Bombay High Court
Abhishek S/O Govindlal Kothari vs Sujata W/O Abhishek Kothari And Others on 22 October, 2020
Author: Manish Pitale
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 7975 OF 2019
1) Sujata w/o Abhishek Kothari
Age - 42 years, Occ. Household,
2) Ananya d/o Abhishek Kothari
Age - 14 years, Occ. Student,
3) Adwait s/o Abhishek Kothari
Age - 12 years, Occ. Student, .. PETITIONERS
Petitioner Nos.2 and 3 thr. their
natural guardian Petitioner No.1 their mother
All R/o Plot No.166, Shivaji Nagar,
Flat No.D/4, 3rd Floor, Kanchan Vimal
Apartment, Nagpur - 440 010
...V E R S U S...
Abhishek s/o Govindlal Kothari
Age - 42 years, Occ. - Business,
r/o Opp, Agyaram Devi Mandir,
Subhash Chandra Bose Road,
Nagpur 440 018 .. RESPONDENT
AND
WRIT PETITION NO. 1864 OF 2020
Abhishek s/o Govindlal Kothari
Aged about 41 years, Occ. - Business,
R/o Plot No. 170 - A, Kothari House,
Near Agyaram Devi Mandir,
Subhash Chandra Bose Road,
Nagpur 440 010 .. PETITIONER
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...V E R S U S...
1) Sujata w/o Abhishek Kothari
Aged about 41 years, Occ. business
R/o Plot No.166, Flat No.D/4,
Third Floor, Kanchan Vimal Apartment
Shivaji Nagar, Opp. to Park, Nagpur - 440010
2) Ananya d/o Abhishek Kothari
Aged about - 14 years, Occ. Student,
Minor, and hence, through her mother
Sujata w/o Abhishek Kothari
Aged about 41 years, Occ. business.
R/o Plot No.166, Flat No.D/4,
Third Floor, Kanchan Vimal Apartment
Shivaji Nagar, Opp. to Park, Nagpur - 440010
3) Adwait s/o Abhishek Kothari
Aged about - 12 years, Occ. Student,
Minor, and hence, through her mother
Sujata w/o Abhishek Kothari
Aged about 41 years, Occ. business.
R/o Plot No.166, Flat No.D/4,
Third Floor, Kanchan Vimal Apartment
Shivaji Nagar, Opp. to Park, Nagpur - 440010 .. RESPONDENTS
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Shri. R. R. Srivastava, Shri. S. H. Bhatia and Shri. Shrikant Yedlewar
counsel for petitioner Nos.1 to 3 in W. P. No. 7975/2019.
Shri. Deoul Pathak, Smt.Arpita Joshi Pathak and Shri. Abhijit
Deshpande counsel for sole respondent in W. P. No.7975/2019.
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CORAM :- MANISH PITALE J.
RESERVED ON :- 24/09/2020
PRONOUNCED ON :- 22/10/2020
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COMMON JUDGMENT
These writ petitions are heard finally with the consent of learned counsel for the rival parties. (2) Both these writ petitions challenge order dated 23/10/2019 passed by the Family Court No.2, Nagpur, whereby an application filed by petitioners in Writ Petition No.7975/2019, under Section 24 of the Hindu Marriage Act, 1955, has been partly allowed. Writ Petition No.7975/2019 has been filed by the wife and children, being aggrieved by rejection of her claim of interim maintenance during the pendency of the divorce petition filed by her. Writ Petition No.1864/2020 has been filed by the husband, being aggrieved by grant of maintenance amount of Rs.20,000/- per month to each of the two children from the wedlock. The parties are being referred to in this judgment as per their status in Writ Petition No.7975/2019, for the sake of convenience.
