—
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
I.A. NOS. 59776 AND 60354 OF 2021
IN
CIVIL APPEAL NO. 2634 OF 2017
JAIDEV RAJNIKANT SHROFF …APPELLANT(S)
VERSUS
POONAM JAIDEV SHROFF …RESPONDENT(S)
ORDER
B.R. Gavai, J.
1. These two interlocutory applications filed by the
respondentwife are part of series of a long drawn
acrimonious litigation between the husband and wife.
2. For the disposal of the present interlocutory
applications, we need not refer to the facts in detail. Suffice
it to say that the appellanthusband and the respondentwife
were married to each other on 27 th November 2004. However,
the relationship between them soured. Various cases
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including the FIRs were filed by both the husband and wife
against each other.
3. The appellanthusband filed a divorce petition being
Petition No. A2742 of 2015 before the Family Court at
Bandra, Mumbai (hereinafter referred to as the “Family
Court”) seeking divorce on the ground of cruelty. The same
was filed in the month of October 2015. During the
pendency of the said divorce petition, the appellanthusband
lodged a complaint against the respondentwife with the
Khar Police Station, making certain serious allegations
against the respondentwife. On the basis of the said
complaint, an FIR being FIR No. 169 of 2016 came to be
registered by the said police station. It is the contention of
the appellanthusband that after the said FIR was lodged,
the respondentwife voluntarily left 82, Pali Hill, Bandra
(West), Mumbai – 400 050 (hereinafter referred to as the
“said house”), wherein the appellanthusband and the
respondentwife were residing together. According to the
appellanthusband, the respondentwife along with their
daughter Rudritara went to 38, Pali Hill, Bandra, i.e., her
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mother’s residence. The appellanthusband thereafter filed
an application seeking an order of injunction restraining the
respondentwife from entering the said house. The Family
Court vide order dated 22nd April 2016, allowed the said
application, thereby granting an injunction restraining the
respondentwife from entering the said house. Being
aggrieved by the order passed by the Family Court dated 22 nd
April 2016, the respondentwife filed a writ petition being
Writ Petition No. 6029 of 2016 before the Bombay High
Court. Vide order dated 24th October 2016, the High Court
allowed the said writ petition filed by the respondentwife.
Being aggrieved thereby, the appellanthusband has
approached this Court. That is how the main appeal has
travelled up to this Court.
4. Initially, when the matter came up before this Court on
15th November 2016, this Court issued notice only to explore
the possibility of an amicable resolution of the dispute.
However, this Court in its order dated 27th January 2017,
recorded that the settlement between the parties, at that
stage, was not possible. This Court, therefore, enlarged the
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scope of the notice issued by this Court vide the said order
and expressed that they were inclined to examine the
impugned order of the High Court of Bombay on merits. Vide
the said order, this Court also passed an order directing the
parties to maintain status quo.
5. When this matter was listed before this Court on 14 th
September 2017, this Court recorded that without prejudice
to the rights and contentions of the parties in the present
proceedings, the parties are agreeable to explore the
possibility of an amicable resolution of their dispute. As
such, by consent, Mrs. Sadhna Ramachandran, Advocate
was appointed as a Mediator. It further appears that in order
to explore the possibility of amicable settlement, this Court
vide order dated 22nd January 2018, directed the parties to
remain present in person on 30th January 2018 at 02.00 pm.
The order of this Court dated 30th January 2018 would reveal
that this Court had discussed the matter in Chambers with
the parties to find out some amicable resolution and a week’s
time was granted to the parties to think over to come to an
amicable resolution. However, vide order dated 13 th
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February 2018, this Court recorded that there is no
possibility of an amicable settlement between the parties.
6. This Court, again on 21st August 2018, recorded that
the matter needed to be resolved through mediation. This
Court, therefore, appointed Shri Sriram Panchu, Senior
Advocate, as a Mediator to mediate the dispute between the
parties. Vide the said order, this Court also stayed all the
criminal proceedings pending between the parties.
7. Shri Sriram Panchu, the learned Mediator submitted
his report on 19th February 2019, stating therein that the
differences between the parties were too wide and it was not
possible to resolve the matter at that stage. Hence, he filed
the closure report. Further report of the Mediator dated 12 th
April 2019, would reveal that by email dated 25 th March
2019, counsel for the respondentwife has informed him that
while adjourning the matter by four weeks, this Court had
issued an oral direction to the parties to appear once more
before the Mediator. The report further revealed that,
however, both the parties by self/through counsel have
expressed the view that there is no point in continuing with
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the mediation. In the circumstances, vide the said report
dated 12th April 2019, the learned Mediator has observed
that the mediation cannot be carried on and was therefore
closed.
