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Jairaj Shashikant Mistry vs Jigisha Jairaj Mistry on 1 November, 2018

WP3980_18.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3980 OF 2018

Jairaj Shashikant Mistry … Petitioner
Vs.
Jigisha Jairaj Mistry … Respondent

Mr. Vivek Kantawala a/w. Mr. Amey Patil i/b. Vivek Kantawala Co. for
Petitioner.
Mr. Rohaan Cama i/b. Shashwat Ravi i/b. Keystone Partners for
Respondent.

CORAM : R. G. KETKAR, J.

DATE : NOVEMBER 1, 2018
P.C. :

Heard Mr. Kantawala, learned Counsel for the petitioner and
Mr.Cama, learned Counsel for the respondent at length.

2. This Petition takes exception to the order dated 28.02.2018 passed
by the learned Judge, Family Court No.2, Mumbai below exhibits 6 and
12 in Interim Application No.72 of 2015. By that order, the learned trial
Judge disposed of the applications 6 and 12 by directing the petitioner
herein to pay an amount of Rs.40,000/- per month to the respondent
herein and Rs.30,000/- per month for the minor daughter, in all,
Rs.70,000/- per month towards the interim maintenance from the date of
application i.e. 04.03.2015 till decision of the Petition. The learned trial
Judge also made it clear that the amount of Rs.70,000/- shall include
Rs.20,000/- per month awarded on 06.05.2014 to the minor daughter in
Petition No.A-1145 of 2013. The learned trial Judge also made it clear
that amount of Rs.70,000/- per month shall be in addition to the
educational and medical expenses of the daughter incurred by the
respondent herein subject to her showing receipts and bills and asking
for reimbursement. The petitioner is further directed to pay Rs.15,000/-
in lumpsum to the respondent towards litigation expenses.

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3. In support of this Petition, Mr. Kantawala submitted that
petitioner has instituted Petition No.A-642 of 2012 on 25.05.2012 for
divorce. The said Petition was initially instituted in Family Court, Pune,
which was transferred to the Family Court at Bandra and numbered as
Petition No.A-1145 of 2013. The respondent filed application exhibit-30
on 01.01.2014 under Section 24 of the Hindu Marriage Act, 1955 (for
short ‘Act’). On 06.05.2014, by consent of the parties, petitioner agreed
to pay Rs.20,000/- per month towards maintenance of daughter with
effect from 01.01.2014.

4. On 04.03.2015, respondent filed Petition No.C-30 of 2015 under
Sections 18(1), (2)(b) and 20(1) of the Hindu Adoptions Maintenance
Act, 1956 (for short ‘Adoption Act’) read with Sections 19(f), 20 and 22
of the Protection of Women from Domestic Violence Act, 2005 (for
short ‘D.V. Act’). In that application, she claimed various amounts from
the petitioner herein. On the same day, she filed interim application for
maintenance in that proceedings. During the pendency of this interim
application, respondent filed application on 20.10.2015 again under
Sections 18(1), (2)(b) and 20(1) of the Adoption Act r/w. Sections 19(f),
20 and 22 of the D.V. Act. claiming Rs.1,00,000/- as interim
maintenance to her. He invited my attention to-
a. Paragraph 3(o) of Petition No.C-30 of 2015;

b. Paragraph 12 where respondent contended that she is working in
joint business of her father’s office M/s. Bharat Thacker. At the time of
her marriage, her salary was Rs.10,000/- per month and presently her
salary is Rs.15,000/- per month. She is full time working in her father’s
firm and part time doing her brokerage. Respondent is earning
Rs.57,000/- per month approximately.

c. Interim application filed in Petition No.C-30 of 2015 and in
particular, paragraph 22, where apart from contending that she is earning
Rs.57,000/- per month, she contended that she is holding few shares

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amounting to Rs.2,94,893/- and has PPF Account.
d. Income Tax Return for the assessment year 2013-14 of the
respondent where her gross total income is shown as Rs.7,49,050/-.

