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Mrs. Shlokha Narendra Chhabria vs Mr. Narendra Amar Chhabria on 7 December, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 594 OF 2017

Mrs. Shlokha N. Chhabria .. Petitioner
vs.
Mr. Narendra A. Chhabria .. Respondent

Mr. R.V. Pai a/w. A.R. Pai a/w. Akshay R Pai I/b Bina R. Pai
for the Petitioner
R.Ramani, Dilip Shinde and Aruna D. Shinde for the
Respondent.

CORAM : M. S. SONAK, J.

Date of Reserving the Judgment : 27th November 2018.
Date of Pronouncing the Judgment: 7th December 2018.

JUDGMENT:-

1] Heard the learned counsel for the parties.

2] Rule. With the consent of and at the request of learned

counsel for the parties, Rule is made returnable forthwith.

3] The petitioner-wife challenges the order dated 13 th May

2016 made by the Family Court at Bandra rejecting her

application for interim maintenance.

4] Mr. Pai, the learned counsel for the petitioner submits

that the learned Family Court failed to appreciate that the

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petitioner had not suppressed any facts in her application

dated 5th January, 2011 seeking interim maintenance, much

less can it be said that she has suppressed any material facts.

He points out that the petitioner had neither acquired any

interest nor transfered such interest in flat No. 602 at Khar

(Khar flat) as on 5th January, 2011. In any case, Mr. Pai

submits that the petitioner’s name was added to the

agreement for sale along with that of her father and brother

and ultimately the petitioner, gifted her so called interest in

the Khar flat to her brother Vishal Thawani. He submits that

all these facts were completely extraneous to the issue of

maintenance and therefore the learned Family Court erred in

denying the petitioner maintenance on the ground of alleged

suppression of such facts.

5] Mr. Pai submits that the learned Family Court erred in

holding that petitioner had failed to indicate break up of the

expenses claimed by her. He submits that the learned Family

Court also erred in holding that the petitioner being a able

bodied person and a tutor must be presumed to have some

source of income. He submits that the learned Family Court

also erred in simply postponing the issue of interim

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maintenance to the final stage. He submits that the approach

of the learned Family Court in the present matter was entirely

improper and contrary to the well settled principles in matters

of consideration of application for interim maintenance.

6] Mr. Pai submits that the learned Family Court also

erred in observing that since the petitioner did not pursue the

application for interim maintenance, the same could not be

decided for a period of almost 4-5 years since the date of its

inception. On the basis of such observation, which is in fact

contrary to the record, learned Family Court further erred in

inferring that the petitioner is/was capable of earning and did

not require any interim maintenance. Mr. Pai submits that

such approach is completely perverse.

7] Mr. Pai submits the voluminous material on record in

relation to the income of the Respondent-husband has been

ignored by the learned Family Court. The impugned order is

based on the considerations which are not relevant and at the

same time, several relevant considerations which the learned

Family Court was duty bound to take into account, have been

completely ignored. Mr. Pai submits that on the basis of

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material on record and upon considering the life style of both

the parties, the petitioner, is required to be awarded interim

maintenance of Rs. 5 lacs p.m. and learned Family Court

failed to exercise the jurisdiction by dismissing the application

for interim maintenance in its entirety.

8] Mr. Ramani, the learned counsel for the respondent,

defends the impugned order by pointing out that the learned

Family Court has adverted to the correct principles and has

rightly rejected the claim for interim maintenance. He points

out that this was a clear case of suppression of the facts that

the petitioner owned or had interest in a luxury apartment

conservative valued Rs.6 crores and during the pendency of

the proceeding, she transferred such interest in favour of her

brother in order to press her claim for interim maintenance.

Mr. Ramani points out that there is sufficient material which

establishes that the petitioner’s parents are extremely rich

affluent and further even the petitioner has considerable

income of her own as a tutor in French. He submits that all

these relevant facts have been suppressed by the petitioner

and therefore the learned Family Court was entirely justified

in rejecting her claim for interim maintenance. Mr. Ramani

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submits that even if the petitioner had rented Khar

apartment, she could have easily earned income of Rs. 1.50

lakhs p.m. He points out that the petitioner has jewelery

valued Rs. 1 crore or above. He referred the bank account

statement of the petitioner and points out that the petitioner

has not withdrawn any amount from her bank account. On

the basis of all these, Mr. Ramani submits that it is quite clear

that the petitioner has independent sources of income and

therefore, he is not in need of any maintenance or interim

maintenance. He submits that since this is the position, the

issue of respondent’s income is quite irrelevant. He submits

that the respondent has admitted that he has income of 4-5

lakhs p.a. and further submits that the rest of the income/

capital assets which the petitioner claims as being earned/

owned by the respondent, in fact belongs to company and

firm wherein the respondent may have some limited stake. He

submits that there is no infirmity whatsoever in the view

taken by the impugned order and therefore this petition may

be dismissed.

