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Sumit Vijay Kumar Jain vs Shraddha Gupta Jain on 13 April, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7175 OF 2017

Sumit Vijay Kumar .. Petitioner
Versus
Shraddha Gupta Jain .. Respondent

WITH

WRIT PETITION NO.1215 OF 2018
WITH
WRIT PETITION NO.1229 OF 2018
WITH
WRIT PETITION NO.6268 OF 2017

Shraddha Gupta .. Petitioner
Versus
Sumit Vijay Kumar Jain .. Respondent

Ms.Manjula Rao, Sushmitha Sherigar, Rupali Naik, Advocate
for the petitioner in WP No.7175/17 and for respondent In
WP Nos.1215/18, 1229/18 and 6268/17.

Mrs.Taubon F. Irani for the respondent in WP 7175/17 and for
the petitioner in WP Nos.1215/18, 1229/18 and 6268/17.

CORAM: SMT.BHARATI H. DANGRE, J
RESERVED : 22nd MARCH 2018
PRONOUNCED : 13th APRIL 2018

JUDGMENT : –

1 The group of 4(four) petitions were heard

together, by consent of the parties, since the issues in the four

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petitions revolve around the marital discord between the

same parties, and it was more appropriate to deal with the

different issues amongst them and dispose off all the petitions

by passing common order touching different issues. All the

four writ petitions assail the orders passed by the Family

Court and either of the parties is aggrieved by the said order.

2 The present group of petitions are a reflection of

the pertinent and peculiar issues arising in a marital discord

in a metropolitan city where both the spouses strive together

to build a nest and nurture it for the new born. Emily

Dickinson’s Poem “For every Bird a nest” truly reflects the

situation in which the modern day couples find themselves

placed in.

“For every bird a Nest
wherefore in timid quest
some little Wren goes seeking around

Perhaps a home too high
Ah Aristocracy !
The little Wren desires

Yet who of all the throng
Dancing around the Sun
Does so Rejoice ?

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However, on account of some discord when this nest is

sought to be divided along with the sharing of responsibilities

as parents towards the child of tender age. The parties would

be hereinafter referred to as ‘husband’ and ‘wife’ in order to

avoid the shifting of the caption in the respective petitions

since the parties have been impleaded in accordance with the

petitions filed in the irrespective capacities.

In order to appreciate the orders which are

assailed before this Court, it would be necessary to refer to

the chronology of events in brief to appreciate the

background in which the orders have been passed by the

Family Court and to deal with the rival contentions of the

parties assailing the said orders. The petitioner Sumit Jain is

aged 36 years, and is presently working as a Vice-President

(Sales) with Lodha Group, whereas the wife Shraddha Gupta,

aged 31 years is working as Vice-President of the Axis Bank.

The marriage between the parties was an arranged marriage

and was solemnized on 8th March 2011 at Gaziabad. At the

time of marriage, both the parties were serving with Axis

Bank, but the wife was serving in Delhi and husband was

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serving at Mumbai. However, after marriage, the wife sought

a transfer from Delhi to Mumbai branch of Axis Bank, and she

continues to work in Axis Bank in Mumbai, whereas the

husband in June 2016 gave up his job with the Axis Bank and

engaged himself in another job with the Lodha Group of

Companies. Upto 2012, the parties were residing in a rented

flat. However, in May 2012, the parties booked two flats by

availing two separate loans. The parties jointly purchased

two flats at Cosmic Heights, Bhakti Park, Wadala (East),

Mumbai. The parties were never able to convert the said

house into a ‘home’ providing nest for their child and it is

hereinafter referred to as “matrimonial house”. The dispute

around the parties is concentrated on an issue as to whether

the unit which they purchased was one flat or whether they

are two flats. Out of the wedlock, a child was born in 2014

and before the parties could enjoy the bliss of the new born

coming into their life, and before they could assume their

responsibilities as mother and father, the marriage of the

parties started sailing through a rough phase. The allegation

of the wife is that the husband inflicted cruelty upon her and

there was persistent demand of dowry. According to the wife,

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an amount of Rs.1.4 crores was spend on the wedding, and

an amount of Rs.50 lakhs was given in cash. Inspite of this,

the family of the husband was not happy and there was

demand of more amount. It is the allegation of the wife that

jewellery worth crore of rupees was handed over to the

husband and his family. The wife also makes certain

allegations about the marriage being not consumated for

initial period of six months in view of the erratic habits of the

husband, but according to her, he was treated for the cause

and the marriage was consumated.