As against this, the petitioner’s gross income during that relevant
period is Rs.5,02,576/-. Mr. Kantawala submitted that thus, income of
the respondent is more than the income of the petitioner. That apart,
respondent has filed two interim applications claiming same relief. The
learned trial Judge was, therefore, not justified in directing the petitioner
to pay maintenance of Rs.40,000/- per month to the respondent. He
submitted that though petitioner had voluntarily agreed to pay
Rs.20,000/- per month to the daughter with effect from 01.01.2014, till
today not a single overnight access of the daughter is given to him.

5. Mr. Kantawala has taken me through the impugned order and
submitted that in so far as the entities mentioned by the respondent in
exhibit-A at items No.6 to 11, 15, 17, 19 and 21 are concerned, the same
are dead entities. They are not carrying on business for more than a
decade. As far as the membership of various Clubs at items No.26 to 29
are concerned, the membership of the club is inherited by the petitioner.
He submitted that the learned trial Judge, therefore, was not justified in
directing the petitioner to pay Rs.40,000/- per month to the respondent.
He submitted that Rs.30,000/- per month awarded towards maintenance
to the minor daughter is inclusive of Rs.20,000/- as awarded by order
dated 06.05.2014 in Petition No.A-1145 of 2013. The petitioner is not
challenging the award of maintenance to the minor daughter. The
challenge in the present Petition is restricted only to the maintenance of
Rs.40,000/- per month awarded to the respondent-wife.

6. On the other hand, Mr. Cama supported the impugned order. He
has taken me through-

a. Record of Ministry of Corporate Affairs in respect of Shashikiran

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Consulting LLP where the petitioner is shown as Director as on
06.05.2017;

b. Consent given by the petitioner to act as a Designated Partner of
Shashikiran Consulting LLP pursuant to Section 7(3) of the Limited
Liability Partnership Act, 2008 in respect of following partnership firms:

1. Riddhi Siddhi Developers,

2. Excellence Enterprises,

3. Mistry Enterprise,

4. S M Enterprise,

5. Samarth Developers,

6. Shivom Enterprises, and

7. Silver Enterprises;

c. No objection certificate issued by Jay Construction Corporation
in favour of Shashikiran Consulting LLP to use flat No.51, Keshar Kunj,
Khandubhai Desai Road, Near Rasraj Hotel, Vile Parle (West), Mumbai
400 056;

d. Record of Ministry of Corporate Affairs showing Director /
Designated Partner details as on 03.04.2018 and submitted that
following companies / LLP are active:

i. Shashikiran Consulting LLP,
ii. Santideep Property Private Limited,
iii. Jaishiva Properties Private Limited,
iv. Vaibhav Land Development Private Limited,
v. Pranaya Realtors Private Limited,
vi. JJ Land Developers Private Limited,
vii. Mistry Lalji Development Private Limited,

viii. Nariman Land Developers Private Limited, and
ix. Kiran Care and Cure Private Limited;

e. Record of Ministry of Corporate Affairs in respect of JJ Land
Developers Private Limited showing petitioner as Director as on
31.08.2017;

f. Director’s report to the effect that the petitioner will be appointed
as a Director of JJ Land Developers Private Limited in the forthcoming
Annual General Meeting;

g. Balance-sheet of JJ Land Developers Private Limited as on

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31.03.2017 showing closing balance of Rs.7,08,000.75/-;
h. Balance-sheet of the petitioner showing closing balance of
Rs.2,65,14,907.76/-, which shows investment and assets owned by the
petitioner as on 01.04.2009.

7. Mr. Cama submitted that having regard to the status of the parties,
no case is made out for interfering with the impugned order.

8. I have considered the rival submissions advanced by the learned
Counsel appearing for the parties. I have also perused the material on
record. I have already made detailed reference to the documents, which
are relied by Mr. Cama, which shows that the various companies, which
are said to be defunct or dead entities by Mr.Kantawala, are prima facie
not the dead entities. Considering the documents, it is evident that the
financial condition of the petitioner is very sound. Having regard to the
status of the parties and for the reasons recorded in paragraphs 6 to 8 of
the impugned order, I do not find that the learned trial Judge has
committed any error in passing the impugned order. Hence, no case is
made out for invocation of powers under Article 227 of the Constitution
of India. Hence, Petition fails and the same is dismissed. Respondent is
permitted to withdraw the amount deposited by the petitioner in this
Court, unconditionally.

(R. G. KETKAR, J.)

Minal Parab

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