1 fca-132.08,109.08
pmw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.132 OF 2008
WITH
CIVIL APPLICATION NO.189 OF 2009
WITH
CIVIL APPLICATION NO.215 OF 2009
WITH
CIVIL APPLICATION NO.193 OF 2013
WITH
CIVIL APPLICATION NO.348 OF 2015
Husband … Appellant
Versus
Wife … Respondent
WITH
FAMILY COURT APPEAL NO.109 OF 2008
WITH
CIVIL APPLICATION NO.293 OF 2008
WITH
CIVIL APPLICATION NO.258 OF 2013
Wife … Appellant
Versus
Husband … Respondent
Smt. Manjula Rao a/w Ms. Neena Shah, Ms. Sushmitha Sherigar and
Ms. Lavanya Mudaliar for the Appellant (husband) in FCA/132/2008,
for Applicant in CAM/189/2009, for Respondent in FCA/109/2008,
CAM/215/2009, CAM/193/2013, CAM/348/2015, CAM/293/2008,
CAM/258/2013.
Mr. Mihir Desai, Senior Advocate and Mr. Javed Patel and Ms. Devyani
Kulkarni i/by Judicare Law Associates for the Appellant (wife) in
FCA/109/2008, for Applicant in CAM/215/2009, CAM/193/2013,
CAM/348/2015, CAM/293/2008, CAM/258/2013 and for Respondent
in FCA/132/2008, CAM/189/ 2009.
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CORAM : A.S. OKA
SMT. ANUJA PRABHUDESSAI, JJ.
DATE ON WHICH SUBMISSIONS WERE HEARD : 11.08.2017
DATE ON WHICH JUDGMENT IS PRONOUNCED : 13.10.2017
JUDGMENT (PER A.S. OKA, J.):-
1 These two appeals can be conveniently disposed of by a
common judgment and order as both the appeals arise out of the same
matrimonial Petition before the Family Court at Bandra, Mumbai. We
are directing that the names of the parties and their children should be
masked.
2 Marriage Petition No.A-531 of 2004 was filed by the wife in
the Family Court in Bandra, Mumbai. The marriage between the parties
was solemnized on 25th June, 1989. There are two issues born from the
said marriage. The daughter is born on 19 th September, 1993 and the
son is born on 9th February, 2001. Both the children are admittedly
citizens of Sweden. Today, the husband along with the children is
residing in Sweden and the wife is residing in Mumbai. Initially in the
Petition filed by the wife, she sought a decree of judicial separation
under Section 10 of the Hindu Marriage Act, 1955 (for short “the said
Act”). By carrying out an amendment, by way of a prayer made in the
alternative, she sought a decree of divorce under clause (i-a) of Sub-
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Section (1) of Section 13 of the said Act. The wife also prayed for
custody of both the minor children. The wife prayed for a money decree
against husband in the sum of Rs.44,89,000/- with interest thereon at
the rate of 18% or at market rate, whichever is more. In addition, she
prayed for maintenance for herself at the rate of Rs.35,000/- p.m and
for minor children at the rate of Rs.11,000/- p.m. By the judgment and
decree dated 5th March, 2008 the learned Judge of the Family Court at
Mumbai dismissed the prayer for divorce. The learned Judge held that
the wife was entitled to retain custody of both the children. A direction
was issued to grant weekend access to enable the husband to meet the
children. The husband was directed to pay maintenance at the rate of
Rs.11,000/- p.m from the date of the order. An order was also passed to
provide vacation access to the wife. Family Court Appeal No.132 of
2008 has been preferred by the husband being aggrieved by the decree
passed by the Family Court retaining the custody of the minor children
with the wife and directing payment of maintenance to the children.
Family Court Appeal No.109 of 2008 has been preferred by the wife
being aggrieved by the rejection of the prayer for divorce, the rejection
of the prayer for passing a money decree in the sum of Rs.44,89,000/-
with interest thereon and the rejection of the prayer for grant of
maintenance to herself.
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3 At the outset, we may note here that now the controversy
between the parties which is the subject matter of these Appeals has
been narrowed down. The order dated 24 th March, 2017 passed by this
Court is relevant. The order was passed when hearing was conducted
through video conferencing on the fourth floor of the High Court Annex
Building at 5.30 pm on that day. As the husband along with the
children, is in Sweden, hearing was conducted by using the medium of
video conferencing. Paragraphs 1 to 4 of the said order read thus :-
“1. The Appeal was fixed for final hearing today at 3.00
p.m. in the Court. It was heard for some time on the last
date. After hearing the parties for some time, the parties
agreed to settle certain contentious issues such as
dissolution of marriage and withdrawal of rival
allegations and accusations based on which, a decree of
divorce was sought. The Appellant and the Respondent
both agreed to relinquish their right, title or interest
and/or claims against each other’s properties and
inheritance acquired before or after the divorce
anywhere in the world. The parties have agreed to
complete the formalities as regards their divorce. It was
agreed that in the present Appeals, a decree will be
applied in terms of Section 13B of the Hindu Marriage
Act, 1955. The Appellant-wife agreed to sign Swedish
Divorce Application. As regards the custody of the son
Smyan, the wife agreed that the custody will be retained
with the husband. The issue which remains to be sorted
out is of grant of reasonable visitation rights and access
to the mother. As regards the daughter Natasha, the wife
is insisting on her custody. The other contentious issues
which remain are as regards refund of the sum of
Rs.44,89,000/and maintenance as prayed in Prayer
Clauses (c) and (c)(i) of the Petition No.A-531 of 2004.
2. The learned senior counsel appearing for the Appellant-
wife and the learned counsel appearing for the
Respondent-husband have tendered the consent terms4 of 41
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5 fca-132.08,109.08which are signed in our presence by the Appellant wife
and the Advocate on record for the Appellant-wife and
the Advocate on record for the Respondent-husband.
Today, we had a meeting/hearing through video
conferencing. The husband who is in Sweden stated that
he has agreed to the consent terms. The signature of the
husband will be obtained by sending a copy of the
consent terms to him. During the course of
meeting/hearing through video conferencing, there was
some dialogue between the son and the mother. The
mother could see the daughter. It was agreed to have a
meeting/hearing through video conferencing on 21st
April 2017 around 5.00 p.m.