3 The marriage crumbled further when the uncle of

the wife lodged a complaint under Section 498A of the IPC on

28th April 2016 at Narvana, Gin, Haryana with serious

allegations levelled against the husband as well as his family

members. The said complaint resulted into a filing of an FIR

in October 2016. The Anticipatory Bail Application filed by

the husband came to be rejected by the Sessions Court, Jind

on 30th November 2016, but his parents and brother and

sister-in-law were granted Anticipatory Bail. The husband

then approached Punjab and Haryana High Court seeking

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relief of Anticipatory Bail, which was granted to him on 15 th

December 2016. The wife also lodged a complaint at Wadala

Police Station on 15th May 2016 upon a petty issue of

handling of the remote control of Television in which an N.C

came to be filed on 16th May 2016. On 4th June 2016, the

husband instituted proceedings for divorce under Section 13

of the Hindu Marriage Act on the grounds of cruelty and the

petition came to be numbered as A-1618 of 2016. It is

pertinent to note that on 5 th August 2016, a summons for

divorce was served upon the wife through the bailiff and it is

the specific grievance of the husband that on receiving the

said summons, the wife filed a false complaint against the

petitioner for assaulting her under the influence of liquor at

Wadala Police Station. Apprehending the relationship to

deteriorate further, it is the case of the husband that he

started staying at a friend’s place and later shifted to a rented

premises.

4 In this backdrop, various applications came to be

filed by the respective parties. On 16th August 2016, the

husband filed an interim application vide Exhibit-8 praying

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for appointment of Commissioner to partition the

matrimonial house as per the original lay out of the flat. It is

the specific case of the husband that on 18 th August 2016,

when he returned to the matrimonial home from work, a new

pad lock was installed by the wife on the main door and he

was not allowed to enter his own house as the wife refused to

open the door. The husband approached the Wadala Police

Station and filed N.C No. 2187, but since the wife refused to

permit him to stay in the said accommodation, he was left

with no option than to take another alternative

accommodation. In the mean time, on 29 th September 2016,

the wife also filed an interim application seeking the

injunction against the husband restraining him from entering

the flat/matrimonial house located at Bhakti Park, Wadala

(E), Mumbai.

5 Writ Petition No.7175 of 2017, a writ petition

filed by husband arises out of an order passed by the Family

Court on 6th April 2017 rejecting the application filed by the

husband vide Exhibit-8 seeking appointment of Court

Commissioner for partition/division of two flats bearing

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No.1901 and 1902 situated at Cosmic Heights, Bhakti Park,

Wadala, whereas WP No.6268/2017 is filed by the wife

Shraddha challenging the order passed by the Family Court,

thereby refusing the relief sought by her by Exhibit-14 to

restrain the husband, his agents and family members from

creating nuisance and attempting to enter into matrimonial

house, until final disposal of the proceedings. The Family

Court by an order dated 6th April 2017 partly allowed the

application and restrained the respondent from creating third

party right in respect of flat nos.1901 and 1902, whereas

rejected the relief sought to restrain the husband, his agents

and family members from creating nuisance and attempting

to enter into matrimonial house at Cosmic Heights. This

Court would deal with the issue raised in these two petitions

together, since it involves around the same cause of action i.e.

the joint ownership of the flat nos.1901 and 1902, the

matrimonial house.

It is not in dispute that Flat nos.1901 and 1902 is

purchased by the husband and wife from one Mr.Bhushan

Sethi and Mrs.Rohini Sethi – the original purchasers of the

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flat. The two flats were purchased by two separate sale

deed/agreements. Flat No.1901 is a 2 Bedroom Hall Kitchen

flat registered in the name of the husband as a primary owner

and the husband has obtained loan on the said flat and he is

paying the EMI of that flat. Flat No.1902 is a 1 Bedroom Hall

Kitchen Flat which is registered in the name of wife as a

primary owner, and she is paying EMI of the said flat. It is

the case of the parties that these flats were subsequently

renovated, and according to the husband, he has borne the

expenses of renovation exceeding an amount of

Rs.25,00,000/- (Rupees Twenty Five lakhs) and in the two

Writ Petitions, two orders have been passed by the Family

Court on the respective applications preferred by the husband

and the wife.