(3) The petitioner No.1 and respondent got married on 29/01/2001 at Nagpur and they have two children. ::: Uploaded on - 22/10/2020 ::: Downloaded on - 23/10/2020 06:24:45 :::
4 / 30 01-Judgment WP 7975.19 & 1864.20.odt There was marital discord between the parties after some years of marriage, as a result of which legal proceedings were initiated by them against each other. Respondent had filed a divorce petition against the petitioner, which was dismissed in default in the year 2015 and the respondent did not file any appeal against the same. The petitioner had initiated proceeding against the respondent under the provisions of the Protection of Women from Domestic Violence Act, 2005, which was dismissed, but an appeal against the same is pending before the Appellate Court. It is in this backdrop, that the petitioner filed a petition for grant of divorce against the respondent in the year 2017, under Section 13(1)(i)(i-
a)(i-b)(iii) of the Hindu Marriage Act, 1955. In the said divorce petition the petitioner filed an application under Section 24 of the aforesaid Act for grant of interim maintenance during the pendency of the divorce petition, for herself and the two children. The petitioner claimed a sum of Rs.4,00,000/- towards interim maintenance for herself and the two children. In the application for interim maintenance, the petitioner claimed that the respondent had various sources of income and that therefore, prayer made in the said application was justified.
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(4) The respondent appeared before the Family
Court and resisted the prayers made in the said application for interim maintenance. It was claimed that the house (apartment) in which the petitioner No.1 and children were living was provided by the respondent. It was further submitted that since he was taking care of the educational needs of the children and the petitioner was self sufficient, the aforesaid application for interim maintenance deserved to be dismissed. The parties filed affidavits and documents in support of their respective claims. (5) By the impugned order dated 23/10/2019, the Family Court only partly allowed the application for interim maintenance filed under Section 24 of the aforesaid Act. The Family Court found that the petitioner had not approached the Court with clean hands as details of her financial status were not divulged at the outset before the Court and on this basis her claim was rejected. The Family Court found that the children deserved payment of interim maintenance @ Rs.20,000/- per month each and accordingly the application stood partly allowed.
(6) The petitioner filed Writ Petition No.7975/2019 challenging the said order. This Court issued notice ::: Uploaded on - 22/10/2020 ::: Downloaded on - 23/10/2020 06:24:45 ::: 6 / 30 01-Judgment WP 7975.19 & 1864.20.odt in the said writ petition on 04/12/2019. On subsequent date of listing a grievance was raised on behalf of the petitioner that even the school fees of the children was not being paid and that the amount as directed by the Family Court to be paid to the children was also not paid. Thereafter, during pendency of the Writ Petition, the respondent paid the school fees. On 23/06/2020 i.e. after eight months of passing of the impugned order, the respondent filed Writ Petition No.1864/2020, before this Court challenging the impugned order to the extent of grant of interim maintenance to the children. The said Writ Petition was directed to be listed with Writ Petition No.7975/2019, filed by the petitioner. On 25/08/2020, this Court found that on the one hand the respondent was taking repeated adjournments before this Court on one or the other ground and on the other hand he was in arrears of payment of maintenance amount granted to the children. After taking into account some amounts that were paid by the respondent, this Court directed the respondent to pay an amount of Rs.5,00,000/- to the petitioner within three weeks of the order, failing which Writ Petition No.1864/2020, filed by the respondent, was directed to be dismissed without reference to Court. On 14/09/2020, when the writ petition was listed before this Court, the respondent paid amount of Rs.5,00,000/- to the ::: Uploaded on - 22/10/2020 ::: Downloaded on - 23/10/2020 06:24:45 ::: 7 / 30 01-Judgment WP 7975.19 & 1864.20.odt petitioner and this Court recorded that the direction given in order dated 25/08/2020, stood complied. Accordingly, the writ petitions were directed to be listed for hearing on 24/09/2020, on which dated