9] Finally Mr. Ramani submits that the interim

maintenance application was filed in the year 2011. If the

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petitioner could survive up-to now without receipt of any

interim maintenance, then, the only legitimate inference to be

drawn is that the petitioner is not in need of any

maintenance, much less any interim maintenance. Mr.

Ramani submits that on this ground also, the petitioner’s

claim for interim maintenance deserves rejection.

10] The rival contentions now fall for determination.

11] From the perusal of the impugned order dated 13th

May, 2016 made by the Family Court at Bandra, it is apparent

that the petitioner’s application for interim maintenance has

been rejected on the following 6 grounds:

(i) Suppression of the transactions in relation to
Khar flat (Para 224 of the impugned order)

(ii) Failure to press the application for interim

maintenance filed on 5th January, 2011 and disposed of

in May, 2016. From this learned Family Court has

inferred that the petitioner was/is capable of earning

sufficient for her needs. (para 5 of the impugned order.

(iii) Failure to give break-up of expenses (para 6 and

7 of the impugned order)

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(iv) The petitioner’s admission that she is a tutor but

failure to disclose her actual income as tutor (para 6

and 7 of the impugned order).

(v) Documents have been produced by both the

parties, and therefore their varsity will have to be

decided after evidence is lead in the matter based on

rival documents, it is not possible to decide the issue of

interim maintenance. (para 7 and 8 of the impugned

order).

(vi) The petitioner is a able bodied person working as a

tutor and therefore she is not entitled to any

maintenance (para 9 of the impugned order).

12] It is necessary to note that the impugned order comprises in

all 9 paragraphs, in which, the learned Family Court has given the

aforesaid 6 reasons for dismissal of the petitioner’s application for

seeking interim maintenance. By way of litigation costs, however,

the learned Family Court has awarded the amount of Rs.10,000/- to

the petitioner.

13] From the perusal of the impugned order, it is apparent that

the main reason for dismissal of the petitioner’s application for

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interim maintenance is the suppression of the particulars in relation

to Khar flat. The application for maintenance was filed on 5 th

January 2011 indeed there is no reference to Khar flat or any

transaction relating to Khar flat. However, the moot question is

whether this amounts to any suppression or in any case material

suppression for the purpose of considering the petitioner’s claim for

interim maintenance.

14] As noted earlier, the application for interim maintenance was

filed by the petitioner only on 5 th January, 2011. As on this date, the

material on record establishes that the petitioner had neither

acquired any interest in Khar flat nor was there any question of the

petitioner transferring her interest in the Khar flat in favour of her

brother. The interest if any was acquired by the petitioner in the

Khar flat vide agreement for sale Dt.17 th March 2011 i.e. 2 months

after filing application dated 5 th January, 2011 seeking for interim

maintenance. The so called transfer of this interest in favour of her

brother vide gift dated 22nd November, 2011, again, much after

filing of application seeking interim maintenance. The Family Court,

was indeed wrong in expecting the petitioner to have disclosed such

particulars in her application dated 5 th January, 2011 and or such

basis rejecting the petitioner’s claim for interim maintenance.

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15] Again it is necessary to note that the rule relating to

disqualification of a litigant from claiming any equitable reliefs on

the ground of suppression of material facts is evolved from the need

of the Court to deter litigants from abusing the process of the Court

or deceiving the Court. Therefore, suppression must be of a material

fact. In the sense, had such fact not been suppressed, the Court, in

all probabilities would have taken out a view of the matter. The

suppression must be of a matter which was material for the

consideration of the Court, whatever view the Court may have

ultimately taken in the matter. The Apex Court in the case of S.J.S.

Business Enterprises (P) Ltd. vs. State of Bihar and ors. – (2004)

7 SCC 166 has explained that it is not as if in and every suppression

will dis-entitle a litigation to relief. The Court has to consider the

issue of suppression in its entirety and not by resorting in

hairsplitting. The Court is also require to consider the explanation

that may be furnished by a party who is alleged to have suppressed

the particulars. If the explanation is bona fide and plausible one,

then, such a party must not be required to face dismissal of his/her

claim.