6 Writ Petition No.7175 of 2017 arises out of the

impugned order passed on an application filed by the

husband to appoint a Commissioner for partition and division

of two flats namely, i.e. Flat nos.1901 and 1902. The

application preferred by the husband narrated the marital

discord existing between the parties and narrated the

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circumstances in which he was compelled to shift to his

friend’s house in order to avoid the lodging of false cases

against by the wife, apprehending that the wife would create

pressure on the police to get him arrested. He states that he

was required to shift shifted to a rented premises. However,

by the said application, he prayed that since Flat nos.1901

and 1902 are separate flats, the said flats be partitioned in the

interest of justice and the CCTV camera be installed on his

side of the flat to be granted to him. Along with the

application, the applicant had placed on record the lay out

map of the said flat as well as the agreement for sale executed

between the owner Mr.Bhushan Sethi and Mrs.Rohini Sethi

and the applicant and the respondent wife in respect of the

Flat no.1902 in Cosmic Heights admeasuring 535 sq.ft on the

19th floor of “A” wing of the building which mentions that the

vendors have availed loan facility for acquiring the said flat.

The said agreement reflects the total consideration for the

said flat. Another agreement for sale has been placed on

record dated 15th June 2012 executed between Bhushan Sethi

and Rohini Sethi and the applicant husband and wife in

respect of Flat no.1901 on 19th floor, “A” wing in Cosmic

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Heights, and it is mentioned that the vendors have availed

home loan facility from the ICICI bank in respect of the said

flat. The said flat is shown to be admeasuring 780 sq.ft, and

the amount of consideration paid is also reflected. The

applicant has also placed on record the documents to

demonstrate that he had availed housing loan in respect of

Flat no.1901 which is payable with a principal amount of

Rs.53,048/- and the interest component of Rs.3,99,857/- and

the total amount of loan that was sought is Rs.60,00,000/-

(Rupees Sixty Lakhs). The applicant has also placed on

record the separate sale certificates of the said flat and the

separate maintenance bills in respect of the said flats on

record. The affidavits sworn by the parties in form of the

declaration to be given in consideration of the Axis Bank

sanctioning the housing loan as against the flats so as to

create an equitable mortgage on the said flats have also been

placed on record.

7 Ms.Manjula Rao, learned counsel for the applicant

husband would submit that the Family Court has erred in

rejecting the application filed by the husband seeking

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partition of the said flat. She would take this Court through

the chronology of events and would submit that the husband

was subjected to tremendous mental harassment and have

been kept out of his own house in respect of which he is

paying an EMI. She would submit that the matrimonial

house is purchased by the husband and wife in form of two

separate flats, and both the husband and wife have

respectively obtained loans on the flat which they have

purchased and both of them are repaying the loan. The

learned counsel would submit that one fine day when the

husband returned to the said house, he found the locks being

changed, which left with him no option than to reside

separately and since he was facing constant pressure from the

wife by her lodging complaints to police station and since he

had already suffered the frivolous allegation in form of a

complaint which was filed in Haryana by the uncle of the

wife, in order to avoid the said scenario and further

harassment, the husband had chosen to stay outside the said

matrimonial house. However, Ms.Rao would submit that

being a husband, he is entitled for a fair treatment in view of

the fact that one of the flat amongst two flats belong to him,

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and the amount of EMI is regularly being deducted from his

regular salary. He would submit that he is also fastened with

a liability to pay maintenance towards his daughter and in

addition, he is required to pay rent since he is residing in the

separate accommodation, which is drying his financial

resources. In this backdrop, Ms.Rao would submit that the

Family Court has failed to take into consideration the said

peculiar situation and ought to have appointed a

Commissioner to partition the flat, which relief was sought by

the applicant in the application in the peculiar backdrop of

the fact that the two flats are separate flats.