they were finally heard by this Court. (7) Mr. R. R. Shrivastav, learned counsel appearing for the petitioner submitted that the impugned order, to the extent that it deprived the petitioner of grant of interim maintenance, was wholly unsustainable and even the quantum of maintenance granted to the children was on the lower side, considering the sources of income of the respondent and the life style which the petitioner and the children were enjoying when the parties were living together as a family. It was submitted that the petitioner had placed on record details of bank accounts, as also income tax returns and other documents showing number of foreign trips undertaken by the respondent and the lavish life style he was enjoying, to indicate that the prayer made in the application for interim maintenance was justified. It was submitted that the respondent was earning not only from his business of travel and tourism, which was running for number of years, but he also had huge rental income from various godowns and properties, apart from handsome returns from huge investments made in mutual ::: Uploaded on - 22/10/2020 ::: Downloaded on - 23/10/2020 06:24:45 ::: 8 / 30 01-Judgment WP 7975.19 & 1864.20.odt funds and other such instruments. It was submitted that details of such sources of income were placed on record before the Family Court, but a perusal of the impugned order would show that there was not even an iota of discussion on the same. It was submitted that the Family Court erroneously rejected the entire claim of interim maintenance of the petitioner on the alleged ground that she had not come with clean hands before the Court, as she had allegedly suppressed certain details of her bank accounts. It was submitted that the said approach was wholly inappropriate and it was against the mandate of Section 24 of the aforesaid Act. (8) The learned counsel for the petitioner relied upon various judgments of High Courts, including judgments of this Court, to support the contentions raised in the petition. Specific reliance was placed on judgment of this Court in the case of Shlokha Narendra Chhabria vs. Narendra A. Chhabria (Judgment and order dated 07/12/2018 passed in Writ Petition No. 594 of 2017). It was submitted that the Family Court ought to have followed the dictum laid down in the said judgment while considering the application for interim maintenance filed by the petitioner, but the impugned order demonstrated that no such effort was made by the Family Court. On this basis it was ::: Uploaded on - 22/10/2020 ::: Downloaded on - 23/10/2020 06:24:45 ::: 9 / 30 01-Judgment WP 7975.19 & 1864.20.odt submitted that the impugned order deserved to be set aside and the application filed by the petitioner seeking interim maintenance for herself and the children under Section 24 of the aforesaid Act deserved to be allowed in its entirety.
(9) On the other hand, Mr. Deoul Pathak, learned counsel appearing for the respondent submitted that the Family Court was justified in rejecting the claim of interim maintenance of the petitioner as she had sought to mislead the Family Court. It was submitted that she had claimed that she was jobless, while documents brought before the Court on the insistence of the respondent, demonstrated that she had regular income from content writing and that therefore, there was no necessity for grant of interim maintenance to her. As regards grant of interim maintenance to the children, it was submitted that the responsibility of the children was equally that of the petitioner, which aspect the Family Court had erroneously ignored, while passing the impugned order. It was submitted that the respondent was ready to take care of the school fees of the children and therefore, the impugned order deserved to be modified to that extent. It was further submitted that the circumstances created by the COVID - 19 crisis ought to be taken into consideration by this ::: Uploaded on - 22/10/2020 ::: Downloaded on - 23/10/2020 06:24:45 ::: 10 / 30 01-Judgment WP 7975.19 & 1864.20.odt Court, while considering the writ petitions filed by the parties, because the business of the respondent had been adversely hit and there was hardly any income of the respondent during the present circumstances. The learned counsel for the respondent informed this Court that the aforesaid judgment on which reliance was placed on behalf of the petitioner i.e. Shlokha N. Chhabria vs. Narendra Chhabria (supra) was subject matter of challenge before the Hon'ble Supreme Court and that the parties in