3. The consent terms are taken on record and marked “C1”
for identification. We accept the statements and
undertakings of the Appellant and the Respondent
incorporated in the consent terms respectively.
4. Another document is tendered which is signed by the
Advocates for both the parties and the Appellant wife
wherein the issues which will need adjudication by this
Court in the pending Appeals have been set out. The
same is taken on record and marked “C2″ for
identification.”
4 The consent terms marked as ‘C-1’ have been signed by the
appellant, the Advocate for the appellant and the Advocate for the
respondent. Though the respondent has not signed the said consent
terms, in the second paragraph of the aforesaid order, the consent of the
husband has been recorded. Even at the conclusion of the hearing of
this Appeal, the learned counsel appearing for the husband has stated
that a decree be passed in terms of the consent terms. The consent
terms marked as ‘C-1’ read thus :
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6 fca-132.08,109.08“CONSENT TERMS
1. The Appellant wife and the Respondent husband have
agreed to convert the above Appeal to a Petition under
section 13(b) of the Hindu Marriage Act, 1955 and
resolve the dispute by agreeing to divorce by mutual
consent.
2. The parties hereto agree and undertake to withdrew all
the allegations and accusations relating to the relief of
decree of divorce made against each.
3. The Appellant and respondent agree undertake that
they relinquish their right and/or interest and/or claims
against each other’s properties, inheritance acquired
before or after the divorce anywhere in the world.
4. That the Appellant agrees and undertakes (i) to sign the
Swedish divorce Application in India to dissolve the
marriage dated 2506.1989 in Sweden on a no fault
basis, without prejudice to her right to claim the return
of Rs.44,89,000/- with interests as prayed in clause (c)
of a the Petition, (ii) her maintenance and alimony of
Rs.35,000/- as prayed in clause (c) (i) of the Petition
(iii) custody of Natasha and reasonable access of Smyan
in India agrees to confine her claim in the above Appeal
as stated herein. The Appellant undertakes not to make
any further claim of maintenance and/ or any monetary
claim in future against the Respondent.
5. The Appellant and the Respondent have signed the
present Consent Terms out of their own free will
without coercion and/ or force and have signed after
reading and understanding the contents of the same.
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However, it is clarified that the Appellant has agreed to
sign divorce form to be presented in Swedish Court on
the representation made by the Respondent that her
presence in Sweden will not be required.”
5 The document signed by the Advocates for the parties and
the wife are marked as ‘C-2’ reads thus :-
“BY CONSENT FOLLOWING ISSUES WILL BE ADJUDICATED
IN the ABOVE APPEAL
1. The issue of monetary claim made by the Appellant wife
i.e. (i) return of the sum of Rs.44,89,000/- and (ii) the
maintenance as prayed in prayer clause (c) and (c) (i)
of the Petition No.A-531 of 2004.
2. The issue of the custody of the girl child Natasha to
Appellant wife.
3. The issue of access to Smyan in India.”
6 Thus, now these Appeals remain confined to the three
issues which are noted in the document marked as ‘C-2’.
7 We must note here that the arrangement in terms of clause
4 of the consent terms at Exhibit ‘C-1’ could not be worked out for
various reasons. Nevertheless, the learned counsel appearing for both
the husband and wife have stated that a decree under Section 13-B of
the said Act be passed.
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8 After having perused the allegations and counter
allegations and the manner in which parties have contested the matter,
we find that there is an irretrievable breakdown of the marriage. The
Petition before the Family Court was presented on 5 th April, 2004.
Before the Family Court and even before this Court, there have been
attempts to save the marriage which have completely failed. Therefore,
this is a fit case where parties should be allowed to convert the Petition
by amending prayer clauses (a) and (a-1) into a Petition seeking a
decree of divorce under Section 13-B of the said Act. Apart from the fact
that once conversion is permitted, the amendment will relate back to
the date of the institution of the Petition, now the law is well settled.
The Apex Court in the case of Amardeep Singh Vs. Harveen Kaur1 held
that the cooling period of six months can be waived. Considering
peculiar facts of the case, perhaps there cannot be a better case to
condone the cooling period. Therefore, we are of the view that this is a
fit case where the marriage between the parties should be dissolved by
a decree of divorce by mutual consent under Section 13-B of the said
Act.
9 Before we refer to the orders passed by this Court on the
issue of custody from time to time and other factual aspects as well as
legal submissions, we may note here that now the appeals are being
1 2017 SCC Online SC 1073
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confined to the three issues which are set out in the document marked
as ‘C-2’ which is reproduced above.
10 Now, we may make a reference to the various orders passed
by this Court and the Apex Court dealing with the issue of custody of
the children. Civil Application No.189 of 2009 in the Appeal preferred
by the husband came up before a Division Bench of this Court on 29 th
September, 2015. We may note here that a Petition filed by the wife for
the guardianship of the daughter is pending. We are not dealing with
the merits of the said proceedings. Paragraphs 21, 22 and 23 of the
order dated 29th September, 2015 read thus :-
“21.Taking into consideration these peculiar
circumstances, we have come to the conclusion that
it would not be advisable to keep Smyank any
longer in Mumbai against his wishes. During the
course of interview, we found that, at times, he was
locked in a room, though this allegations is
vehemently denied by the Respondent/wife. It did
appear to us that the child was being kept in
Mumbai against his wishes.
22. We are aware that Smyank, at the moment, is taking
education in one of the best schools in Mumbai and that
his academic record is very good and that in the past he
had not behaved in the manner in which he had
behaved recently in the last two/three weeks. However,
the fact remains that if this is a state of mind of the
child which is adolescent and is neither a child nor an
adult, it is possible that it may affect him in one way or
other which may result in child taking some drastic
steps. Under these circumstances, keeping in mind
the present condition of the child, we are of the view
that he may be permitted to go to Sweden alongwith
his father, subject to the following conditions being9 of 41
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10 fca-132.08,109.08imposed:-
(i) The Applicant/husband shall take his wife to the School
where the admission is to be given to Smyank and he
will ensure that if admission is granted he will continue
to take education in that School and provide all
facilities and pay school fees and incur all expenditure
for that purpose.
