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Swati Vedant Jatia vs Vedant Jatia on 20 April, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.13144 OF 2017

Swati Vedant Jatia .. Petitioner
Versus
Vedant Vijay Jatia .. Respondent

Ms.Taubon F. Irani for the petitioner.

Mrs.Mrunalini Deshmukh with Mr.Sanjog Parab and Mr.Akshay
Patil i/b Vikrant D. Shetty for the respondent.

CORAM: SMT.BHARATI H. DANGRE, J
RESERVED : 28th MARCH 2018
PRONOUNCED : 20th APRIL 2018

JUDGMENT :-

1 The present Writ Petition is filed by the petitioner,

challenging the order dated 11th September 2017 passed by the

Family Court No.4, Mumbai, thereby partly allowing the

application filed by the petitioner seeking maintenance for herself

and for her two children. The petitioner is aggrieved by the said

order since she is awarded an amount of Rs.25,000/- per month

and an amount of Rs.25,000/- each has been awarded to her two

children, and according to the petitioner, the said amount is not

befitting the status of the parties. According to the petitioner, the

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Judge, Family Court has erred in granting the said amount without

taking into consideration the earnings of the husband, the

requirement of the wife and children and specifically considering

the status of the parties.

2 In order to appreciate the challenge raised in the

petition, it would be necessary to briefly deal with the facts

leading to the filing of present petition.

The marriage between the petitioner and respondent

was solemnized on 4th July 2006 at Mumbai. The petitioner

alleges that the respondent husband indulged himself into acts of

Adultery and inflicted cruel treatment to the wife. According to

the petitioner, after the marriage, they resided in their matrimonial

home which was located on 39th and 40th floor of Belvedere Court,

Mahalaxmi, Mumbai. On 8th July 2007, the child ‘Gayatri’ was

born, whereas on 19th August 2008, the petitioner gave birth to the

second child ‘Vir’. It is the specific case of the petitioner that she

and her children were subjected to physical and psychological

cruelty by respondent and his parents, and according to the

petitioner, there was a constant demand of dowry from his family,

resulting into filing of a complaint by the petitioner against the

respondent and his family at Agripada Police Station in Mumbai

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on 1st May 2013.

The respondent filed a petition in the Family Court in

Bandra for the custody of minor children. However, according to

the petitioner, though the petition was filed in the year 2013 when

the husband and wife were residing in the same house, the copy of

the petition came to be served upon the petitioner only after a

period of one year. The petitioner has narrated in detail of the

treatment meted out to her and her children and would allege

cruelty in all forms. The petitioner has instituted proceedings

under Section 12, 18, 19, 20, 22 and 23 of the Protection of

Women from Domestic Violence Act, 2005 in the Family Court at

Bandra, Mumbai, by filing a Miscellaneous Application in Petition

No.D-44 of 2013 filed by the respondent husband seeking custody

of the children. It is the case of the petitioner that she had moved

an application seeking an alternate accommodation for herself and

her children in view of the cruelty inflicted upon her and the

Family Court was pleased to allow the said application and had

directed the respondent to provide alternate accommodation to

the petitioner and the children for their residence, to be of similar

standard of the present flat in the same vicinity. According to the

petitioner, this order has not been complied by the respondent.

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3 On an application filed by the petitioner below

Exhibit-108, seeking interim maintenance for herself and her

children, the Family Court has passed an interim order. By the

application, the petitioner claimed maintenance of Rs.5,00,000/-

(Rupees Five lakhs) for herself and Rs.1,50,000/- (Rupees One

lakh Fifty thousand) for every child i.e. total amount of

Rs.8,00,000/- (Rupees Eight Lakhs) was claimed by her by way of

monthly maintenance. As against this, the Family Court has

granted maintenance of Rs.75,000/- in total to the petitioner and

her children and it is this order which is assailed by the petitioner.

4 Learned counsel Ms.Taubon Irani representing the

petitioner would submit that the petitioner has been subjected to

Domestic Violence, and in the petition filed by her, she has

narrated the details about the same. According to the petitioner,

she was practically made to stay away from her matrimonial home

and the children were made to stay in clubs and hotels and later

on, she shifted to Lodha Bellissimo. Ms.Irani would submit that on

an application, seeking access filed by the husband, on 27 th May

2016, the Family Court had granted vacation access to the father,

but the father sought assistance of the police for procuring the

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custody of the minor children. Ms.Irani would invite the attention

of the Court to the various instances narrated in the application

filed by her in the proceedings instituted under the Domestic

Violence Act and would submit that the respondent husband has

flouted the order passed by the Family Court, directing him to

provide alternate accommodation of the same standard of the

present flat in a similar vicinity. Ms.Irani would submit that the

parties belong to a higher strata of society and she has

demonstrated the high standard of living of the parties from the

application, and would submit that in this backdrop, she had

claimed maintenance to the tune of Rs.8 lakhs from the husband

in order to enable her and her children to maintain the same

standard of life which they were leading. Ms.Irani would submit

that the Family Court has erred in granting a paltry sum of

Rs.75,000/- as an amount of maintenance, which is not befitting

the standard which the parties are used to, and she therefore prays

for quashing and setting aside of the said order.