that case had settled the matter, as a consequence of which the Hon'ble Supreme Court had disposed of the appeal in terms of the compromise between the parties. It was fairly stated by the learned counsel appearing for the respondent that the said development did not mean that the aforesaid judgment of the High Court was set aside, but it was submitted that this aspect could be taken into consideration by this Court. Apart from this, the learned counsel for the respondent relied upon judgment of the Hon'ble Supreme Court in the case of K. Srinivas Rao vs. D.A. Deepa (2013) 5 SCC 226, Manish Jain vs. Akansha Jain (2017) 15 SCC 801 and Amarjit Kaur vs. Harbhajan Singh and another (2003) 10 SCC 228, to emphasize upon the factors that ought to be taken into consideration by the Court, while considering an application under Section 24 of the aforesaid Act. ::: Uploaded on - 22/10/2020 ::: Downloaded on - 23/10/2020 06:24:45 :::
11 / 30 01-Judgment WP 7975.19 & 1864.20.odt (10) Heard learned counsel for the rival parties and perused the material on record. Before considering the material on record and the submissions made on behalf of the rival parties, it would be appropriate to consider Section 24 of the aforesaid Act and the approach expected from the Court while dealing with applications made under the said provision. Section 24 of the aforesaid Act pertains to grant of interim maintenance pendente lite and expenses of proceedings and applications under the said provision that can be made by either the wife or the husband. The said provision facilitates either party to approach the Court for grant of monthly amount towards interim maintenance and payment of expenses of the proceedings, when it is demonstrated that such party does not have independent income sufficient for meeting the said needs. It is relevant that the said provision specifically requires the Court to consider the income of the petitioner and that of the respondent, while passing appropriate orders. Thus, the mandate of the said statutory provision is that the Court is required to consider the material on record to reach a conclusion regarding the extent of income of the rival parties and then to pass an order regarding right of the petitioner approaching the Court for grant of interim maintenance pendente lite and expenses of proceedings and if so the quantum to be granted. ::: Uploaded on - 22/10/2020 ::: Downloaded on - 23/10/2020 06:24:45 :::
12 / 30 01-Judgment WP 7975.19 & 1864.20.odt (11) In the case of Amarjit Kaur vs. Harbhajan Singh (supra) the Hon'ble Supreme Court observed that once it is found that the petitioner approaching the Court under Section 24 of the Act is found to have no independent income sufficient for supporting his/her needs, the Court has to grant of interim maintenance and the discretion thereafter left with the Court is only with reference to the quantum to be granted.
(12) In the case of Neeta Rakesh Jain vs. Rakesh Jeetmal Jain (2010) 12 SCC 242, the Hon'ble Supreme Court held that although Section 24 of the Act confers wide discretion on the Court, the section provides the guideline, inasmuch as while fixing interim maintenance, the Court has to give due regard to the income of the respondent and that of the petitioner. In the case of Manish Jain vs. Akansha Jain (supra), the aforesaid dictum has been reiterated by the Hon'ble Supreme Court.
(13) In the case of Shlokha Chhabria vs. Narendra Chhabria (supra), this Court has referred to various judgments on the question of grant of interim maintenance and by setting aside order of the Family Court, direction was given to pay interim maintenance of Rs.75,000/- per month to the wife, in the facts ::: Uploaded on - 22/10/2020 ::: Downloaded on - 23/10/2020 06:24:46 ::: 13 / 30 01-Judgment WP 7975.19 & 1864.20.odt and circumstances of the said case. In the said judgment, this Court has taken into consideration the material on record indicating luxurious life style of the respondent husband and the requirement to pass an appropriate order in favour of the petitioner wife so that she is able to live life of about the same standard that she was living with the respondent. This Court has also referred to judgment of the Delhi High Court in the case of Bharat Hegde vs. Smt.Saroj Hegde [AIR 2007 Delhi 197], wherein factors required to be taken into consideration while deciding a claim of interim maintenance have been specifically stated. These are guiding principles for considering applications for interim maintenance under Section 24 of the said Act.