(ii) Secondly, within four weeks, if the admission is not
obtained, the Applicant/husband would send the child
back alongwith his mother so that he can continue to
take education in Mumbai. In such an eventuality, we
request the School Authorities at Mumbai to condone
his absence.
(iii) We are informed that Diwali Vacations are going to
commence from 08/11/2015 to 18/11/2015. In case
admission is not given to the child in School in Sweden,
the Applicant/husband shall ensure that by 18/11/2015
the child should be returned along with his mother to
Mumbai.
(iv) In the event, the admission is given to the child in any
School in Sweden and after sometime if he feels that he
is not comfortable in Sweden, he may be sent back to
Mumbai and husband shall accompany him and ensure
that his custody is handed over to Respondent/wife.”
(emphasis added)
11 The same order notes that the daughter is suffering from an
ailment known as ‘down syndrom’. The order notes that she is able to
communicate in low voice. Paragraph 24 notes the views expressed by
the daughter when the Division Bench had a dialogue with her.
Paragraph 24 reads thus :-
“24. So far as daughter Natasha is concerned, she is an adult.
Though she is suffering from down syndrome, she is in
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11 fca-132.08,109.08a position to communicate in a low voice. We found
that the child is comfortable with the father. When
she was interviewed in our Chamber. It is not in
dispute that Natasha was in the custody of the
applicant/husband for two years though, according
to the Respondent/wife this was contrary to the
orders passed by the Court. Secondly, it has been
stated in the affidavit of the Applicant/husband that
during her adolescence, the Applicant/husband had
looked after her and had made her self reliant
during her menstruation period. We have noticed
that she is very comfortable with her father and not
comfortable with her mother and when we asked
her the question whether she would like to be with
her mother, she had replied “never ever”.
(emphasis added)
12 Paragraph 29 of the said order reads thus :-
“29. We are informed at this stage that though the custody of
Natasha was continued with the Applicant/husband,
sister of the Respondent/wife has taken away Natasha
from the School and the Counsel for Respondent/wife
was unable to tell us her whereabouts. This is
unfortunate to say the least. When specific orders were
passed that temporary access which was given to the
Applicant/husband was continued by this Court, the
orders passed by this Court could not have been
disobeyed. Be that as it may, custody of Natasha may
be handed over to the Applicant/husband so that he
can take appropriate steps for getting exit visa from
the appropriate authority.”
(emphasis added)
13 As noted in the order dated 8th October, 2015, the order
dated 29th September, 2015 was challenged by the wife before the Apex
Court. Though, the Apex Court did not interfere with the order, a liberty
was granted to the wife to apply for modification. Further order dated
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12 fca-132.08,109.088th October, 2015 passed by this Court issues the following two
directions :-
“9. We hope that wiser counsel would prevail on the
Respondent/wife and she would comply with the order
passed by this Court. Since the son Smyan has been
admitted in a school in Sweden, necessary formalities,
such as, temporary passport be issued to him by the
Swedish Authority. We direct the Respondent/wife to
handover custody of daughter Natasha to the
Petitioner within twenty four hours.
10. The F.R.R.O. to issue Exist VISA to both son Smyan and
daughter Natasha. The undertaking, which was
directed to be given by the Petitioner, is tendered on
record. The same is taken on record.”
(emphasis added)
14 The order dated 9th October, 2015 notes that as per the
order dated 8th October, 2015, the wife has handed over the custody of
the daughter to the husband.
15 Thereafter, an application for modification being Civil
Application (St) No.28053 of 2015 was filed by the wife on 12 th
October, 2015. By order dated 12th October, 2015, the said application
was rejected. Paragraphs 8 and 9 of the said order read thus :-
“8. In our view, therefore, no case is made out by the
Applicant/wife for modification of the order at this
stage. Appellant/husband has already given an
undertaking to this Court that he has roots in India and
his brother and other family members are residing at
Bangalore. In view of this, it is not necessary to obtain
any other security. However, the undertaking given by
the Appellant/husband that he will bring back the12 of 41
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13 fca-132.08,109.08children on a day fixed by this Court is accepted. We,
therefore, reject the application for modification of the
order. However, we make it clear that this is a
temporary arrangement and the Appellant/husband
shall bring both the children to India on 23/12/2015 at
3.00 P.M. in this Court and file an affidavit, stating
therein the facilities which are provided to Natasha
alongwith medical certificate of the Hospital from
Sweden where she was examined and produce other
relevant material. Necessary formalities therefore be
completed by FRRO, so that both the children can be
taken to Sweden. Applicant/wife if she is still willing to
travel to Sweden alongwith children, necessary
arrangement would be made by the Appellant/husband
as per undertaking given by him.
9 We are informed that, today, the Applicant/wife is not
in a state of mind to travel to Sweden alongwith the
children. However, in future, if she wants to travel to
Sweden, undertaking given by the Appellant/husband
may be made applicable to her subsequent date on
which she intends to travel to Sweden. Mrs. Manjula
Rao, the learned Counsel for the Appellant/husband
has submitted that undertaking to provide for her
residence and for her air-tickets to travel to Sweden
also would be made applicable to her traveling to
Sweden on subsequent date. She submitted that
whenever the Applicant/wife wishes to travel to
Sweden, applicant may give an intimation to her in
advance so that proper arrangement can be made.
Applicant/wife is directed go with the Counsel for
Appellant/husband for signing the necessary relevant
documents by tomorrow before the Swedish Council.”
16 The order dated 12th October, 2015 was challenged by the
wife by filing Special Leave Petition (C) No.2967 of 2015. In the said
SLP by order dated 15th October, 2015 parties were permitted to
approach a specialist to make a complete assessment of medical
condition of the daughter, her present treatment and prospects
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consequent upon her travel to Sweden and the resultant change of
living environment. Under the same order, no objection of the wife was
recorded to enable the son to travel with his father to Sweden. Under
the order dated 15th October, 2015 it was directed that if the husband
travels to Sweden along with the son, the custody of daughter will
remain with her parental grand-parents with liberty to wife to meet her
every alternate day.
17 The order dated 28th October, 2015 passed by the Apex
Court notes that the direction issued on 15 th October, 2015 to get
assessment of medical condition of the daughter done through a
specialist has not been complied with. Under the said order, the
husband along with son and daughter were permitted to travel to
Sweden on 29th October, 2015 subject to undertaking of the father to
come back to India on 16 th November, 2015 along with the daughter.