8. On 30th January 2020, this Court passed the following
order:
“Heard.
Mr. P. Chidambaram and Mr. Shyam Divan,
learned Senior Counsel appearing for the
respondent Poonam Jaidev Shroff, state that the
respondent Poonam Jaidev Shroff will locate
rented premises of her choice which shall be
equivalent to the residence at 82, Pali Hill,
Bandra (West), Mumbai – 400 050, for her
residence.
Dr. A.M. Singhvi, learned Senior Counsel
appearing for the appellant–Jaidev Rajnikant
Shroff, states that the appellant 3 Jaidev
Rajnikant Shroff will pay the rent for the said
premises.
It is understood that this arrangement will
at the moment continue till the disposal of the
pending divorce petition.
Mr. P. Chidambaram and Mr. Shyam Divan,
learned Senior Counsel appearing for the
respondent, prays for time to make a statement
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regarding the disposal of the divorce petition
pending in the Family Court at Bandra, Mumbai.
List these matters on 26.02.2020 (a non
miscellaneous day).”
9. Again, when the matter was listed before this Court on
6th March 2020, this Court passed the following order:
“We have heard the question of respondent
wife’s accommodation at length.
We are of the view that in the circumstances
of the case, the interests of justice would be best
served if the Registrar of the Family Court at
Bandra, Mumbai, is directed to engage an
architect from the panel of architects maintained
by the Bombay High Court for finding out
appropriate accommodation for the residence of
the respondent – wife.
It is made clear that the residence shall be
approximately similar to the size of 82, Pali Hill,
Bandra (West), Mumbai – 400 050 and located as
far as possible in Bandra and Juhu area.
After such accommodation is located, the
Registrar shall submit a report forthwith to this
Court pointing out the location of such
accommodation along with rent so as to enable
this Court to pass further orders. We further
direct that if the accommodation is approved, the
petitioner – husband shall regularly pay such
rent to the landlord of the tenanted premises.
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List these matters after two months.”
10. Pursuant to the aforesaid orders passed by this Court,
Smt. Kishori Joshi, Architect, Valuers and Engineers was
engaged by the Registrar of the Family Court. On 3rd
February 2021, Smt. Joshi submitted a list of the properties,
which in the architect’s opinion were similar to the said
house. The communication dated 3 rd February 2021 would
reveal that in the architect’s opinion, the properties listed
were outcome of their best efforts to provide a suitable
accommodation to the respondentwife as per her liking and
will. As many as 17 properties have been listed in the list
sent along with the communication dated 3rd February 2021.
However, vide communication dated 10 th February 2021, it
was informed on behalf of the respondentwife that none of
the properties shown in the list were similar to the said
house.
11. In this background, the respondentwife has
approached this Court with the two interlocutory
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applications. The prayers in I.A. No. 60354 of 2021, read
thus:
(a) “allow the present application and vacate
the interim order dated 27th January 2017
passed by this Hon’ble Court in the
aforesaid appeal and permit the Respondent
and the minor child to reside in the
matrimonial home;
(b) allow the present Application and dismiss
the SLP(Civil) No. 32264 of 2016 converted
into Civil Appeal No. 2634 of 2017;”
12. The prayers in I.A. No. 59776 of 2021, read thus:
a) “clarify the order dated 06.03.2020 allow the
Respondent and the minor daughter to
forthwith move into 82 Pali Hill (matrimonial
Home) and the Respondent be paid an amount
of Rs. 75.26 Lakhs per annum for the staff of
the matrimonial home and maintenance as per
actuals along with arrears for living outside the
matrimonial home @ Rs. 35.37 Lakhs per
month from 07.04.2016 till the date of passing
of the Order;
b) In the alternative, clarify the order dated
06.03.2020 an amount of Rs 35.37 Lakhs
per month be paid to the Respondent which is
the monthly rent amount of the matrimonial
home along with cost of running maintaining
the premises as per actuals and the arrears
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from 07.04.2016 till the date of passing of the
Order.”