16] It is necessary to remember that many a times, it is not

parties but their adviser or advocates who decides which documents

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or which particulars may be material or not. The Court has to

therefore examine whether the suppression is deliberate/ mala fide

or intended to abuse the judicial process and deceive the Court. In

the present case all such relevant consideration do not appear to

have been taken into account by the learned Family Court.

17] The agreement for sale dated 17th March, 2011 by

which the petitioner is alleged to have acquired interest in the Khar

flat very clearly indicates the name of her father and brother in

addition to her name as the proposed purchaser of the Khar flats.

Mr. Ramani’s contention that since notice of demand or notice for

payment of taxes hae been addressed only to the petitioner, it must

be presumed that the petitioner is the sole owner of the Khar flat,

deserves no acceptance. In such matters, it is not unreasonable to

proceed on the basis of such notices which are normally issued to a

person whose name appears first on the agreement for sale or the

total document as the case may be. It is by itself is not determinative

or interest in such matters.

18] Mr. Pai, learned counsel for the petitioner has explained

that the Khar flat was in fact agreed to be purchased by the

petitioner’s father and brother since the petitioner had no

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independent source of income. He points out that ultimately, the

petitioner vide gift deed dated 22 nd November, 2011 has transferred

whatever limited interest she may have in the Khar apartment in

favour of her brother. There was no monetary consideration as such

involved in the transaction. Therefore, the petitioner and her

advocate did not deem it necessary to refer to the transactions in

relation to Khar flat in the proceeding seeking interim maintenance.

Mr. Pai points out that since the transactions were post 5 th January,

2011 there was no question of any reference to such transactions in

the application dated 5th January, 2011. At the prima facie stage

such explanation could not have been rejected as malafide in the

facts and circumstances of the present case. Learned Family Court

has not even adverted such explanation much less rejected the same

on any cogent ground. It is pertinent to note that this is not even

allegation of the respondent that Khar flat was in fact rented out

and the petitioner deprived herself of the rent from the Khar flat by

gifting the same in favour of her brother. Only the allegation is that

Khar flat could have been rented out and since this was not done,

the petitioner is dis-entitled to any interim maintenance. However,

this was clearly not a case whether the petitioner’s claim for interim

maintenance could have been rejected on the ground of suppression

of material particulars.

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19] The impugned order notes that gift deed dated 22 nd

November, 2011 was executed by the petitioner despite knowledge

that on 18th November, 2011 the respondent had taken out

application seeking a restraint on the alienation of Khar flat and this

circumstance is also held against the petitioner for denial of interim

maintenance. Again, such circumstance, is neither borne from the

record nor can it be said that such a circumstance was relevant for

denial of interim maintenance to the petitioner. The case of the

petitioner is that she was not present in the Court on 18 th November,

2011 when application is taken out restraining alienation. There is

no material on record to establish that the petitioner was indeed

present or otherwise had any knowledge about such application.

Besides, admittedly, as on 22nd November, 2011 there was no

injunction or restrain order to restrain the petitioner alienating the

Khar flat by way of gift deed in favour of her own brother. Learned

Family Court was therefore not justified in taking into account this

circumstance, in denial of interim maintenance to the petitioner.

The reasoning in paragraph 2 to 4 of the impugned order cannot be

sustained and is required to be set aside in the facts and

circumstances of the present case.

20] The second reason in the impugned order for denial of

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interim maintenance to the petitioner is equally untenable. It is true

that the petitioner filed her application for interim maintenance on

5th January, 2011 and that the same was ultimately disposed of by

an order dated 13th May, 2016. However, this does not mean that

the petitioner was in any manner responsible for the delay of 5 years

in the disposal of her interim application. There is nothing on record

to indicate that the petitioner herself delayed the decision on her

interim maintenance application. The inference drawn by the

learned Family Court of the delay in the disposal of application for

interim maintenance is quite perverse. The learned Family Court

was not at all justified in inferring that such delay is indicative of the

fact that the petitioner was/is capable of earning sufficient for her

needs and therefore, was not in need of any interim maintenance.

The second reason for denial of interim maintenance to the

petitioner is thus quite untenable and warrants interference.

21] The third reason is that the petitioner had allegedly

failed to indicate a break-up of her expenses while claiming interim

maintenance of Rs. 5 lakhs p.m. This is contrary to records. In para

13 of the application seeking maintenance, the petitioner has

actually given break-up of the expenses. In any case, the application

seeking interim maintenance has to be considered in its entirety.