The Apex Court directed the examination of the daughter by All India
Institute of Medical Sciences (AIIMS). On that day, the Hon’ble Judges
of the Apex Court interacted with the daughter. After interacting with
the daughter, the Apex Court made the following observation :-
“……………….. Accordingly, in the presence of her
parents, we have interacted with Ms. Natasha. We
are satisfied that M. Natasha can be in the custody
of the father and she can accompany her father for
Sweden, for the present, to continue her studies.”
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15 fca-132.08,109.0818 Ultimately on 18th April, 2016 the wife withdrew the
Special Leave Petition.
19 By order dated 20th April, 2017 this Appeal was specially
assigned to this Bench. Before that on 24th March, 2017 hearing was
conducted through video conferencing on the 4 th Floor of the High
Court Annex Building. The Bench interacted with the wife and husband
(via video conferencing) who was in Sweden. The order passed on that
day records that during the course of hearing through video
conferencing, there was some dialogue between the son and the
mother. The mother could see the daughter. Further video conferencing
hearing was held on 21st April, 2017 when the mother had a dialogue
with the son.
20 The learned Senior Counsel appearing for the wife
submitted that though the husband has no objection for the wife
travelling to Sweden to meet the son, due to various concerns, the wife
is unable to visit Sweden though she is a Swedish National. He
submitted that the husband be directed to send the son to India during
the school vacations so that the mother will be able to enjoy his
company. We must note here that at one stage, during video
conferencing meeting, we had suggested that wife should travel to
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England or to some other country in Europe so that the son can be
taken by the husband at that place to enable the wife to meet him.
However, we find that the son was not willing to travel out of Sweden
for meeting the mother.
21 The learned Senior Counsel appearing for the wife also
made certain submissions on the issue of custody, issue of guardianship
of the daughter by placing reliance on several decisions and other
material. We must note here that when we pointed out to him that
Guardianship Petition filed by the wife is pending and therefore, we do
not wish to touch the issues involved in the said Petition, the learned
Senior Counsel has confined his submissions only to the custody. He
would urge that considering the ailment suffered by the daughter, it is
in the interests of the daughter that she is in the company of mother
rather than father. He submitted that the father may not be able to look
after the interests of the daughter especially considering her health
condition and therefore, it is necessary that the custody is retained with
the mother. He relied upon several decisions laying down the law as
regards approach of the Court in custody matters. He submitted that
the welfare of the daughter lies in allowing her mother to take her care
and therefore, her custody be handed over to mother. He urged that the
wife is entitled to access to meet the son. Therefore, a direction be
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issued to the husband to bring the son to India during his school
vacations.
22 The learned Senior Counsel appearing for the wife invited
our attention to various documents placed on record as regards the
claim of the wife for recovery of the sum of Rs.44,89,000/-. He invited
our attention to various documents on record. He submitted that as per
the Swedish laws it is true that certain amount was paid to the wife for
taking care of the disabled child. He pointed out that certain amounts
were transferred from the bank account of the wife to the account of
the husband. He submitted that the wife has an explanation for each
and every entry in her bank account. He also pointed out the material
on record as regards the salary and income of the husband. He invited
our attention to the cross-examination of the husband made by the
Advocate for the wife. He pointed out that the husband admitted that
he was having account in Skandia Banken bearing No.915006740-5 in
Sweden. He pointed out paragraph 259 of the cross-examination of the
husband wherein he admitted transfer of an amount of 5,00,000 skr
from account of the wife to the Account No.1160354830562. He urged
that there is an entry of transfer of amount of Rs.2,50,000 skr from the
account of the wife to the aforesaid account of the husband. He pointed
out that the respondent erroneously claimed that the account to which
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amount was transferred was not his account which is contrary to the
documentary evidence on record. He also has taken us through the
relevant pleadings and documents on record. He submitted that there is
a documentary evidence to show that amounts of Rs.5,00,000/- and
2,50,000/- skr were transferred from the account of the wife to the
husband’s account. He pointed out that the entries of maintenance
charges in respect of societies/buildings reflected from the account of
the wife are in respect of flat owned by her father and merely because
she may have paid maintenance charges, it cannot be said that she is
the owner of the flats. He submitted that admittedly at all relevant time,
the wife had no income and even today, she does not have income. He
pointed out that even assuming that certain amount was paid to the
wife by Swedish Government for taking care of handicapped child, that
is no ground to deny maintenance to the wife. He pointed out various
parts of the oral evidence of both the husband and wife and urged that
considering very high income of the husband, the wife is entitled to
maintenance so that she can maintain a life style which is similar to the
life style of the husband. He pointed out the reasons given by the Family
Court for denying maintenance to the wife.
23 The learned counsel appearing for the husband has also
taken us through various parts of the pleadings and evidence. She
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submitted that as regards the custody of the daughter, the issue is
virtually concluded by the orders of this Court which were not
interfered with by the Apex Court. She pointed out that even during the
video conferencing hearing held by this Court, the daughter showed
great deal of reluctance to even appear before the video camera. She
would urge that not only that proper care of the daughter is being taken
in Sweden, the daughter is earning in Sweden. She submitted that apart
from the fact that the desire of the daughter is not to live with the
mother in India, there is no possibility of daughter getting any such
employment in India considering her handicap. She stated that in India,
she may not get proper facilities on par with the facilities extended by
the Government of Sweden. She pointed out that the wife continues to
be a citizen of Sweden and therefore, her unwillingness to travel to
Sweden to meet the son cannot be understood at all. She submitted that
the son had made it very clear to her that he is willing to meet her
provided the mother travels to Sweden. She submitted that the husband
does not wish to come in the way of mother meeting the son and in fact
the mother is in touch with the son on telephone.
