconditionally.
19. In so far as the maintenance awarded by this Court for each
month is concerned, the same shall be paid by the respondent to the
petitioner on or before 15th day of every month without fail. If this order
is not complied with by the respondent, the petitioner would be at liberty
to file appropriate proceedings for taking an appropriate action against
the respondent.
::: Uploaded on – 10/11/2017 11/11/2017 01:31:55 :::
ppn 11 41.wp-10227.17.doc
20. Rule is made absolute in aforesaid terms. No order as to
costs.
R.D. DHANUKA, J.
::: Uploaded on – 10/11/2017 11/11/2017 01:31:55 :::