(14) At this stage it would be relevant to refer to judgment of this Court in the case of Gananath Vishwanathan Shenoy vs. State of Maharashtra (Judgment and order dated 13/02/2019 passed by this Court in Criminal Writ Petition No.1027 of 2018), wherein it has been held that dismissal of proceedings under the Protection of Women from Domestic Violence Act, would not be relevant for denying claim of interim maintenance, when appeal against such dismissal was pending. This becomes significant because, in the present case, it was ::: Uploaded on - 22/10/2020 ::: Downloaded on - 23/10/2020 06:24:46 ::: 14 / 30 01-Judgment WP 7975.19 & 1864.20.odt sought to be submitted on behalf of the respondent that since the proceeding initiated by the petitioner under the Protection of Women from Domestic Violence Act had been rejected, the Family Court ought not to have considered the application under Section 24 of the aforesaid Act regarding interim maintenance. It is an admitted position that the petitioner has filed an appeal against rejection of her application under the Protection of Women from Domestic Violence Act and that the same is pending. Therefore, the said contention raised on behalf of the respondent is rejected.
(15) Taking into consideration the aforesaid statutory provision i.e. Section 24 of the said Act and the guiding principles evolved in judgments rendered by the Hon'ble Supreme Court, it would be necessary to consider the correctness or otherwise of the impugned order passed by the Family Court. A perusal of the impugned order shows that throughout the order, the Family Court has emphasized repeatedly only on one aspect i.e. the petitioner having approached the Family Court with unclean hands and thereby disentitling herself from consideration of grant of interim maintenance. It appears that there were certain documents concerning one of the bank accounts of the petitioner which were not placed on record and it was only after ::: Uploaded on - 22/10/2020 ::: Downloaded on - 23/10/2020 06:24:46 ::: 15 / 30 01-Judgment WP 7975.19 & 1864.20.odt specific directions were sought on behalf of the respondent that such documents came on record before the Family Court. The said documents indicated that the petitioner had intermittent income from certain publishers for content writing. According to the Family Court, this was enough to deprive the petitioner of any claim towards interim maintenance. The material on record shows that the petitioner had placed on record detailed documents indicating the various sources of income of the respondent and the life style enjoyed by him. But there is no reference to the said documents and there is no analysis conducted by the Family Court regarding the extent of income of the respondent, while rejecting the claim of the petitioner, only on the ground of her having approached the Court with unclean hands. At the same time, the Family Court has granted maintenance to the children by directing the respondent to pay amount of Rs.20,000/- per month to each child. A perusal of the impugned order shows that the approach adopted by the Family Court is not in terms of jurisdiction expected to be exercised by the Family Court under Section 24 of the said Act. This is because the said provision specifically mandates that the Court has to take into consideration the income of the petitioner, as also that of the respondent to come to a conclusion regarding entitlement of the ::: Uploaded on - 22/10/2020 ::: Downloaded on - 23/10/2020 06:24:46 ::: 16 / 30 01-Judgment WP 7975.19 & 1864.20.odt petitioner for maintenance and the quantum of maintenance to be paid. In the present case, the Family Court has failed to analyze the material on record either to come to a conclusion regarding sufficiency or otherwise of the income of the petitioner or the extent of income of the respondent for deciding the aspect of entitlement of the petitioner towards maintenance and the quantum of maintenance payable to her. This is in the teeth of the aforesaid guidelines laid down by the Hon'ble Supreme Court in the above referred judgments with regard to the mandate of Section 24 of the aforesaid Act. It is surprising that the Family Court has not analyzed the detailed material placed on record by the petitioner to show that the respondent has various sources of income, including income from business, rental income and returns from huge investments. There is no reference to even the income tax returns of the respondent placed on record, thereby indicating that the Family Court clearly erred in rejecting the claim of the petitioner towards interim maintenance.
(16) This Court is of the opinion that when the material pertaining to the bank accounts and details of sources of income of the petitioner were indeed available before the Family Court, even if some of the material came on record after specific ::: Uploaded on - 22/10/2020 ::: Downloaded on - 23/10/2020 06:24:46 ::: 17 / 30 01-Judgment WP 7975.19 & 1864.20.odt directions given by the Family Court, the claim of the petitioner could not have been rejected without appropriate analysis of the extent of income of the petitioner and the income of the respondent from different sources. The approach adopted by the Family Court was, therefore, wholly erroneous while rejecting the claim of interim maintenance of the petitioner. (17) As a consequence, this Court has taken into consideration the material on record regarding the income of the petitioner as well as the respondent to come to a conclusion as to whether the petitioner is entitled to grant of interim maintenance and if so to what extent.