24 The learned counsel appearing for the husband invited our
attention to cross-examination of the wife which shows that there are
large number of withdrawals made by the wife by using Credit/Debit
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Cards of the husband. Apart from the fact that the statement of her
bank account for the entire period was not produced by the wife, the
statement of account of her account in Karnataka Bank produced by her
shows that there are large number of transactions involving high
amount for which the wife has offered no explanation. She pointed out
that wife received a large amount from the Government of Sweden for
taking care of her own daughter. He submitted that the said amounts
are received by the wife apart from large withdrawals made by her. She
submitted that the entries in the extract of her bank account available
on record will show that wife has a source of income. She submitted
that an adverse inference needs to be drawn against wife for not
producing the relevant documents and for not explaining utilisation of
the amounts which she received from the Swedish Government. She
submitted that wife has not accounted for the said amounts. She relied
upon several statements made by the wife in her cross-examination. Her
submission is that considering her conduct reflected from the evidence
on record, her case cannot be believed at all and deserves to be
discarded. She submitted that only because her husband was employed
abroad, the wife cannot seek maintenance. She would, therefore,
submit that the wife is not entitled to any monetary relief.
25 We have given careful consideration to the submissions.
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21 fca-132.08,109.08The first question before the Court is as regards the prayer for divorce.
We have already reproduced the consent terms taken on record and
marked 'C-1' for identification. From the evidence on record and from
the submissions made across the bar as well as from the interaction
which we had with both the parties at the time of video conferencing
hearing, we are convinced that the marriage between the husband and
wife has completely broken down. They have been separately residing
for a considerably long time. We are satisfied that there is no collusion
between the parties while seeking relief of divorce under Section 13-B
of the said Act.
26 We may note here that though attempts were made to
apply for divorce before the Swedish Court by consent of the parties,
consensus could not have arrived at about the contents of the
application to be made to the Swedish Court.
27 Hence, by accepting undertakings in clauses (2) and (3) of
consent terms marked as 'C-1', the marriage between the parties
deserves to be dissolved by a decree of divorce. We accordingly accept
the undertakings.
28 Now, we are proceeding to deal with the issues which
survive for consideration of the Court which are set out in document
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22 fca-132.08,109.08marked as 'C-2' which we have reproduced above. The first question we
considered is about the custody of the daughter.
29 As noted earlier, the date of birth of the daughter is 19 th
September, 1993. We have already noted that she is suffering from
"down syndrome". We have already made a reference to the orders
passed by a Division Bench of this Court as well as the Apex Court. As
far as the daughter is concerned in paragraph 24 of the order of the
Division Bench dated 29th September, 2015, the observations made after
interviewing the daughter have been noted. In paragraph 24, the
Division Bench has observed thus :-
24. So far as daughter Natasha is concerned, she is an
adult. Though she is suffering from down syndrome,
she is in a position to communicate in a low voice. We
found that the child is comfortable with the father.
When she was interviewed in our Chamber. It is not in
dispute that Natasha was in the custody of the
applicant/husband for two years though, according to
the Respondent/wife this was contrary to the orders
passed by the Court. Secondly, it has been stated in the
affidavit of the Applicant/husband that during her
adolescence, the Applicant/husband had looked after
her and had made her self reliant during her
menstruation period. We have noticed that she is very
comfortable with her father and not comfortable with
her mother and when we asked her the question
whether she would like to be with her mother, she had
replied "never ever".30 In the same order, the Division Bench has taken a note of
the fact that both son and daughter are attached to each other. In fact
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23 fca-132.08,109.08the Division Bench has noted that it was noticed during the interview
that daughter used to interact and look at her brother for approval. In
fact, the observation of the Division Bench is that if the son is allowed
to go to Sweden along with father and the daughter is kept in Mumbai,
it will have consequential adverse effects on her psychology. It is as per
this order that the custody of the minor daughter was ordered to be
handed over to the father. We have already made a reference to the
orders of the Apex Court. Under the order dated 28 th October, 2015 the
Apex Court permitted the father to take daughter subject to the
condition of bringing her back. Further order dated 18 th November,
2015 is already quoted earlier wherein the Apex Court recorded
satisfaction after interacting with the daughter that she can be in the
custody of the father and she can accompany her father to Sweden to
continue her studies. Thus, from October or November, 2015 the
daughter is continuously living with father in Sweden. As noted earlier,
the daughter studied in Sweden and now some kind of work is provided
to her and she continues to earn. We could notice during video
conferencing meeting that the daughter was not comfortable when the
mother was talking to her.
31 Therefore, it is impossible now at this stage to disturb the
custody of the father. It appears to us that the daughter is not interested
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24 fca-132.08,109.08in interacting with the mother. Considering the entire background, we
are of the view that it may not be in the interest and welfare of the
daughter that her custody is disturbed or that she is forced to meet her
mother.
32 As regards visitation rights to meet the son, during video
conferencing meetings, the son was very categorical that he had no
objection for meeting his mother provided she comes to Sweden.
Though the mother is a Swedish National, there is no plausible
explanation forthcoming as to why she is not willing to go to Sweden.
Even the husband has no objection if the wife meets the son in Sweden.
Considering the fact that the daughter is very much attached to the son
and considering the observation of the Division Bench that if the
daughter is deprived of company of her brother it will affect her
psychology, it will not be appropriate if we pass an order directing the
father to bring the son to Mumbai to enable the mother to meet.
33 There is one more aspect which must be noted. The aspect
is that the date of birth of the son is 9th February, 2001. In February,
2018 he will complete 17 years of age. He is taking education in
Sweden. We must note here that in one of the video conferencing
meetings even the learned counsel for the husband spoke to the son and
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25 fca-132.08,109.08tried to persuade him to meet his mother outside Sweden but the son
was very firm. Therefore, we do not deem it appropriate to issue a
direction to the father to bring the son to Mumbai to enable the mother
to meet him. However if the son comes to Mumbai, the husband will
have to give prior intimation of the visit of the son to the wife. During
such visits, the wife will be entitled to meet the son. She will be
entitled to continue her conversation with the son on telephone and via
video conferencing. It will be open for her to visit Sweden with prior
intimation to the husband for the purposes of meeting the son.
34 Now we come to the issue of grant of monetary relief. The
evidence on the issues of entitlement of the wife to maintenance and to
the amount of Rs.44,89,500/- will have to be considered. The evidence
is interlinked and therefore, we are considering both the issues together.