Per contra, Mrs.Mrunalini Deshmukh appearing for

the respondent would submit that the Court would be required to

examine whether a case has been made out for Domestic Violence

which would permit the wife to claim the interim maintenance by

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invoking the provisions under the said enactment. The learned

counsel invited the attention of the Court to the reply filed by the

petitioner and where certain allegations about the conduct of the

petitioner. She would submit that the husband was required to file

a petition under Guardians and Wards Act, 1890 in order to seek

custody of the children, and though an order of interim access was

granted, the petitioner has made every attempt to make the order

unworkable. As far as the status of the parties is concerned,

Mrs.Deshmukh would submit that the respondent husband is a

Director in a Company along with the other members of the Family

and it is the joint family business. She would submit that the flat

in which the parties were residing was in the name of the

Company and he is getting a fixed salary from the Company. As

regards the allegation that the husband has instituted proceedings

while they were residing under the same roof, it is submitted by

the learned counsel that though the proceedings were instituted by

the husband, on account of the ill-treatment meted out to him in

the capacity as a husband, the mediators were being involved and

the discord was being attempted to be settled and therefore, the

copy of the petition was not served upon the petitioner.

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Mrs.Deshmukh would also submit that in pursuance

of the order passed by the Family Court on 4 th September 2015,

directing the husband to provide alternate accommodation to the

petitioner and their children for their residence of a similar

standard of the present flat in the vicinity, she would take this

Court through the various e-mail exchanged between the counsel

for the parties. She would submit that by an e-mail dated 10 th

September 2015 addressed to the counsel for the petitioner, the

respondent had given the details of the flats having similar

standard of the present flat (Lodha Bellissimo) in the same vicinity

of Mahalaxmi). It is submitted that by the said e-mail, a request is

made to the petitioner to set up a date and time mutually

convenient to enable the broker to show the places as suggested.

The said e-mail then sets out the details of the flat along with its

location which is reflected as follows :-

Building Location Floor Bedrooms Area Property
Details
Lodha Mahalaxmi 30th 2BHK 1300 Semi furnished,
Primero bu harbour facing,
2 car parks
Lodha Mahalaxmi 45th 2 BHK 1300 Semi furnished,
Primero bu harbour facing,
2 car parks
Lodha Mahalaxmi 35th 3 BHK 1800 Semi furnished,
Primero bu 2 car parks

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She would further submit that in response to the said

communication, the wife has responded by stating that an

alternate accommodation shall be made available which should be

approximately of 3100 sqft 4 BHK with similar standard clubs and

other facilities. In the e-mails exchanged, it is stated that the

current rate of accommodation is Rs.2.88 lakhs approximately per

month, and if an alternate accommodation is not being arranged

for, then the said amount should be paid to the wife.

Mrs.Mrunalini Deshmukh would also invite my attention to the

order passed by the Family Court in execution proceedings

instituted by the wife vide Petition No.RD 429 of 2015 which is a

Darkhast Petition filed for recovery of Rs.9,90,000/- (Rupees Nine

lakhs Ninety thousand) from the judgment debtor in pursuance of

order dated 4th September 2015. She would submit that the said

Darkhast came to be rejected by an observation that the order was

to provide alternate accommodation by the respondent for their

residence of similar standard, but no where the amount of rent is

awarded to the petitioner as alternate prayer and the executing

court would not go beyond the judgment and decree. She would

submit that all the attempts to provide alternate residential

accommodation were refused by the petitioner wife by declining to

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accept the said accommodation on the ground that they are not

similar to the standard of the flat in which they were residing.

5 On perusal of the record placed before the Court,

including the compilations filed by the parties and on hearing the

learned counsel for the respective parties, the question to be

decided is whether an amount of maintenance awarded by the

Family Court is just and proper in the peculiar facts and

circumstances of the case.

6 The application seeking maintenance filed by the

petitioner wife gives the details of the standard of living of the

parties. It is alleged by her that the respondent is running a family

business in the name of Modern India Limited and he is the owner

of immovable property at Modern Mill Compound, Modern

Centre, Mahalaxmi, Mumbai, and residential flats at 38, 39 th and

40th floors of Belvedere Court Mahalaxmi. It is the specific

contention of the petitioner wife that she was subjected to cruelty

and was abused physically and verbally along with her children.