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The petitioner has given sufficient indication not only as regards her

own financial status but also financial status of the respondent. The

petitioner has given sufficient indication about life style to which the

parties were accustom as well as matrimonial. The petitioner has

given sufficient indication as regards the capital as well as non

capital assets owned by the respondent and as also stated broadly

the reasons as to why she has claimed interim maintenance of Rs. 5

lakhs p.m. The question as to whether all such pleadings have to be

accepted or not is different matter. However, the learned Family

Court was not at all justified in simply rejecting the petitioner's

claim for interim maintenance on the basis that the petitioner had

failed to give a break-up of the expenses. The third reason in respect

of the impugned order is also entirely untenable.

22] The fourth reason in the impugned order for denial of

interim maintenance to the petitioner is that the petitioner admitted

that she was a tutor but failed to disclose her income as tutor. The

Petitioner had indicated that she was a tutor and produced on

record some statement of her income. This factor is no doubt

required to be considered when determining the quantum of interim

maintenance. However, it cannot be said that there was any failure

to disclose the income and on such ground the petitioner's claim for

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interim maintenance warranted a denial for its entirety.

23] The fifth reason is entirely untenable. The issue of

interim maintenance is required to be decided in summary manner

on basis of documents if available or otherwise on the basis of

legitimate inferences which can be drawn from the circumstances

placed on record by both the parties. The Family Court has not even

adverted to the documents placed on record by both the parties but

merely observed that the documents can be looked into only after

their veracity is tested in trial. This is not at all correct approach for

dealing with application for interim maintenance. Therefore, even

fourth reason for taking interim maintenance to the petitioner is

untenable.

24] The last reason is that the petitioner is a able bodied

person and working as tutor. No doubt, this may be one of the

circumstance for determining the quantum of interim maintenance

but this is not a circumstance for denial of interim maintenance

altogether. In the facts of the present case, the learned Family Court

has not even bothered peruse the material on record and to decide

the issue of the life style of the parties were accustomed to before

their relationship was strained. Therefore, even sixth reason for

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denial of interim maintenance to the petitioner is not untenable in

the facts of the present case.

25] The impugned order is thus required to be set aside on

the ground that the dismissal of the application for interim

maintenance is based upon the ground or reasons which are found

to be untenable. Ordinarily, this would call for remand. However,

considering the fact that the entire material is on record before this

Court and the issue is only of interim maintenance, a remand will

not be appropriate. In fact neither of the parties even suggested

remand. As it is the application for interim maintenance filed in the

year 2011 and from that date onwards, the petitioner is not in

receipt of any interim maintenance, therefore, it will be only

appropriate that the issue of interim maintenance is decided at the

stage and in these proceeding.

26] The material on record will have to be appreciated in

the context of statutory provisions as interpreted by various Courts.

Therefore, the reference to some precedents will be appropriate at

this stage itself.

27] In Manish Jain vs. Akanksha Jain - AIR 2017 SC

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1640, the Apex Court has held that an order for maintenance

pendente lite or for costs of proceedings is conditional on

circumstance that wife or husband who makes a claim for same has

no independent income sufficient for her or his support or to meet

necessary expenses of the proceeding. In this case, the Apex Court

has clearly held that it is no answer to a claim of maintenance that

wife is educated and could support herself. Likewise, financial

position of wife's parents is also immaterial. The Court must take

into consideration status of parties and capacity of spouse to pay

maintenance and whether applicant has any independent income

sufficient for her or his support. Maintenance is always dependent

upon factual situation. The court should, therefore, mould claim for

maintenance determining quantum based on various fctors brought

before Court.

28] In Bharat Hegde vs. Smt. Saroj Hegde - AIR 2007

Delhi 197, the Delhi High Court has held that the focus of enquiry

at the stage of considering the application for interim maintenance

has to be means of applicant has to be means of applicant spouse to

maintain himself or herself as also financial means of non-applicant

spouse from whom maintenance have been claimed. The issue of

conduct or misconduct of either spouse is irrelevant. As, in

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proceedings for divorce, dissolution or judicial suppression, there

are bound to be allegations and counter allegations. If such

allegations and counter allegations are to be considered, then it will

be difficult to proceed with the determination of interim

maintenance. The enquiry at this stage is a summary enquiry not

involving any trial at length. Maintenance is an incident of the status

from an estate of matrimony. While considering claim for interim

maintenance, the Court has to keep in mind the status of the parties,

reasonable wants of the applicant, the income and property of the

applicant. Conversely, requirements of the non-applicant, the

income and property of the non applicant and additionally the other

family members to be maintained by the non-applicant have to be

taken into consideration. Whilst it is important to ensure that

maintenance awarded to the applicant is sufficient to enable the

applicant to live in somewhat the same degree of comfort as in the

matrimonial home, but it should not be so exorbitant that the non-

applicant is unable to pay. Award of interim maintenance cannot be

punitive. It should aid the applicant to live in a similar life style

she/he enjoyed in the matrimonial home.