13. We have heard Shri Shyam Divan, learned Senior
Counsel appearing on behalf of the applicantrespondent wife
and Dr. Abhishek Manu Singhvi, learned Senior Counsel
appearing on behalf of the nonapplicantappellant husband.
14. Shri Divan submitted that though the respondentwife
has succeeded before the High Court, on account of the
status quo order passed by this Court, the respondentwife is
deprived of staying in the said house, which is the shared
household as contemplated under Section 2(s) of the
Protection of Women from Domestic Violence Act, 2005
(hereinafter referred to as the “DV Act”). He submitted that
the appellanthusband is earning hundreds of crores per
year, whereas the respondentwife and the daughter
Rudritara have to survive on a meagre amount of Rs. 12
lakhs per month.
15. Shri Divan further submitted that this Court had
directed an architect to be appointed by the Family Court to
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find out a house similar to the one, wherein she was residing
with her husband. He submitted that the properties
suggested by the architect, by no stretch of imagination,
could be said to be houses, which are similar to the said
house. He submitted that on one hand, the respondentwife
is compelled to stay with her aged mother, whereas on the
other hand, the appellanthusband is residing in the shared
household with a lady with whom he is engaged in an
adulterous relationship. He submitted that the appellant
husband has been emboldened on account of the status quo
order passed by this Court and has entered into an
adulterous relationship with a lady and also fathered a child
in the said relationship. It is submitted that the appellant
husband is making all efforts to move into the matrimonial
house with his mistress and as such, has abused the process
of the court and manipulated legal process in filing fabricated
petition.
16. Shri Divan therefore submitted that taking into
consideration the conduct of the appellanthusband, the
order of status quo granted by this Court needed to be
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vacated. He submitted that in the alternative, since the
respondentwife was compelled to reside with her husband,
the order dated 6th March 2020 needed to be clarified that
the respondentwife and the minor daughter be permitted to
move to the said house and the appellanthusband be
directed to pay an amount of Rs.75.26 lakhs per annum for
the staff at the matrimonial home and maintenance as per
actuals along with arrears. He submitted that in the
alternative, it is necessary to clarify the order dated 6 th March
2020 and direct an amount of Rs.35.37 lakhs to be paid to
the respondentwife by the appellanthusband, which was a
monthly rent of the matrimonial home along with the cost of
running and maintaining the premises as per actuals and
the arrears from 7th April 2016.
17. Dr. Singhvi, learned Senior Counsel appearing on behalf
of the appellanthusband, on the contrary, submitted that
the present applications are an attempt to seek a review of
the order passed by this Court, which has been passed after
hearing the parties. He submitted that the appellant
husband is willing to pay the rent for the premises, if the
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suitable premises is chosen by the respondentwife and she
shifted her residence to the said premises. However, the
present applications are an attempt to get much more
amount than to which the respondent wife has been found to
be entitled by an elaborate order passed by the Family Court
dated 30th July 2018. He submitted that the respondentwife
herself is a rich lady having huge properties, having income
more than sufficient to sustain herself. He submitted that,
however, the respondentwife is trying to take an undue
advantage of the fact that the appellanthusband is a rich
person. He submitted that the entire conduct of the
respondentwife would show that she has been unreasonable
and adamant. He submitted that the order dated 30th
January 2020 passed by this Court, would itself clarify that
the respondentwife had made a statement that she will
locate a rented premises of her choice, which shall be
equivalent to the said house. The appellanthusband had
also expressed his willingness to pay the rent for the said
premises. By another order dated 21st August 2018, this
Court had directed an architect to be appointed from the
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panel of Architects, maintained by the Bombay High Court.
Accordingly, an architect was appointed by the Registrar of
the Family Court, who has identified as many as 17
properties. He submitted that it is impossible to find out a
property, which can be found to be identical with the said
house. He, however, submitted that the properties, which
have been identified by the architect, are similar in terms of
the facilities and luxuries, as are available in the said house.
18. Dr. Singhvi further submitted that though the
appellanthusband has offered an amount of Rs.100 crore as
a onetime settlement, the respondentwife has refused the
said offer and has demanded an amount of Rs.600 crore.
