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BOMBAY HIGH COURT
Ranjit More, J.
Mrs. Amee Sharan Desai —Petitioner
versus
Mr. Sharan Sanjeev Desai —Respondent
Writ Petition No.8825 of 2014
Decided on 23.8.2016
Counsel for the Parties:
For the Petitioner:Mr. Rohan J. Cama i/b. Ms. Sapna Rachure, Advocate
For the Respondent:Mrs. Manjula Rao, Advocate
IMPORTANT POINT
While awarding maintenanced the Court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions.
Headnote:Hindu Adoptions and Maintenance Act, 1956—Section 18—Interim maintenance—Petitioneer wife claimed interim maintenance @ Rs. 2,50,000 pm for herself and Rs.1,50,000/- pm for minor daughter—Trial Court awarded maintenance @ Rs.15,000/- pm for daughter but refused to grant maintenance in favour of petitioner wife holding that she had independent income source—Writ—Petitioner was living with her mother and business shown to be carried on by her was infact that of her mother—Law regarding grant and quantum of maintenance to wife—Court has to consider status for parties, their respective needs capacity of husband to pay and his own reasonable expenses—In a petition earlier filed by petitioner under Dy. Act respondent in reply affidavit had offered to pay Rs.50,000/- pm as maintenance to applicant besides rent for alternate accomodation—Bank account statements and credit card statements of respondent demonstrated significant income, high spending power and high standard of living of parties during conjugal life—Parties were from high strata of society—Interim maintenance at Rs. One lakh granted in favour of petitioner—Daughter was taking education in reputed school—Maintenance in her favour enhanced to Rs. 25,000/- pm.
Held: The law regarding grant and quantum of maintenance to the wife is now fairly settled. The Apex Court in Jasbir Kaur Sehgal v. District Judge Dehradun, (1997) 7 SCC 7, has held thus:—
“The Court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate.” (Para 5)
The averments of the Respondent made in the reply to DV Act proceedings coupled with the bank statements and credit card statements as well as document regarding hotel stay and purchase voucher demonstrate significant income, high spending power and high standard of living of the parties during their cohabitation. The parties are from the highest strata of the society and have enjoyed status as such. (Para 13)
Taking totality of the facts and circumstances of the case into consideration especially the deposits and withdrawals of amounts by the Respondent as disclosed from the bank statement and debit card statements and statement made by the Respondent in his reply in the DV Act proceedings, in my opinion, the ends of justice would be met if the Respondent is directed to pay to the Petitioner interim maintenance @ Rs.1 lac per month from the date of the impugned order.
So far as the interim maintenance to daughter – Samara is concerned, the family Court has granted it @ Rs.15,000/- per month. The record reveals that she is taking education in very reputed school in South Mumbai. The Petitioner wife has submitted the Chart of Expenses towards the education of Samara. On the basis of the same she is claiming interim maintenance @ Rs.1,50,000/- per month. I am however of the opinion that taking into consideration the lifestyle of the parties and standard of education which Samara is taking, the amount of interim maintenance should be fixed at Rs.25,000/- per month. (Paras 18 and 19)
Result: Petition allowed.
Ranjit More, J.—This writ petition arises from an interim maintenance proceedings under section 18 of the Hindu Adoptions and Maintenance Act, 1956. By the application at Exhibit-17 filed in MJ Petition No.C-4 of 2013, the Petitioner–wife claimed interim maintenance @ Rs.2,50,000/- per month for herself and @ Rs.1,50,000/- per month for the minor daughter of the couple. By the order impugned in the petition, the Family Court, Mumbai at Bandra has refused to grant any interim maintenance to the Petitioner–wife, however, daughter of the couple is granted interim maintenance @Rs15,000/- per month.
2. Briefly, the facts are that the Petitioner and the Respondent got married on 25th November 2005. During the wedlock, on 31st December 2008 daughter Samara was born to Petitioner and Respondent. It is the case of the Petitioner that on 15th November 2012 she was constrained to leave her matrimonial home and come to reside at Mumbai with her mother. The Petitioner thereafter on 30th November 2012 filed a petition being MJ Petition No.C-04 of 2013 in the family Court seeking maintenance for herself and daughter–Samara and permanent custody of Samara. On 27th December 2012 the Petitioner also filed a proceeding under sections 12, 18, 20, 22 and 23 of the Protection of Women From Domestic Violence Act, 2005 before the Court of Additional Chief Metropolitan Magistrate, 40th Court at Girgaum, Mumbai being CC No.637/SS/2012, [hereinafter referred to as “DV Act proceedings”]. It is the case of the Petitioner that in this DV Act proceedings, the Respondent by filing reply showed his willingness to pay to the Petitioner an amount of Rs.50,000/- per month towards the interim maintenance in addition to the payment of rent for separate residence and for any unforseen expenses of Samara and / or the Petitioner. The Petitioner was, however, advised to withdraw the DV Act proceedings and accordingly she withdrew the same on 26th August 2013 and thereafter on 8th October 2013 in MJ Petition No. C-04 of 2013, filed an application at Exhibit-17 seeking interim maintenance for herself @ Rs.2,50,000/- p.m. and for daughter Samara @Rs.1,50,000/- p.m.. The Family Court granted interim maintenance to daughter – Samara @ Rs.15,000/- per month but interim maintenance to the Petitioner – wife is refused on the ground that she has independent source of income. This order is challenged by filing present petition under Articles 226 & 227 of the Constitution of India.
3. The Petitioner–wife contends that she has no independent source of income. The business which is shown to be carried on by her is in fact that of her mother. At any rate, the Income Tax Returns which are relied upon by the Respondent and Family Court reflect very meagre purported income of the Respondent which is not at all commensurate with the status of the parties and is not sufficient to lead the standard of living to which parties were accustomed during their cohabitation. It was also contended that income referred to in the Income Tax Returns of the Petitioner is in fact the income of the Petitioner’s mother, the small portion of which was deposited in a joint account held by the Petitioner and her mother. It is contended that the said money / income has not been used by the Petitioner at all and the record reveals that the amount in the said bank account is withdrawn by the Petitioner’s mother. The Petitioner also contended that the Respondent suppressed his income. The documents relied upon before the Family Court and this Court demonstrate that the Respondent has significant income. It also discloses the high spending power and high standard of living of the parties during the time of their cohabitation. The Petitioner contended that taking into consideration the high income and high spending power of the Respondent, coupled with the lifestyle which parties led during their cohabitation, she is entitled to interim maintenance @ Rs.2,50,000/- per month. So far as daughter–Sam
