BOMBAY HIGH COURT
A.S.Oka & G.S. Patel, JJ.
Rachana Oswald Malhotra/D’silva —Appellant
versus
Oswald Fredrick D’sliva alias
Amar —Respondent
Family Court Appeal No.101 of 2006 alongwith Cross Objection ST.No.8214 of 2007
Decided on 10.12.2013

IMPORTANT POINT
A wife is entitled to be maintained in a life style consistent with that of her husband.

Headnote:Hindu Marriage Act, 1954 — Section 13B and 25 — Divorce by mutual consent — Petition for restitution of conjugal rights filed by husband was permitted to be converted to petition for divorce by mutual consent — Family Court after allowing both parties to lead evidence awarded maintenance at Rs.7000/- p.m. in favour of appellant — Appeal — Evidence and facts showed that respondent suppressed evidence and information of his true income — Income of respondent at the time Family Court decided the matter in 2006 could be Rs.30,000/- to Rs.40,000/- A wife was entitled to be maintained in a life style consistent with that of her husband — Considering the rising cost of living, maintenance allowance enhance to Rs.25,000/- p.m. from the date of judgment.

       Held: By its order dated 4th February 2011, this court increased the amount of monthly maintenance to Rs.10,000/- per month. That order was passed at an interim stage on Civil Application No.111 of 2010 in the present Appeal. On a more careful scrutiny of the record and proceedings as also the documents marked as evidence, we believe that this is a fit case where that amount pf maintenance should be increased. There is no manner of doubt in our minds that, at the relevant time, the respondent had significant assets. There is nothing to show that these have in any way decreased or diminished. From his cross examination, it appears that the respondent has been less than candid in disclosing his financial position. In assessing financial ability, one must have regard not only to disclosed sources of income but to the true state of affairs as revealed by cross examination. The respondent held a number of credit cards. There were large debits to his credit cards. He had a quite unusual number of bank accounts. All these seemed to show, at least at the relevant time, substantial balances. Some of those accounts were at premier multinational banks, which require high minimum balances to be maintained. The respondent subscribed to various services such as holiday time shares. These could hardly be said to be essential or necessary expenses. The only inference that can be drawn from the preceding discussion is that the respondent has suppressed evidence and information of his true income from the Family Court. Considering the respondent’s spending patterns, the holdings in his many bank accounts and the life style he maintained, even at the time when Family Court decided the matter in 2006, his income could not have been much less than Rs.30,000/- to Rs.40,000/- p.m. It is undoubtedly much higher today. A wife is entitled to be maintained in a life style consistent with that of her husband. Having regard, too, to the rising cost of living today, we are of the view that it would meet the ends of justice if the respondent is directed to pay to the appellant a sum of Rs.25,000/- per month as maintenance from the date of this judgment. (Para 25)

       (ii) Benami Transactions (Prohibition) Act, 1988 — Section 4 — Residential flat purchased by husband by his resources in the name of wife — Family Court rightly declared respondent husband to be real owner of said flat.

       Held: As regards the Lokhandwala Complex flat, there is the admission by the appellant that the flat had been purchased by the respondent. Before the Trial Court, the appellant sought to amend her written statement to contend that she was the owner of the flat and that the entire payment had been made out of her account. Given the explicit and unambiguous wording of her original written statement, the Trial Court rightly did not permit this amendment application. In the grounds of appeal, the appellant now invokes the provisions of the Benami Transactions (Prohibition) Act, 1988. Section 4 of hat act expressly bars any suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person claiming to be the real owner of the suit property. As against this is the categorical admission in pleadings and evidence by the appellant, and noted by the learned judge in paragraphs 8 to 10 of the judgment under appeal, that she has not directly contributed to the purchase of the flat. In our view, and in this state of the record, the learned single judge had little option but to grant the respondent the declaration he sought in respect of the Lokhandwala Complex flat.

       In his petition, the respondent himself has admitted that the Lokhandwala Complex flat is in the parties’ joint possession. In the cross-objections, however, the respondent claims that the appellant has left the flat and is staying with her parents. There is no material before us to so indicate. It is, therefore, not possible to hold at this stage that the respondent is in exclusive possession of the Lokhandwalla Complex flat. (Paras 26 & 27)

       Result: Appeal allowed. Cross Objections dismissed.

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