(18) The material on record shows that the petitioner is living with two children in an apartment which she claims was purchased by her with financial help from her parents. Although the respondent denies the same and claims that the house and the furniture therein was provided by him, the material on record does show that the petitioner and the children do have a place of residence. In other words the petitioner and the children are not required to pay rent for residential accommodation. The bank account details of the petitioner, referred to by the Family ::: Uploaded on - 22/10/2020 ::: Downloaded on - 23/10/2020 06:24:46 ::: 18 / 30 01-Judgment WP 7975.19 & 1864.20.odt Court in the impugned order also show that the petitioner seems to have had intermittent income for content writing. The material on record does not show that the petitioner is having a regular job and a fixed regular income. It appears that she has been paid some amounts by publishers for content writing. The amounts, as noted by the Family Court appeared to be different on each occasion and therefore, it cannot be said that the petitioner has a steady source of income.
(19) On the other hand, the material on record indicates that the respondent is running business of tours and travel for a long period of time and there have been large amounts of credits in the accounts of the respondent through such business. Although the credit amounts placed on record show that crores of rupees have been credited in various bank accounts maintained by the respondent during the course of business, there is some substance in the contention raised on behalf of the respondent that such receipts include transfers made by clients for booking air tickets and tourist packages and further that salaries of employees are also required to be paid by the respondent for running the business. Nonetheless, the credit of such huge amounts has not been denied by the respondent. Apart from this, the petitioner ::: Uploaded on - 22/10/2020 ::: Downloaded on - 23/10/2020 06:24:46 ::: 19 / 30 01-Judgment WP 7975.19 & 1864.20.odt placed on record before the Family Court, as also this Court, details of the various sources of the income of the respondent. These include rental income from godowns, number of insurance and other policies of the respondent, as also returns from investments made in mutual funds and other such instruments. The petitioner has also given details of seven credit cards being used by the respondent and the luxurious life style enjoyed by him. The respondent has not been able to deny such material either before the Family Court or this Court. The material on record does show that the respondent is having vehicles and properties showing that he is enjoying a luxurious life style. It is relevant that while the respondent failed to abide by the directions given by the Family Court for payment of interim maintenance to the children, in March 2020, he bought a brand new car, which fact is also not denied by the respondent.
(20) In the face of such material, the learned counsel appearing for the respondent sought to contend that this Court ought to take into consideration circumstances created by the COVID-19 crisis and its adverse impact on the travel and tourism industry, while considering the contentions of the rival parties. It was submitted on behalf of the respondent that the ::: Uploaded on - 22/10/2020 ::: Downloaded on - 23/10/2020 06:24:46 ::: 20 / 30 01-Judgment WP 7975.19 & 1864.20.odt business at present had been adversely affected and therefore, income of the respondent to that extent has been reduced. It was further submitted that this Court ought to take into consideration the income tax returns of the respondent placed on record by the petitioner herself, which demonstrate that the income of the respondent was not as high as claimed by the petitioner. On this basis it was submitted that since the petitioner could support herself through her income, even the quantum of maintenance granted to the children needed to be reduced. It was suggested that the impugned order be modified to the extent that the respondent would pay the school fees of the children and he would pay Rs.5000/- each per month to the children towards interim maintenance. It was claimed that the impugned order of the Family Court ought to be modified to that extent. (21) This Court is of the opinion that the respondent has not been able to place any contra material on record to successfully dislodge the material placed on record, on behalf of the petitioner, to indicate that the respondent has various sources of income, that he is financially highly well placed and that he is enjoying a luxurious life style. It is also settled law that when matrimonial dispute arises and the question of grant of interim ::: Uploaded on - 22/10/2020 ::: Downloaded on - 23/10/2020 06:24:46 ::: 21 / 30 01-Judgment WP 7975.19 & 1864.20.odt maintenance is to be considered by the Court, the quantum of maintenance payable has to be determined by taking into consideration the fact that the party claiming maintenance (in this case wife) deserves to be granted such quantum of maintenance that would ensure that the said party is able to live the same standard of lifestyle that such a party was enjoying when there were no matrimonial dispute. In the present case, there is sufficient material on record to show that the parties when living together were having a high standard of living and that even today the respondent is living a luxurious life. This is a circumstance to be taken into consideration by the Court, while passing order on the application filed under Section 24 of the said Act. The 11 factors identified by the Delhi High Court in the case of Bharat Hegde vs. Smt.Saroj Hegde (supra) which have been referred to with approval by this Court in its judgment in the case of Shlokha N. Chhabria vs. Narendra Chhabria (supra), also deserve to be taken into consideration. The said factors are as follows :-
"1. Status of the parties.