19. Though the appellant and respondent have made
serious allegations against each other, we do not find it
necessary to go into those allegations. A perusal of the record
would reveal that the relations between the parties are
strained to such an extent that even the efforts made by this
Court to arrive at a settlement by personally discussing the
matter in Chambers with them, have failed. On two
occasions, this Court has appointed Mediators, who were
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Advocates. However, the mediation proceedings could not
succeed. In such a situation, to compel the parties to live
together in one house, would not be in the interest of either
of the parties. With the history of such acrimony and filing
of criminal cases against each other, such an order, rather
than benefiting the parties, would be detrimental to their
interests.
20. The order passed by this Court dated 30 th January
2020, would reveal that this Court has attempted to balance
the equities. On the first occasion, the respondentwife had
herself made a statement that she would identify a similar
property and the appellanthusband had made a statement
that he was willing to pay the rent of such a property
identified by the respondentwife. On the second occasion,
this Court vide order dated 21st August 2018, directed an
architect to be appointed from the panel of Architects. In
accordance with the directions passed by this Court, an
architect was appointed and she has made an elaborate
exercise of identifying various properties. It will be relevant
to refer to the contents of the letter dated 3 rd February 2021,
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addressed by the Architect to the Registrar of the Family
Court:
“We are producing herewith Property Listings
similar to 82, Pali Hill, Bandra (West), Mumbai in
our best effort to provide suitable accommodation
to Mrs. Poonam Shroff as per her liking and will.
The shortlisted properties in Upscale locales
assuredly possess the potential to exhibit the
desired degree of luxe comfort as expected by
Mrs. Poonam Shroff evident from the mail dated
07.10.2020 from Madhu Chaudhary
([email protected]) from Naik Naik
Company representing Mrs. Poonam Shroff.”
21. It could thus be seen that in the Architect’s opinion, the
properties in the list are similar to the said house and that
they have made their best efforts to provide a suitable
accommodation to the respondentwife as per her liking and
will. It has further been stated in the said communication
that the shortlisted properties in the upscale locales
assuredly possess the potential to exhibit the desired degree
of luxe and comfort as expected by the respondentwife. The
list annexed to the communication of the Architect contains
as many as 17 properties in the upscale area of Bandra,
Juhu, Santacruz and Khar. Even if we leave aside properties
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No. 4 and 12, which according to the respondentwife are not
suitable for residential accommodation, there are still 15
properties available for rent. We do not like to go into the
details of all the properties. However, we will reproduce the
details of few properties with the remarks given by the
respondentwife, to examine the correctness of the stand
taken by the respondentwife:
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Sr. Name of Location Area Accommodation Rent Remarks Remarks on behalf of
Premise Type per Poonam Shroff
Month
in
Rupees
1. Independent Carter 12,000 Independent 25 Sea Smaller as compared to
Building Road, Sqft Building lakhs View 82, Pali Hill and hence
Bandra Ground + cannot be an alternate
(West) 6 (terrace) equivalent accommodation
in terms of the order dated
6th March, 2020 of the
Hon’ble Apex Court in
Civil Appeal No. 2634 of
2017
2. Bungalow Juhu Tara 6000 Sqft Bungalow 30 Sea Further details required
Road, Near + 7000 Lakhs Facing
Soho House Sqft
(Garden) +
4000 Sqft
(Terrace)
3. Vasant Kunj Santacruz 7500 Sqft Duplex13th 25 Fully Smaller as compared to
14th Floor Lakhs done up 82, Pali Hill and hence
with Sea cannot be alternate
View equivalent accommodation
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9. Silver Sands Carter Road 4500 Sqft Penthouse 12 Includes Smaller as compared to
+ 1000 4BHK Lakhs terrace, 82, Pali Hill and hence
Sqft Sea cannot be an alternate
(terrace) Facing equivalent accommodation
in terms of the order dated
6th March, 2020 of the
Hon’ble Apex Court in
Civil Appeal No. 2634 of
2017
11. Raj Mahal Juhu 10000 Bungalow4 25 Sea Smaller as compared to
Sqft BHK Lakhs Facing, 82, Pali Hill and hence
has cannot be an alternate
Garden equivalent accommodation
in terms of the order dated
Terrace 6th March, 2020 of the
Hon’ble Apex Court in
Civil Appeal No. 2634 of
2017
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22. The aforesaid chart would reveal that though the
property at Serial No. 1 is an independent bungalow at
Carter Road, Bandra, with a sea view, the remarks given by
the respondentwife is that the same is smaller as compared
to the said house, and therefore, cannot be an alternate
equivalent accommodation in terms of the order of this Court
dated 6th March 2020. Insofar as the property at Serial No. 2
is concerned, the same is also a sea facing bungalow at Juhu
Tara Road. However, the remarks given by the respondent
wife is that further details are required. The rent for these
two houses is Rs.25 lakhs and Rs.30 lakhs respectively. The
property at Serial No. 3 is a duplex on 13 th and 14th floor. It
is fully done up with a sea view. However, the remarks given
by the respondentwife is that it is smaller as compared to
the said house and therefore, cannot be an alternate
equivalent accommodation. The property at Serial No. 9 is a
Pentahouse4BHK with 1000 sq. ft. of terrace and also sea
facing. However, the remarks given by the respondentwife is
that it is not similar to the one offered at Serial No. 1. The
property at Serial No. 11 is a 10,000 sq. ft. bungalow. It is
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sea facing and has a garden and a terrace. The rent is Rs.25
lakhs. However, a similar remark is given by the respondent
wife even in respect of this property also.