Firstly, it will be necessary to make a reference to the pleadings. The
marriage was solemnized on 25 th June, 1989 and in the same year, the
husband left for Sweden. In November, 1989 the wife went to Sweden
and started cohabiting with the husband. Thereafter, the parties were
for some time in Australia. The parties lastly cohabited together in
Sweden. In the plaint, the wife has averred that in the beginning, her
husband's take home pay was 10,333 skr equivalent to Rs.58,928/-. In
paragraph 15 of the Petition, the wife has stated that the take home
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26 fca-132.08,109.08salary increased to 15000 skr equivalent to Rs.85,500/-. This was in the
year 1992.
35 In paragraph 19 of her Petition, she has stated that as the
daughter was handicapped, for looking after her, the Swedish
Government was paying basic salary of 6000 skr per month equivalent
to Rs.34,200/- to the wife as she was staying home and taking care of
the daughter. It is stated that this amount was directly transferred to her
account in Sweden. It is her case that after spending the necessary
amount, a part which was not spent became her savings. As stated
earlier, the husband moved to Australia. Thereafter, he came back to
Sweden. In the meanwhile, for some time, the parties were in India as
the husband had an employment in India. In paragraph 40 of the
Petition there is an allegation that the husband while in Australia was
earning 3,00,000 AUD equivalent to Rs.99,00,000 per annum.
36 As regards her claim of Rs.42,75,000/-, paragraph 42
contains material averments which reads thus :
"42. As mentioned earlier when the parties had moved to
Australia in 1999 the Petitioner used to put aside 50
AUD in a box in her kitchen. She did this for two and
half years till the parties moved to Sweden in 2002. The
saving for two and half year had amounted to around26 of 41
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27 fca-132.08,109.086500 AUD i.e. Rs.2,14,500/- (Rupees Two Lacs fourteen
thousand five hundred only). When the parties were to
shift back to Australia in 2002 they closed all their
accounts in Sweden. All the money that was in the
Petitioner's Swedish account, about 750,000 skr i.e.
Rs.42,75,000/- (Rupees forty two lacs seventy five
thousand only). This was the Petitioner's saving from
the money she got from the Swedish government as she
was taking care of Natasha who was handicapped. This
money was transferred into Respondent's account for
easy and convenient transfer to Australia where the
parties intended to buy a house and settle down. On
account of delay in getting the visa to Australia the
Petitioner got to Australia much after the cargo had
arrived. Consequently this time round settling down
into a new house was left to Respondent. The
Respondent while arranging the house found the
Petitioner money in the kitchen box and 'confiscated' on
the alleged ground that it was 'his' money. He refused to
return the money to her later. He also refused to
transfer the money the 750,000 skr Rs.42,75,000/-
(Rupees forty two lacs seventy five thousand only) that
was originally in the Petitioner's account back into an
account in the Petitioner's name. This was inspite of his
tax consultant telling him that if he didn't he would lose
as much as about 17-18000 A $ a year as extra tax. He
told the Petitioner that he did not trust her and also said
that she would run away with his money. The Petitioner
is entitled to the amount 750,000 skr i.e. Rs.42,75,00027 of 41
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28 fca-132.08,109.08(Rupees Forty two lacs seventy five thousand only) and
6500 AUD i.e. Rs.2,14,500/- (Rupees two lacs forty
thousand five hundred only) That is a total of
Rs.44,89,500/- (Rupees forty four lacs eighty nine
thousand five hundred only) which belongs to her
exclusively."37 Finally in paragraph 63, it is alleged on the date of filing of
the Petition, the income of the husband was 3,00,000 AUD per year.
38 In the written statement filed by the husband, in response
to paragraph 10 of the Petition, he has accepted that his take home
salary was initially 10,333 skr. The material averments in paragraph 41
quoted above are dealt with by the husband in paragraph 52 of the
written statement. The husband has dealt with paragraph 42 of the
Petition in paragraph 53 of his written statement. He has reproduced
the scheme of payment of child care allowance. He has stated that child
care allowance is paid to the parents till the child attains the age of 19
years and thereafter, the amount is credited directly to the account of
the child. He has stated that there are no monies, savings or otherwise
of the wife which are lying with him.
39 In paragraph 71 of his written statement, the husband has
stated that the wife has fraudulently taken an amount of Rs.25,000 AUD
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29 fca-132.08,109.08from his bank account. He prayed that the same may be returned to
him.
40 Now we turn to the evidence on record. The wife examined
herself by filing her affidavit-in-lieu of examination-in-chief. In
paragraph 55, she stated that she had saved the money which she has
got from Swedish Government for looking after her daughter and the
said amount of Rs.750,000 skr was in her bank account. She stated that
while they were proceeding to Australia, the said amount was
transferred to the account of the husband for facilitating easy transfer of
the amount. She stated that while in Australia, she used to save 50 AUD
a week and used to keep the said amount in a box kept in kitchen. She
stated that she had collected about 6500 AUD by February, 2003. She
stated that the said amount was taken away by her husband. She has
stated that when her husband joined Infosys, he was getting monthly
salary of 13972 AUD and that he had a bank balance of 3,78,000 AUD
in February, 2004. In paragraph 67, the wife stated that she had
undertaken to produce bank statements of her Karnataka Bank Account
from the year 2000 till the date. We must note here that the criticism
offered by the counsel for the husband was that the account statement
for the entire period (before 21st September, 2001) was not produced by
the wife.
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30 fca-132.08,109.0841 In her cross-examination, she accepted that she had ATM
Card through which she had an access to the husband's account. She
denied the correctness of the suggestion that she withdrew a sum of
Rs.2,14,500/- from bank account of her husband. She admitted that she
has not annexed any document to the Petition showing that her amount
equivalent to Rs.42,70,000/- was transferred to the husband's account.
She denied the correctness of the suggestion that she withdrew various
amounts between 21st January, 2004 to 27th January, 2004 from her
husband's account. However, she admitted that she was withdrawing
money from the said bank account of her husband by using ATM Card.
She accepted that the ATM Card was cancelled on 27 th or 29th January,
2004. In paragraph 78 of her deposition it is recorded that as
undertaken by her, she has produced statements of her Account in
Karnataka Bank from 21st September, 2001 to 28th March, 2006.
42 She was questioned on the entries in her bank account in
Karnataka Bank and especially entries made of transfer of various
amounts to Dignity Flat Owners and to Sukhmani Flat Housing Society.