29] The Delhi High Court in Bharat Hegde (supra) culled

out from various judicial precedents, the following 11 factors which

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ought to be taken into consideration whilst deciding the claim for

interim maintenance:

"1. Status of the parties.

2. Reasonable wants of the claimant.

3. The independent income and property of the
claimant.

4. The number of persons, the non applicant has to
maintain.

5. The amount should aid the applicant to live in a
similar life style as he/she enjoyed in the matrimonial
home.

6. Non-applicant's liabilities, if any.

7. Provisions for food, clothing, shelter, education,
medical attendance and treatment etc. of the applicant.

8. Payment capacity of the non applicant.

9. Some guess work is not ruled out while estimating
the income of the non applicant when all the sources or
correct sources are not disclosed.

10. The non applicant to defray the cost of litigation.

11. The amount awarded under S.125 Cr.PC is
adjustable against the amount awarded under S.24 of the
Act."

30] The Delhi High Court also rejected the contention that

the capital assets of the parties are irrelevant at the stage of

consideration of application for interim maintenance. The Delhi

High Court also held mere reliance on income tax returns is not

sufficient. Prudence and worldly wisdom gained by a Judge before

whom citizens of all stratas of society litigate it can always be used

by a Judge to broadly ascertain as to what is going on in the society,

though such knowledge can be never be used where law requires a

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fact to be conclusively proved, but the same, along with host of

other factors can be used in such matters.

31] In Jasbir Kaur Sahgal vs. District Judge, Dehradun -

AIR 1997 SC 3397, the Supreme Court has held that no set formula

can be laid for fixing the amount of maintenance. It has, in the very

nature of things, to depend on the facts and circumstances of each

case. Some scope for leverage can, however, be always there. The

Court has to consider the status of the parties, their respective

needs, the capacity of the husband to pay having regard to his

reasonable expenses for his own maintenance and of those he is

obliged under the law and statutory but involuntary payments or

deductions. The amount of maintenance fixed for the wife should be

such as she can live in reasonable comfort considering her status

and the mode of life she was used to when she lived with her

husband and also that she does not feel handicapped in the

prosecution of her case. At the same time, the amount so fixed

cannot be excessive or extortionate.

32] In Anamika Banka vs. Nawal Banka @ Nawal Kishor

Banka - 2009 (4) PLJR 342 , the Patna High Court has held that in

determination of interim maintenance, the Court has to taken into

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consideration the standard of living and status which the spouse

claiming maintenance was enjoying prior to the institution of the

matrimonial case. The Court has to direct balance between standard

of living of both Respondent-wife and to ensure that the standard of

living for the wife is secure during the pendency of the matrimonial

case.

"5. .....................It has to be noted that when the
wife-petitioner had set out her case in her application
under Section 24 of the Hindu Marriage Act seeking ad-
interim maintenance, she had definitely indicated of
being habituated and accustomed to certain standard of
living and status which she was enjoying prior to the
filing of the matrimonial case. Those facts were not even
controverted by the husband-opposite party in his written
statement to the said application. In fact, the plea of the
husband-opposite party of the wife-petitioner having
sufficient means was also raised in a vague manner by
referring to or relying certain documents. The court below
also did not examine the issue with all its pros and cons
and had merely proceeded on an assumption that the
moment there was Something to show that the wife-
petitioner had her own income it was sufficient for her to
be denied any amount of maintenance by the husband-
opposite party. Such is not the concept of Section 24 of
the Hindu Marriage Act. As noted above, the Court has to
strike a balance between the standard of life of both the
husband and the wife and has to ensure that such
standard of life for the wife is secured during the
pendency of the matrimonial case. This having been not
done, this Court cannot approve the reasonings in the
impugned order.

33] The aforesaid principles will have to be applied in the

present case in order to appreciate the material on record and the

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issue as to whether the petitioner is indeed entitle to any interim

maintenance and if so, the quantum of the interim maintenance.