As against this, the learned counsel Ms.Taubon

Irani would argue that the two dwelling units in form of flat

nos.1901 and 1902 is a single unit, and she specifically places

reliance on the notice issued by the Income Tax Department

on 15th March 2016, wherein the Income Tax Department on

verification, has found that the residential property occupied

by the wife is a single unit with one main entry door and they

are not two separate units. She would invite attention of this

Court to the proceedings filed under the Domestic Violence

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Act, and she would submit that the wife was subjected to

utmost cruelty, and she was left with no option than to restrict

the entry of the husband into the said flat on account of

utmost cruelty inflicted by him. Ms.Irani would submit that

the flats cannot be subjected to partition and the whole

purpose with which she had approached the Family Court was

to keep the husband out of matrimonial home, since he was

treating the wife with utmost cruelty and it was for her safety

that he was to be kept away from the matrimonial house.

8 On consideration of the rival claims made by the

parties and the submissions advanced by the respective

counsel, in support and against the impugned order passed by

the Family Court, it is clear that the parties have purchased

two flats by two different agreements to sell i.e. flat nos.1901

and 1902 in Cosmic Heights, Bhakti Park, Wadala. Though

the said flats have been purchased by the husband and wife

jointly, as both the agreements to sale reflect the name of the

husband and wife as purchasers, it is clear that there are two

different flats and both of them had availed loan on the flats

separately. The husband has availed the loan towards

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purchase of flat no.1901, whereas the wife has availed the

loan on flat no.1902. The husband has availed the loan

facility of Rs.60 lakhs whereas the wife has availed loan of

Rs.25 lakhs on flat no.1902. The payment slip of both the

applicant and the respondent are on record, which would

reveal that an amount of EMI is deducted from their

respective salaries. The share certificate in respect of flat

nos.1902 and 1902 are distinct.

In order to determine as to whether the two flats

is one unit or not, my learned Predecessor (Justice G.S.

Kulkarni) had directed the Mumbai Municipal Corporation to

be impleaded as a party respondent to ascertain as to the

actual position whether the two flats are separate flats on

record of Municipal Corporation or they are permitted to be

amalgamated into one flat. In pursuance of the said order, a

report was tendered before the Court by the Assistant

Assessor and Collector who categorically stated that Flat

No.1901 and 1902 are assessed separately to municipal

property taxes.

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This position being brought on record, it is clear

that the two flats are separate, may be for the sake of

convenience, being one family residing in the two flats, some

arrangements might have been worked out so as to put the

two flats to use in form of a single dwelling unit to be

occupied by one family. The Family Court has dealt with the

application filed by the husband and has observed that the

dispute is in respect of sharing of the flats. However, the said

relief claimed by the petitioner to partition the said flat is of a

final nature which could not have been granted at the interim

stage, and in this backdrop, the application came to be

rejected.

There appears to be no legal infirmity in the

impugned order passed by the Family Court on 6th April 2017.

The husband had sought a relief which is in the nature of

final relief and it could not have been granted at an interim

stage. Though Mrs.Rao has placed reliance on the judgment

of this Court in the case of Sandeep Kedia and Pooja Kedia

delivered on 2nd August 2011 (Smt.Roshan Dalvi, J) in Writ

Petition 2254 of 2011, the said order is passed in the peculiar

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facts and circumstances where the parties had purchased two

flats and they were joined as one flat. However, it was the

specific case before the Court that the husband has not repaid

any amount and the husband had given an offer that the wife

may come and reside in a flat. However, the wife was

residing in Dubai. Therefore, there was no question of she

coming and staying there, but it was accepted by the Court

that she was the owner of one of the two flats which have

been converted into one and she could not have been

deprived of enjoying the benefits of her ownership and she

could put the flat to best use and avail the income accruing

therefrom. In such circumstances, the order was passed by

the Court to put a temporary partition and the wife was

entitled to claim the income generating from the portion of

flat of which she was the owner. Therefore, the facts of the

present case are distinguishable from the facts in Writ Petition

No.2254/2011. Reliance was placed by Ms.Rao in the

judgment in the case of Yogita Das Gupta Vs Kaustav Das

Gupta, MAT APP (FC) 7/2014. This judgment is also not

applicable to the present case since that judgment which was

delivered by the Court was in an Appeal and necessarily, the

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Appeal came to be decided after appreciation of evidence on

record and in those circumstances, the judgment passed by

the Delhi High Court could be justified.

However, in the present case, what the husband

sought is a partition of the matrimonial house, which the

Court rejected on the ground that it would be amounting

granting of final relief and was rightly refused to grant at the

interim stage. This Court is of the opinion that there is no

perversity in the impugned order passed by the Family Court

and hence, no reason warrants interference in the said order.