23. In our view, to stretch the word ‘similar’ as used in the
order dated 6th March 2020, to be totally identical to the said
house, would be unrealistic. It will be difficult to find out a
house identical to the said house having the same area, the
same facilities and the same luxuries. The word ‘similar’ has
to be construed as providing the same degree of luxury and
comfort as is available in the said house. We have no
hesitation in observing that the conduct of the respondent
wife in firstly not choosing any house as per her choice and
secondly, in rejecting all the properties, which have been
identified by the Architect, only on the ground that they are
not similar and therefore, not in accordance with the order
dated 6th March 2020, to say the least is unreasonable.
24. As already discussed hereinabove, if we allow the prayer
and allow the respondentwife to move into the said house, it
will rather than subserving the interest of the parties, would
be detrimental to their interests. The record and the
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pendency of the criminal proceedings would show that the
relations between the parties are so strained that if they are
permitted to live in the said house, it would lead to nothing
else but further criminal proceedings.
25. Insofar as the alternate prayer with regard to payment
of Rs.35.37 lakhs per month is concerned, it will be
necessary to refer to the order of the Family Court dated 30 th
July 2018. The Family Court, by an elaborate order, after
recording the details about the income of the parties, had
directed an interim maintenance to be paid to the
respondentwife at the rate of Rs. 7 lakhs per month and to
the minor at the rate of Rs. 5 lakhs per month. If the prayer
for payment of an amount is allowed, it will be giving an
additional amount to the respondentwife. It will amount to
awarding an amount which is much more than the one to
which the respondentwife was found entitled by the Family
Court. It may not be out of place to mention that the said
order has been passed on 30th July 2018 i.e. during the
pendency of the present appeal. We, therefore, find that the
alternate relief as prayed also cannot be granted.
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26. Insofar as the vacation of status quo is concerned, the
order was passed after hearing the parties. Apart from the
fact that it may amount to review of the order, we do not find
that in the facts of the present case, the said order needs to
be vacated.
27. A perusal of the order passed by this Court dated 30 th
January 2020, would reveal that this Court intended to pass
the order directing the appellanthusband to pay the rent till
the disposal of the pending divorce petition. The divorce
petition has been pending before the Family Court for a
period of last 6 years. Taking into consideration the facts
and circumstances of the case, we are of the view that it will
be in the interest of both the parties that the divorce petition
pending before the Family Court is decided expeditiously so
that there can be at least some quietus to the acrimonious
litigation pending between the parties.
28. In the result, we do not find merit in both the
interlocutory applications and the same are rejected.
However, we clarify that in the event, the respondentwife
decides to shift to any of the properties mentioned in the list
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annexed with the report of the Architect dated 3rd February
2021 or she locates any of the rented premises as per her
choice, the appellanthusband shall pay the rent of the said
premises from the date on which such premises are taken on
rent. However, taking into consideration that the highest
rent of the properties identified by the Architect is Rs. 30
lakhs per month, the appellanthusband would be liable to
pay rent to the maximum of Rs. 30 lakhs per month.
29. In the facts and circumstances, the Family Court is
directed to expedite the proceedings of the Petition No. A
2742 of 2015 and decide it as expeditiously as possible. No
order as to costs.
……….……………………..J.
[L. NAGESWARA RAO]
…………………….J.
[B.R. GAVAI]
NEW DELHI;
DECEMBER 03, 2021.
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