34] The petitioner in her application dated 5 th January,

2011 seeking maintenance has indicated the reasons as to why she

is entitled to interim maintenance. She is pointed out that the

respondent indulged in cruelty and forced out the petitioner from

the matrimonial home. The respondent-husband has also made

allegations against the petitioner. At this stage, it will not be

appropriate to adjudicate upon such allegations and counter

allegations because by and large they are not very relevant for

deciding the issue of interim maintenance.

35] The petitioner has accepted that she earns some amount

working as tutor. However, she has pleaded to the life style which

she was used to along with the respondent before their relationship

was strained can not even remotely be maintained on her income.

In particular she has made detailed averments as regards the

income, wealth and life style of the respondent-husband. This is

evident from the averments in para 5 to 9 of the application seeking

maintenance which read thus:

"5. This Respondent submits that the Petitioner is filthy

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rich person having he luxurious apartment of 1500 sq.ft.
Consisting of 3 bedroom Hall Kitchen at the address
mentioned in the cause title. He is the only son having a
married sister. The abovesaid Apartment is provided with
the Air-conditioners like Daikin and O General. The
abovesaid residence of the Petitioner is loaded with the
LCD TVs, Music Systems from Sony. The bedrooms are
provided with music systems and separate televisions
having the facility of home theater. There are two
refrigerators for storing different kinds of food. The
Petitioner is having four cars - Honda City, Esteem Swift
and Zen from Maruti. The abovesaid residence of the
Petitioner is having the washing machines, air coolers. The
Petitioner holds two cell phones - Nokia N72 and HTC
bearing Nos. 982106490 and abroad no, while his mother
also holds one cell phone of Nokia bearing Nos.
9821031398 ----. The Petitioner recently purchased one
Blackberry. The Petitioner holding major Gold Credit
Cards from HSBC, American Express, City Bank etc.
having very high limit, which is maintained fro years
together.

6. The Respondent further submits that the Petitioner
is having the landed property of the following description:

a) 33.33% Stake in the premises of approx. 4000
sq.ft. in Mittal Court - 2 diagonally opposite to Inox
Theater, Nariman Point, Mumbai. The Petitioner and his
family has leased the said premises to Development Credit
Bank Ltd. For a period of 5 years.

b) The Petitioner is having the premises in the
basement of approx. 2000 sq.ft. below the abovesaid
premises leased to the Development Credit Bank Ltd. in
Mittal Court-2 which is used by the Petitioner and his
family for godown of their firm, Bombay Electrical
Projects and supplies.

c) 30% share in the premises of 2000 sq.ft. and
profits being the partner in Rajkamal Industrial Premises
at Kandivali, Mumbai.

d) The Petitioner and his family's firm namely,
Bombay Electrical Project and Supplies at Laxmi
Industrial Estate, Andheri Link Road, Mumbai is having

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the business in approx 2500 sq.ft. area and is known as
one of the best firms providing electrical fittings.

e) There were residential premises of 1100 sq.ft. of
the Petitioner and his family in Crystal Building at 16 th
Road above Cammy Wafers, Khar Mumbai 400 052
which is sold for a sum of Rs. 1,07,00,000/- because of
some astronomical advise.

7. The Petitioner is having a business in Electrical
Fittings and recently successfully completed the Electrical
fittings in the projects of the Five Star Hotel properties -
J.W. Marriott (Mumbai), Taj (Goa), Holiday - Inn
(Goa), Four Seasons (Mumbai), Rennissance (Powai,
Mumbai), Novotel (Juhu, Mumbai) International
(Marine Drive, Mumbai), Sahara Star (Santacruz
Domestic Airport, Mumbai) and Tunga ( New Bombay).

8. This Respondent submits that the Petitioner for the
business tours files, opts for the airlines like Kingfisher
and Jet by Executive Class and mostly travels to Delhi,
Chnnai, Goa, Hyderbad. The Petitioner also attends the
exhibitions every year at Germany, Spain, China, Hong
Kong, Valencia and other destinations. He opts for the
flights and accommodations providing five star facilities
and carries two laptops one of Dell Company and other of
Sony Vio.

9. The Petitioner uses the Rolex watch and the pens
from Mount blank. The Petitioner and his family do not
believe any other clothes than the designers and always
use the branded jewellery and other accessories. The
Petitioner provides the return Airtickets to his sister for
her each trip to Mumbai and gifts her valuables and
jewellery on every visit.