Writ Petition No.7175 of 2017 is therefore, liable to be

dismissed.

9 Dealing with the Writ Petition No.6268 of 2017

which is filed by the wife has assailed the order passed by the

Family Court on 6th April 2017 on an application seeking a

restraint order against the husband, his agents and family

members from creating nuisance and attempting to enter into

matrimonial house until final disposal of the proceedings.

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Ms.Irani who argued in support of the petition

would submit that the Family Court has erred in not granting

the relief prayed by the wife on a completely wrong

assumption. Mrs.Irani would submit that the said application

came to be filed in Petition No.A-1618 of 2016, but it ought to

have been appreciated in light of the Domestic Violence

application filed by the wife under Sections 12, 18, 19, 20, 22

and 23. She would submit that in the said application, she

had narrated the entire chronology of events justifying her to

be entitled to a declaration that the respondent and his family

members had committed the act of domestic violence against

the applicant and restraining the husband and family

members from entering into Flat nos.1901 and 1902.

On perusal of the impugned order dated 6 th April

2017, the Family Court has rightly observed that Flat

nos.1901 and 1902 has been purchased by the husband and

wife jointly, and in flat no.1901, the husband is the primary

owner, whereas in Flat no.1902, wife is the primary owner

and both the parties had given the details of down payment

towards purchase of these flats. The Family Court has

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accepted the case of both the parties that they have availed

loans on the respective flats. The Court expressed that the

flats are in joint ownership, in the sense that the husband and

the wife are both owners of both these flats and the husband

being one of the joint owner cannot be restrained from

entering into the flat which is jointly owned by him in respect

of which he is also repaying the loan. In the backdrop of

these facts, the Family Court did not deem it fit to grant such

a restraint order in view of the joint ownership of Flat

nos.1901 and 1902 in the name of husband and wife.

However, in the interest of justice, the Family Court has

restrained the husband through his agents and family

members from creating any third party rights in respect of

Flat Nos.1901 and 1902. The said order passed by the

Family Court cannot be faulted with. The Family Court has

rightly observed that since the husband is a co-owner of Flat

no.1901/1902 which, according to the petitioner, are separate

flats and according to the respondent wife is one composite

unit. However, there is no denial of the joint ownership of

the husband in these flats and it is the case of the wife that

the flats have been joined and being used as a single dwelling

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unit, the husband cannot be restrained from entering into the

said dwelling unit and the order passed by the Family Court

in the background of the facts and circumstances calls for no

interference and needs to be upheld. Writ Petition No.6268

of 2017 is therefore liable to be dismissed.

10 This Court do not find any perversity in the order

passed by the Family Court refusing appointment of

Commissioner to partition the flat at an interim stage, and so

also the order of the Family Court refusing to pass any

restraint order restraining the husband from entering into the

matrimonial house, owned jointly by the husband and wife.

The husband is at liberty to reside in the said house by

making appropriate arrangement. It is directed that the

respondent wife would co-operate with the husband to reside

in the matrimonial house, since the relief sought by the wife

restraining the husband from entering into the said flat has

been specifically rejected, and in the backdrop that the flat is

jointly owned by the husband and wife and he cannot be

restrained from entering his own property.

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11 Writ Petition No.1215 of 2018 is filed by the wife

assailing the order passed by the Family Court on an interim

application filed by her seeking interim maintenance for the

minor daughter Ahana. By the order dated 13 th October

2017, the Family Court, Mumbai has partly allowed the

application and directed the respondent husband to pay an

amount of Rs.40,000/- per month to the wife for maintenance

of the minor child from the date of application i.e. since 20 th

September 2016.

It is argued by the learned counsel Ms.Taubon

Irani that the wife had moved an application, seeking

maintenance of Rs.1,91,200/- every month towards the

expenses of the minor child. The learned counsel invited the

attention of this Court to the application filed on 20 th

Separately 2016. Paragraph no.9 of the said application sets

out the expenditure incurred by minor Ahana and it is the

contention of the applicant that she is unable to meet the

expenses and she is required to seek her mother’s help to

meet the expenses. The chart in paragraph no.9 bifurcates

the amount of Rs.1,92,000/- towards Ahana’s day care,

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expenses of her maid, her clothes, diapers etc. It also

includes the expenses of maid for cooking and cleaning,

foreign trips to the tune of Rs.40,000/-, domestic travel to the

tune of Rs.10,000/-. The application also gives the detail of

the property owned by the husband at Gurgaon and also a

statement is made that the husband has invested an amount

of Rs.60,00,000/- (Rupees Sixty lakhs) in the Mutual Funds.