In an application filed under Section 12 of the Domestic Violence

Act, she prayed for multiple reliefs, including the relief of

maintenance of Rs.8,00,000/- (Rupees Eight lakhs) for herself

and her children, and also prayed that the husband be made liable

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to pay the school fees of the children and bear all their educational

expenses.

It is no doubt true that the parties have levelled

reckless allegation against one another and the issue of access of

the children have been mutually settled between the parties in the

three writ petitions filed before this Court and this Court, by an

order dated 28th March 2018 was pleased to dispose of the said

three writ petitions.

7 The claim of maintenance by the petitioner wife is

based on the allegation that she was subjected to cruelty and the

respondent had intimidated her and had left her without any

home, which left her with no option than to relocate herself to a

rental accommodation. According to her, she and her children are

literally left to the mercy of her relatives and it is the moral

responsibility of the husband to take care of the wife. However, on

perusal of the exchange of e-mails between the parties, it can be

seen that pursuant to the order passed by the Family Court on 4 th

September 2015, directing the husband to provide an alternate

accommodation, the husband had communicated to the wife about

the alternate residential accommodation in the same area. Perusal

of the said alternate accommodation would reveal that the flats

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which were offered to the petitioner wife are in the “Lodha

Primero” and the location is Mahalaxmi. The two options offered

are of 2 BHK, whereas one option is 3 BHK flat which is semi

furnished with two car parkings. The brochure of the building

“Lodha Primero” reflect that the said building premises have the

amenities like Gymnasium, full size swimming pool, play area for

children and club facilities as well as recreation sports and skill

building activities. The petitioner wife, however, refused to accept

the said apartment as an alternative accommodation on the

ground that it do not meet the same standard where she was

residing. During the course of hearing of the matter, the learned

counsel for the respondent husband has tendered on record a list

of similar flats available, and had asked the petitioner to exercise

her choice about the said flats. The respondent husband

categorically made a statement that he intends to honour the

order passed by the Court and he has no intention to leave the

wife and the children in a destitute condition, and he would

submit that the wife is at liberty to chose the flats which have been

offered with the assistance of the broker in the similar locality.

However, the respondent has specifically denied the contention of

the petitioner wife that the earlier residence in which they were

residing is a flat of 20,000 sq.ft.

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8 In any contingency, the wife is entitled for a flat to be

chosen as a residential accommodation which is of the same

standard. Same standard do not mean the standard by metes and

bounds, but it means the flat in a good residential locality and

preferably Mahalaxmi area since the matrimonial house was in the

said locality with all the amenities and facilities which the modern

flat scheme in Mumbai provide for, and it should be sufficient

enough to accommodate the mother and her two children and

permit them to continue them to lead the same life style which

they were earlier living. The offers made by the respondent

husband therefore, needs to be looked into by the petitioner wife

and it is open to the petitioner to chose one of the said flats, and

the husband is directed to make available the flat in Mahalaxmi

area with minimum 3 BHK with all the amenities. The respondent

is directed to provide such an accommodation to the petitioner

forthwith in compliance of the directions issued by the Family

Court on 4th September 2015, and the petitioner is directed to

accede to such an accommodation, and failure to do so, would not

make the husband liable for breach of the order passed by the

Family Court directing him to provide an alternate

accommodation.

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9 As far as the amount of maintenance is concerned,

though the petitioner had claimed an exorbitant amount, no

evidence has been placed on record as to the earning capacity of

the husband or the needs of the wife, except making a bald

statement that the Family was living a luxurious life. In any

contingency, the amount of maintenance to be awarded is a matter

of evidence and the Family Court by taking into consideration the

status of the parties, have directed the respondent to pay an

amount of Rs.75,000/- towards the wife and the two children by

taking into consideration their economical status and standard of

living. The Court has rightly observed that the issue of

maintenance as well as other reliefs sought under the Protection

of Women from Domestic Violence Act, is to be decided on merit

after leading evidence by both the parties and the parties would

avail opportunities to file their respective documents about

economical status. However, the provision for interim

maintenance prompted the Court to fix the amount of Rs.75,000/-

per month and it cannot be said that the said order is, in any way,

perverse or illegal. The Court has rightly observed that the said

amount would be just and sufficient for maintenance of the

children and the said amount is directed to be paid as an interim

maintenance.

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10 By the impugned order, the Court has also directed

the respondent to comply with the order as regards the alternative

accommodation and also directed the respondent to pay school

fees for the Academic Year and to continue to pay school fees

directly, till the disposal of the petition. Since no perversity is

found in the impugned order passed by the Family Court, the same

is upheld.

11 For the reasons recorded above, the present writ
petition is dismissed.

No order as to costs.

(BHARATI H. DANGRE, J)

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