36] In para 13 of the application seeking maintenance, the

petitioner has given the break-up of the expenses and the basis why

she claims interim maintenance of Rs. 5 lakhs per month. It is

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apparent that this para was not even adverted to by the learned

Family Court before making the impugned order. The averments in

para 13 read thus:

"13. In the facts and circumstances stated hereinabove,
the Petitioner has dragged the Respondent to face the
unwanted, unwarranted litigation. The petitioner has
failed to provide any maintenance to this Respondent,
though he is knowing and well aware that this
Respondent is not able to maintain herself and he is
under moral and legal obligation to maintain this
Respondent. Taking into account, the standard of living
the Petitioner enjoys, this Respondent is entitle for a sum
of Rs.5 lakhs per month towards her maintenance for her
clothes, accessories, medical assistance, gym for physical
fitness and other requirements. This Respondent is also
required the residential premises as the Petitioner has not
only driven her out of the matrimonial home, but also
initiated the proceedings through his mother under the
provisions of Protection of Women from Domestic
Violence Act, 2005 against this Respondent to harass and
torture her as well as the present Petition and thus, is
refusing and neglecting the shelter to this Respondent.
Thus, this Respondent is also entitled for separate
residential premises of minimum 1 Bedroom Kitchen Hall
of 550 sq.ft. from the Petitioner. This Respondent is also
entitled for the expenses from the Petitioner for defending
the litigations initiated by him against this Respondent in
this Hon'ble Court as well as before the learned
Metropolitan Magistrate's Court at Bandra, Mumbai and
for the said purpose, this Respondent will require
minimum Rs.5 lakhs."

37] The petitioner in respect of the averments in her

application seeking interim maintenance has produced several

documents on record. It is true that it is too early to make any final

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observations or inferences which flow from such documents.

However, such documents are required to be considered for the

purpose of drawing prima facie inference at least. The learned

Family Court by not even adverting to any of the documents clearly

failed to exercise jurisdiction vested in it. The consideration of such

documents, no doubt, on prima facie basis could not have been

postponed on the ground that the veracity of the documents is

required to be determined after trial.

38] The respondent in his reply to the application for

interim maintenance, chose to deny everything without bothering to

state anything. By way of illustration reference can be made to the

averments in para 4(e) to 4(h) of the response to the reply which

read as follows:

e) With reference to para 5, I deny that I am having
luxurious apartment of 1500 sq.ft and I further deny of
heaving so much luxuries at home. I deny that I have four
cars, two cell phones, One Blackberry Cell phone etc.,
Credit Cards of different banks. I deny the rest of contets
of this para. I say that I am residing along with my
mother in her flat and we have basic necessities at home
like TV, fridge, A/c and one cell phone. I have one
married sister and she is residing along with her family
and in-laws at Bangalore. I say that my father was on
bed from last eight years and he expired on 07/01/11.

f) With reference to para 6, I deny that I have any
landed properties mentioned therein.

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g) With reference to para 7,8,9 and 10 I deny the
contents therein.

h) With reference to para 11, I deny the contents therein,
I deny that I am earning Rs. 20 lakkhs per month and
therefore there is no question of disclosing of that income
which I do not earn in my Income-Tax return. I don't
have high income and independent business. The
Respondent has purposely with malafide intention of
extorting maximum amount from me has imagined and
stated false story here. I am not the son of Tata or Birla
Industrialist but a middle class man doing service with
Bombay Electricals and earning approximately
Rs.20,000/- per month. The Respondent is well aware of
it. I ahe to meet my personal expenses and look after my
old mother's medical expenses and maintain her. My
mother is 72 years old and I have one married sister"

39] The perusal of the documents on record indicate that

the income of the respondent is certainly not Rs. 20,000/- p.m. as

has been incorrectly stated in the reply. The petitioner is a Director

of Bombay Electrical Projects Supplies (I) Pvt. Ltd. established

several decades ago. The petitioner is also a partner in a partnership

firm functioning under the name and style of "Sterling Luminaires".

This firm is in the business of manufacture and trading of electrical

fittings, goods and also act as agents, distributors for various types

and varieties of electrical fittings and goods. The respondent has

considerable stake in these concerns. From the evasive nature of

denial, it is apparent that there is some truth in the various details

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placed on record by the petitioner. In the context of the respondent's

luxurious life style, which is reflected from the material placed on

record, it is not possible to accept that the income of the respondent

is only Rs. 4 to 5 lakhs p.a. The respondent, will easily being in a

position to pay interim maintenance of Rs. 1 lakh p.m. to the

petitioner. However, since the petitioner earns Rs. 25,000/- to

30,000/- p.m as a tutor in French, it will be reasonable if the interim

maintenance is determined as Rs. 75,000/- p.m.