In the application, the following prayers are made

a) This Hon’ble Court direct the Petitioner to
pay Rs.1,91,200/- every month towards the
expenses of the minor child along with monthly
expenses of the House and that of the
Respondent.

b) This Hon’ble court directs the Petitioner to
provide a car and a driver.

c) This Hon’ble Court direct the Petitioner to
pay the school fees of the minor child “Aahana”
when enrolled.

d) This Hon’ble Court be pleased to direct the
Petitioner to produce the Conveyance Deed of the
said land purchased by him.

e) This Hon’ble Court direct the Petitioner to
continue to pay the EMI for Rs.81.50 lakhs being
the loan towards the house and continue paying
the monthly maintenance of the said flat.

f) Litigation cost Rs.2,00,000/- for the
payment”

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In response to the said application, a reply was

filed by the respondent, stating that the child Ahana is only 2

½ years old and the application is nothing but an attempt to

extort money in the guise of expenditure of the minor

daughter. In the reply, the husband has expressed his

readiness and willingness to contribute and share the

expenses of the daughter on production of genuine and

authenticated documents, showing that the expenses are

incurred for the maintenance of the child.

In support of the stand of the respondent husband

Ms.Rao, learned counsel representing the husband would

submit that the husband is required to incur the expenses of

paying rent to the tune of Rs.36,000/-, on account of he not

being permitted to share the household in which he has

invested money and for which he is paying an EMI of

Rs.55,000/-. On the contrary, it is argued by Ms.Rao that the

wife is paying EMI to the tune of Rs.32,000/- only and she is

working as Vice-President with the Axis Bank and has

concealed her true income. Ms.Rao would emphasize on the

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fact that her client is required to bear her additional expenses

of paying rent of the flat and he is deprived of being staying

in his own house in which he has invested and also he is

repaying the EMI.

12 On consideration of the application and the reply

tendered by the parties, and on consideration of the

submissions advanced by the learned counsel, it can be seen

that the Family Court has considered the earning capacity of

the husband and wife and also the liabilities borne by them.

The Court has considered the bank statement of the husband

which was placed on record and also referred to certain credit

entries of his salary into his account. The Family Court has

also considered the position of the wife who is working as

Assistant Vice-President in Axis Bank and the husband had

produced a salary slip of wife of December 2014, and she

herself had produced her salary slip for September 2017

which has reflected her gross salary of Rs.1,17,516/- which

includes the Basic, Conveyance allowance, HRA, LTC, Special

allowance etc. The Court has considered her income after

deducting the statutory deductions. The Family Court has

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also considered the Income Tax returns for the Assessment

Year 2016-17 and proceeds to observe that both the husband

and wife are required to pay the EMI of the joint flat owned

by them. The Court has observed that the respondent wife is

not required to pay any rent, whereas by an earlier order, the

parties were directed to bear school fees and educational

expenses to the extent of 40% and 60% respectively. The

Court has considered the statement given by the applicant in

respect of the expenses of Ahana and arrived at a conclusion

that the husband is liable to 50% expenses of the daughter

and considering the age of Ahana, the Court deemed it fit to

award interim maintenance @ Rs.40,000/- per month from

the date of application i.e. 20th September 2016.

Though an attempt was made by Ms.Irani, the

learned counsel opposing for the wife to convince this Court

that the said amount awarded by the impugned order is not

sufficient to cater to the needs of Ahana, specifically taking

into consideration the status of the parties, it appears to me

that the amount that has been awarded by the Family Court is

just and reasonable amount, and cannot be said to be a

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meager amount. Though in paragraph no.9 of the

application, the applicant mother has given the details which

are somehow an exaggerated version of what is required by

an approximately 3 years old child, and which also includes

an amount towards house maintenance, household expenses,

including electricity and ration, towards driver – fuel, it is not

understood as to how this amount is claimed as expended

towards the daughter exclusively. The child Ahana is too

small to travel alone, and the driver and fuel expenses are

obviously the one which are required for the mother.