2. Reasonable wants of the claimant.
3. The independent income and property of the claimant.::: Uploaded on - 22/10/2020 ::: Downloaded on - 23/10/2020 06:24:46 :::
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4. The number of persons, the non applicant has to maintain.
5. The amount should aid the applicant to live in a similar life style as he/she enjoyed in the matrimonial home.
6. Non-applicant's liabilities, if any.
7. Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.
8. Payment capacity of the non applicant.
9. Some guess work is not ruled out while estimating the income of the non applicant when all the sources or correct sources are not disclosed.
10. The non applicant to defray the cost of litigation.
11. The amount awarded under S. 125 Cr.PC is adjustable against the amount awarded under S.24 of the Act."
(22) Applying the aforesaid factors, it becomes clear that the Family Court in the present case completely misdirected itself in not considering the detailed material placed on record by the petitioner as regards various sources of income of the respondent, indicating the status of the parties. The respondent cannot claim any benefit of the circumstances created by the ::: Uploaded on - 22/10/2020 ::: Downloaded on - 23/10/2020 06:24:46 ::: 23 / 30 01-Judgment WP 7975.19 & 1864.20.odt COVID-19 crisis from March, 2020 onwards to state that he is not liable to pay any amount towards maintenance to the petitioner and that the quantum of interim maintenance granted to the children needs to be reduced. This is because the said crisis may have had adverse impact on the travel and tourism business run by the respondent, but there is nothing to show that his other sources of income have been adversely affected in any manner. As noted above, the material placed on record shows that the respondent has substantial income from other sources like rental income, returns on investments like mutual funds and other instruments and returns from other properties also. The material on record does show that the life style of the respondent has not been adversely affected by the aforesaid crisis at all and it is an admitted position that even in March, 2020, the respondent purchased a brand new car, while at the same time refusing to pay the extent of interim maintenance granted to the children by the Family Court.
(23) The emphasis placed by the respondent on the income tax returns, to contend that the extent of his income is not as high as claimed by the petitioner is also misplaced. In case of Vinod Dulerai Mehta vs. Kanak Vinod Mehta [AIR 1990 BOMBAY ::: Uploaded on - 22/10/2020 ::: Downloaded on - 23/10/2020 06:24:46 ::: 24 / 30 01-Judgment WP 7975.19 & 1864.20.odt 120], this Court has taken judicial notice of the fact that income tax returns filed by the husband are not conclusive and cannot be taken as the sole guide for determining the entitlement of the wife towards maintenance and that other considerations or material can be relied upon. In the present case, even the income tax returns on record indicate the various sources of the income of the respondent and they cannot be said to be material for rejecting the claim of interim maintenance of the petitioner. The other detailed material placed on record showing the various sources of income and the luxurious life style enjoyed by the respondent does indicate that the respondent cannot escape liability to pay reasonable amount of maintenance to the petitioner, to ensure that the petitioner and the children are able to enjoy nearly the same standard of living that they were enjoying when there was no matrimonial dispute between the parties.