She stated that the flat in Dignity Apartment belongs to her father. She
claimed that she does not have any interest in Sukhmani Co-operative
Housing Society situated near Airoli in Navi Mumbai. Her attention was
invited to various cash deposits shown in her Karnataka Bank Account.
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31 fca-132.08,109.08In paragraph 84, she has stated thus :-
"84. True to say that there is a cash deposit of Rs.20,000/- on
13.8.2003. On 29.4.2004 there is a cash deposit of
Rs.30,000/-. On 23.12.2004 there are two cheques of
Rs.4 lacs. On 11.1.2005 there are four deposits by
cheque of Rs.4,75,000/-, Rs.3,25,000/-, Rs.1,50,000/-
and Rs.1,50,000/-. On 28.2.2005 there is a deposit in
cash Rs.1,30,000/-. It is correct to say that as on
28.2.2005 there were 23,90,025/- in my bank account.
On 28.2.2005 three Demand Drafts were taken from the
account. Two demand Drafts of Rs.11,27,500/- and one
D.D. is of Rs.1,24,430/- were drawn on Karnataka Bank
Ltd. and not on my name. Not True to say that these
D.D.s were given to Karnataka bank for repayment of
loan. I am not the only person who can operate this
account. It is held jointly with my father. On 3.5.2005,
28.5.2005 two cheques are issued to Dignity flat owners
amount in to Rs.4,090/- and Rs.21,260/- from this
account. True to say that on 13.7.2005 amount of
Rs.1,50,000/- is deposited in the account. True to say
that on 19.7.2005 I have issued a cheque Rs.1,08,000/-
to Dignity flat owners. On 14.10.2005 cheque of
Rs.4090/- on 6.12.2005 cheque of Rs.3468/-. On
3.3.2006 cheque of Rs.4090/- they are issued to Dignity
flat owners. True to say that on 28.2.2005 two cheques
of 2 lacs each was deposited in this account. True to say
that on 10.1.2006, 10.2.2006 and 10.3.2006 there is a
deposit of Rs.25,000/- each. True to say that in my
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32 fca-132.08,109.08that I had aforesaid amounts deposited in my bank
account."43 We must note here that nothing is placed on record to show
that the said bank account in Karnataka Bank was jointly held by her
with her father. The extract of account does not mention the name of
her father. She stated that after 21 st July, 2005 there was no cash
deposit in her account. She accepted that she has not produced a copy
of statement of her Bank account in Sweden. In paragraph 86, there is a
cross-examination about the amounts withdrawn by her through ATM in
Australia between 26th February, 2003 to 17th December, 2003. She
again claimed in the cross-examination that in 2000-2001, amount of
7,50,000 skr were transferred from her bank account to her husband's
account. In paragraph 101 of the cross-examination, she stated that the
amounts withdrawn by her in Mumbai were not sufficient to start her
life in Mumbai.
44 Now turning to the evidence of the husband, he accepted
that he has sold his house in Stockholm and earned profits after paying
30% taxes. In paragraph 155 of his affidavit-in-lieu of examination-in-
chief he reiterated that wife has withdrawn 25,000 AUD from his
account fraudulently. In paragraph 168, the husband stated that the
wife is an qualified Architect who has a working experience of four
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33 fca-132.08,109.08years before the marriage and she will be able to secure a suitable job.
He stated that in his affidavit-in-lieu of examination-in-chief that no
amount has been transferred to his account from the wife's account. He
stated that in August, 2004 he joined Infosys on the base salary of
Rs.54,000/- p.m. He stated that on an average, his take home salary
would be around Rs.70,000 - 80,000 since August, 2004. He admitted
that he has not produced any document relating to his salary. Later on
he stated that he was employed with Infosys since October, 2002. He
accepted that in the year 2002, when he joined Infosys, he was at
Stockholm. He pointed out that for work, he travelled to different
countries such as Malaysia, Thailand, Philippines, Singapore, etc. He
stated in the cross-examination that from June, 2003 to November,
2003 a sum of 11,000 AUD was withdrawn by the wife. He relied upon
documents produced by the wife in Australian Court for stating this
factual aspect. He, however, admitted that he has not produced the said
documents before the Court. In paragraph 239, he accepted that till 25 th
December, 2003 his wife did not take up any employment.
45 Now, turning to the case made out by the wife as regards
transfer of amount from her bank account to the bank account of the
husband, it will be necessary to make a reference to the compilation of
documents on record. English translation of the letter dated 4 th May,
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34 fca-132.08,109.082006 addressed to the wife by Skandia Banken at Exhibit - 214 records
that from her bank account amounts of 5,00,000 skr and 2,50,000 skr
were transferred to Bank Account No.1160354830562 (the "said
Account"). In paragraph 259 of the cross-examination, the husband
stated that the said account was not his account. Exhibit - 216 is a
certificate recording that the husband was not the owner of the said
account.
46 We find that there is absolutely no evidence on record to
show that the amounts of 5,00,000 skr and 2,50,000 skr were
transferred to the bank account of the husband. In fact, the said account
is not the account of the husband. Therefore, the wife has failed to
substantiate the claim for refund of a sum of Rs.44,89,000/-.
47 Now turning to the issue of maintenance, as stated earlier,
the husband has admitted that the wife was not employed after their
marriage.
48 As far as the maintenance is concerned, it is necessary to
make a reference to the decision of the Apex Court in the case of
Manish Jain Vs. Akanksha Jain2. In paragraph 15, the Apex Court had
held thus :-
2 2017 SCC OnLine SC 31434 of 41
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35 fca-132.08,109.08"15. An order for maintenance pendente lite or for costs of
the proceedings is conditional on the circumstance that
the wife or husband who makes a claim for the same
has no independent income sufficient for her or his
support or to meet the necessary expenses of the
proceedings. It is no answer to a claim of maintenance
that the wife is educated and could support herself.
Likewise, the financial position of the wife's parents is
also immaterial. The Court must take into consideration
the status of the parties and the capacity of the spouse
to pay maintenance and whether the applicant has any
independent income sufficient for her or his support.
Maintenance is always dependent upon factual
situation; the Court should, therefore, mould the claim
for maintenance determining the quantum based on
various factors brought before the Court."(underline supplied)
49 The law laid down by the Apex Court for fixing
maintenance pendente lite will also apply for considering the prayer for
permanent alimony under Section 25 of the said Act.