Similarly, the household expenses to the tune of Rs.35,000/-

cannot be calculated as expenses towards daughter Ahana,

but it is towards electricity of the house, the luxuries of which

the applicant wife is enjoying. The house maintenance of

Rs.8,000/- can also never be calculated as exclusively meant

for Ahana. This Court is of the clear opinion that the

demand made is an exaggerated projection of the day to day

requirements of Ahana and for a child of 3 to 4 years, an

amount of Rs.40,000/- is sufficient more so, whatsoever more

is required for her maintenance, can be contributed by the

applicant mother who is also equally responsible for

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upbringing of a child and taking care of her day to day

expenditure, when she is a mother with an earning capacity

and is in fact, earning a handsome salary. In such

circumstances, it would be unjust if the husband is burdened

with the sole responsibility of bearing the expenses of the

child. Though the applicant has claimed a maintenance of

Rs.1,91,200/- per month for a child aged three years, it is

reflective of fictitious figure calculated by taking into

consideration other expenses which cannot be counted

towards the maintenance of the child. The Family Court has

taken a balanced view of the earnings of the husband as well

as the wife and most important, the needs of the child. The

wife had prayed for monthly expenses of the house and to

provide a car by the said application. The said prayers have

been rightly rejected by the Family Court. No legal infirmity

can be found in the impugned order passed by the Family

Court and hence, the said order passed on 13 th October 2017

is upheld and the writ petition no.1215/17 is dismissed.

13 As far as Writ Petition Stamp No.17913 of 2017 is

concerned, the same is filed by the wife, being aggrieved by

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the order passed by the Family Court below Exhibit-43 where

the wife has sought permission to enroll the minor daughter

Ahana in JBCN school. She also sought direction to be issued

to the husband to pay school fees and the education related

expenses of daughter Ahana, till completion of her education.

She has also sought direction to restrict the husband from

interacting with the school authorities or to enter the school

premises without permission of the Court.

The Family Court has dealt with the issue by

taking into account the comparative statement of the school

fees i.e. AVM School tendered by husband which was initially

selected by the mother herself and the JBCN school. Perusal

of the order of the Family Court reveals that the fees of AVM

school is Rs.85,000/- per annum whereas the fees in JBCN

school is Rs.6,00,000/- per annum. There is thus a difference

of approximately 7 to 8 times in the fees of the latter school

as compared to the former.

It is no doubt true that the mother can insist on a good

schooling for a child, but she cannot insist that it should be a

school which involves high expenditure because necessarily,

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merely because the fees are high, would not make the school,

a good school. The concern of a mother that the child should

be put in a good school is understandable. The father do not

have any quarrel about the said concern and both the parties

are at ad idem that the daughter should be sent to a school

which would provide her good schooling and at the same

time, it should be at a distance close to the residence and to

her day care. With great maturity, both the parties agree

before the Court that they would find out one such school and

would then take a decision of admitting the child in the said

school from the next academic session. In the light of the said

consensus reached between the parties, this Court is not

called upon to decide the writ petition arising out of the order

dated 7th June 2017 passed by the Family Court, Mumbai, on

an interim application filed by the wife.

In the light of the arrangement reached between

the parties that they would jointly agree as to the school in

which daughter Ahana would be admitted from the next

academic session, by keeping in mind the factors as to the

location of the said school from the residence and the Day

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care, and the school being importing good education to the

child.

In the result, Writ Petition No.7175 of 2017 is

dismissed. Writ Petition No.1215 of 2018 file by the

petitioner-wife is dismissed. Writ Petition No.6268 of 2017 is

also dismissed. Writ Petition No.1229 of 2018 is disposed of.

(BHARATI H. DANGRE, J)

At this stage, today when the judgment is

pronounced, Ms.Irani prays for grant of stay to the order

dismissing her petitions, namely, Writ Petition Nos.1215/17

and 6268/17. Since she intends to approach The Hon’ble

Apex Court challenging the stay order, the said request is

vehemently opposed by Ms.Manjula Rao, learned counsel

appearing for the husband. Since this Court has considered

the issue in great detail, this Court is of the opinion that no

case is made out for grant of stay to the order passed by this

Court. The request made is thus rejected.

(BHARATI H. DANGRE, J)

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