40] The learned counsel for the respondent may be right in

submitting that the respondent has jewelery which can be valued

about one crore or above. However, that by itself is no reason to

deny the petitioner interim maintenance. Surely, the respondent

cannot expect that the petitioner lives by selling her jewelery. So

also the bank account statement indicate the balance of few

thousands of rupees and therefore, no adverse inference can be

drawn on the basis of such account have not been operated by the

petitioner for some time. The petitioner, has no doubt, claimed

interim maintenance @ Rs. 5 lakhs per months. Such claim in the

fact and circumstances of the present case cannot be considered

primarily because at this stage, we are not dealing with the issue of

final alimony or maintenance but only the issue of interim

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maintenance. In the facts of the present case, interim maintenance

of Rs. 75,000/- p.m will be legitimate, particularly since the award

will have to be from the date of the application i.e. 5 th January,

2011.

41] The petitioner, in her application seeking maintenance

had made detailed averments as regards the luxurious life style of

the respondent. The respondent, as pointed earlier, has, apart from

evasive denials has not produced any material on record to rebut

such averments. For example the petitioner could have disclosed

about his residencies. The petitioner could have placed on record his

credit card statements or his passport details to rebut the averments

in para 5 to 10 of the application for interim maintenance. The

respondent has done nothing of this and yet the respondent expects

the Court to believe that his income was only Rs. 20,000/- p.m or

Rs. 4 to 5 lakhs p.a. Such stand has been taken by the respondent

only to avoid the liability for the payment of interim maintenance.

42] The details from the Registrar of Companies itself bear

out that the respondent is a Director and has considerable share

holding in the family concern, which is in the business for last

several decades. All these circumstance, have not been looked into

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by the learned Family Court whilst making the impugned order.

43] From the material on record, the contention of the

respondents that the petitioner as a tutor in French must be earning

Rs. 30,000/- p.m in the facts of the present case can be accepted.

However, taking into consideration the life style, the parties were

accustomed to, surely, such earning will not dis entitle the petitioner

to claim additional amounts by way of interim maintenance. As

noted earlier the circumstance, that the petitioner's parents are rich

and affluent is an irrelevant circumstance, when it comes to

deciding petitioner's claim for interim maintenance. The respondent

therefore cannot deny the petitioner's interim maintenance on the

ground that her parents are rich and affluent or that her parents are

in a position to maintain her. Primary duty of maintenance is that of

respondent-husband and the same cannot wished away on the basis

of such considerations.

44] The ruling in the case of Mamta Jaiswal vs. Rajesh

Jaiswal, (2000) DMC 170 relied by Mr. Ramani turns on its own

facts. The ruling does not say that the moment the wife has some

independent income, her claim for interim maintenance must be

rejected. The independent income must no doubt be taken into

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consideration whilst determining the quantum of interim

maintenance. However, it is not correct to say that the moment the

wife has some income, the claim for interim maintenance must be

rejected.

45] Therefore, on cumulative consideration of all such

factors, the Petition is disposed of with the following order:

(i) The impugned order dated 13th May, 2016 made by the

learned Family Court at Bandra is set aside.

(ii) The respondent is directed to pay the petitioner the interim

maintenance at the rate of Rs. 75,000/- p.m. with effect from 5 th

January, 2011 on or before fifth day of each succeeding month.

(iii) The petitioner to indicate the details of her bank account to

the respondent and thereupon the respondent to arrange to deposit

of Rs. 75,000/- p.m by way of interim maintenance to the petitioner

on or before 5th day of each succeeding month.

(iv) The respondent to deposit the arrears towards maintenance in

the petitioner's bank account as aforesaid within a period of two

months from today.

(v) The respondent to also pay the cost of Rs. 50,000/- to the

petitioner within a period of two months from today.

(vi) The rule is made absolute to the aforesaid extent.

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46] It is clarified that none of the observations in the

impugned order or for that matter in the present order need

influence the learned Family Court while deciding the issue of final

maintenance. The issue of final maintenance will have to be decided

on the basis of evidence which the parties will lead before the

learned Family Court and on its own merits and in accordance with

law.

(M. S. SONAK, J.)

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