50 Merely because the wife is an Architect, per se, this fact will
not make her dis-entitled to seek maintenance. In fact, the husband has
accepted that the wife was not employed. It is true that the wife
received about 6000 skr per month from the Swedish Government as
remuneration for looking after the daughter. The husband was working.
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36 fca-132.08,109.08Therefore, the wife was at home and was looking after the children
including the daughter. Therefore, receipt of the amount from Swedish
Government is strictly no ground to deny maintenance. The evidence on
record shows that in the year 2002, monthly salary of the husband was
about Rs.54,000/- per month. When the Petition was filed his salary
was allegedly 300,000 AUD.
51 Admittedly, after 2004 the wife has not withdrawn any
amount from the bank account of her husband as ATM Card was
cancelled. We have perused the extract of accounts of the wife with
Karnataka Bank. It is true that the statement of account produced is for
the period 21st September, 2001 to 28th March, 2006. The earlier
account was not produced by the wife. Perusal of the account shows
that there are large number of credit/deposit entries in the Bank
Account of Karnataka Bank.
Date Amount
13th July, 2005 1,50,000
11th January, 2005 4,75,000
11th January, 2005 3,25,000
11th January, 2005 1,50,000
11th January, 2005 1,50,000
28th February, 2005 2,00,000
28th February, 2005 2,00,000
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37 fca-132.08,109.0852 On 23rd December, 2004 there are two credit entries in the
sum of Rs.4 Lakhs in the said account. There is no satisfactory
explanation by the wife as to how she kept on receiving large amounts
till 28th February, 2005. Some of the said amounts were transferred by
her by Demand Drafts.
53 The last credit entries of large amounts are of 28 th February,
2005. There is no explanation for these credit entries. Therefore, wife
cannot be granted maintenance till 28th February, 2005 as there are
unexplained credit entries of large amounts in her Bank account.
Thereafter, there are no entries of the large amounts. There is no
material on record to show that the wife received any income from 1 st
March, 2005. There is no evidence brought on record to show that the
petitioner is the owner of the flats in Dignity Apartment or Sukhmani
Co-operative Housing Society. Therefore, we propose to grant
maintenance to the wife from 1st March, 2005. Moreover, it is not the
case of the husband that his income has been reduced.
54 Now the other question is what should be the quantum.
From the cross-examination of the husband, it can be easily inferred
that in the year 2005 he was receiving salary of Rs.70,000/- to 80,000/-
per month. Thereafter, his income must have gradually increased.
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38 fca-132.08,109.0855 The husband had responsibility of maintaining family of
four including the female child suffering from down syndrome.
Considering these aspects, we propose to fix the monthly maintenance
payable to the wife at Rs.25,000/- per month from 1 st March, 2005.
After expiry of the period of 5 years, the maintenance will have to be
increased by Rs.5,000/-. Therefore, from 1st March, 2010 to 28th
February, 2015 she will be entitled to maintenance at the rate of
Rs.30,000/- and from 1st March, 2015, she will be entitled to
maintenance at the rate of Rs.35,000/-.
56 As regards the allegation of the husband about the wife
withdrawing money from his bank account, there is absolutely no
evidence adduced by the husband.
57 Perusal of the judgment of the Family Court shows that the
only reason given by the Family Court for denying the maintenance to
the wife is that the bank statements produced by her show that she has
sufficient balance. This reason cannot be sustained when the wife
admittedly does not have regular source of income at least from 1 st
March, 2005.
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39 fca-132.08,109.0858 Accordingly, we dispose of the Appeals by passing the
following order :-
ORDER
(i) The wife shall carry out formal amendment to the
Petition for converting the same into a Petition under
Section 13B of the Hindu Marriage Act, 1955 within
four weeks from today. The Registry shall permit her to
do so;
(ii) The marriage solemnized between the parties on 25 th
June, 1989 is hereby dissolved by a decree of divorce
under Section 13-B of the Hindu Marriage Act, 1955;
(iii) Undertakings of the parties in paragraphs 2 and 3 of
the consent terms marked as 'C-1' are accepted;
(iv) The prayer of the wife for grant of custody of the
daughter is rejected;
(v) It will be open for the wife to communicate with her
son by telephone or via video conferencing after fixing
the time as per mutual convenience. It will be open for
the wife to visit Sweden for the purposes of meeting the
son. Necessary arrangement shall be worked out by the
husband and wife with consensus. If consensus cannot
be arrived at, it will be open for the parties to approach
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40 fca-132.08,109.08the Family Court for seeking necessary directions on
this aspect;
(vi) Whenever the son comes to India, it will be open for
the wife to meet him. Arrangements for meeting the
son in India shall be worked out by mutual consent. In
case of dispute, the parties are free to approach the
Family Court for seeking necessary directions;
(vii) The husband is ordered and decreed to pay wife
alimony of Rs.25,000/- per month from 1st March, 2005
till the end of February, 2010. From 1 st March, 2010 he
is ordered and decreed to pay alimony at the rate of
Rs.30,000/- per month till the end of February, 2015.
From 1st March, 2015 the husband is ordered and
decreed to pay alimony at the rate of Rs.35,000/- per
month;
(viii)We grant time of one year from today to the husband to
pay arrears of maintenance upto 31 st October, 2017. If
any interim maintenance is paid by him, he will be
entitled to adjustment;
(ix) From November, 2017 onwards, the husband shall
transfer the monthly maintenance at the rate of
Rs.35,000/- per month directly to the bank account of
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41 fca-132.08,109.08the wife on or before 15th day of every month. The wife
shall furnish her account details under her signature to
the Advocate for the husband within a period of four
weeks from today;
(x) Even the amount of arrears shall be paid by the
husband to the wife by direct transfer to her account;
(xi) The prayer for passing a money decree in the sum of
Rs.44,89,000/- with interest made by the wife is
rejected;
(xii) Considering the order of payment of maintenance
which we have passed, we hold that it is not necessary
to pass a separate order as to cost of litigation;
(xiii)The impugned judgment and decree of the Family
Court is modified on above terms. Both the Appeals are
disposed of on above terms;
(xiv) All pending Civil Applications do not survive and the
same are disposed of.
(SMT. ANUJA PRABHUDESSAI, J ) (A.S. OKA, J )
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