(24) This Court finds no substance in the contentions raised on behalf of the respondent in Writ Petition No.1864/2020, wherein the respondent seeks to deprive the children of the quantum of maintenance granted by the Family Court. The material on record also indicates that the respondent failed to pay even the amounts granted by the Family Court to the ::: Uploaded on - 22/10/2020 ::: Downloaded on - 23/10/2020 06:24:46 ::: 25 / 30 01-Judgment WP 7975.19 & 1864.20.odt children and it was after eight months that he challenged order of the Family Court, after he had appeared in the writ petition filed by the petitioner before this Court. It was only after this Court passed specific orders that the respondent paid certain amounts towards arrears of amounts payable to the children, thereby indicating the approach and attitude of the respondent even qua his own children on the aspect of grant of interim maintenance. It appears that the relations between the petitioner and respondent have reached a state of extreme bitterness. There are serious allegations and counter allegations made by the petitioner and respondent against each other. But this Court refrains from making any comment upon the same, because these would be subject matter of proceedings for divorce pending before the Family Court. In this proceeding, this Court is concerned only with the impugned order passed by the Family Court under Section 24 of the aforesaid Act.
(25) As noted above, this Court has found that the approach adopted by the Family Court while rejecting the claim of interim maintenance of the petitioner, is wholly unsustainable and it is in the teeth of not only Section 24 of the aforesaid Act, but the ::: Uploaded on - 22/10/2020 ::: Downloaded on - 23/10/2020 06:24:46 ::: 26 / 30 01-Judgment WP 7975.19 & 1864.20.odt guidelines laid down in that context by the Hon'ble Supreme Court and this Court in various judgments.
(26) Taking into consideration the material on record and upon applying the mandate of Section 24 of the said Act, as also the guiding principles laid down in the aforesaid judgments, this Court finds that the petitioner is entitled to interim maintenance, after taking into consideration the intermittent amounts that she has earned through content writing. Once this Court finds that the petitioner is entitled to grant of interim maintenance under Section 24 of the aforesaid Act as per the law laid down by the Hon'ble Supreme Court in the case of Amarjit Kaur vs. Harbhajan Singh (supra), the only discretion that remains with the Court is to decide the reasonableness of the amount and quantum of interim maintenance payable to the petitioner. While exercising such discretion the Court is expected to take into consideration the entire material on record and some amount of guess work cannot be ruled out.
(27) In view of the above, taking into consideration the extent of income of the respondent manifested by various sources of his income, this Court is of the opinion that the ::: Uploaded on - 22/10/2020 ::: Downloaded on - 23/10/2020 06:24:46 ::: 27 / 30 01-Judgment WP 7975.19 & 1864.20.odt petitioner is entitled to Rs.70,000/- per month as interim maintenance. But, the fact that she has been earning some amount from content writing cannot be ignored and therefore, a sum of Rs.10,000/- per month deserves to be deducted from the said amount. This Court finds that the application filed by the petitioner under Section 24 of the said Act deserves to be partly allowed in her favour by directing the respondent to pay sum of Rs.60,000/- per month towards interim maintenance from the date of the application moved before the Family Court. The quantum of interim maintenance granted by the Family Court to the children does not deserve any interference, considering the extent of income of the respondent from various sources and the needs of the children. The petitioner has also failed to make out any case for enhancement of quantum of interim maintenance payable to the children and this Court finds that the prayer made on behalf of the petitioner for allowing her application filed under Section 24 of the said Act in its entirety also cannot be granted.
(28) It is sad that due to the bitterness in the relationship between the petitioner and the respondent, the children are also suffering. The respondent has paid certain amounts towards school fees and arrears of maintenance, only ::: Uploaded on - 22/10/2020 ::: Downloaded on - 23/10/2020 06:24:46 ::: 28 / 30 01-Judgment WP 7975.19 & 1864.20.odt after specific directions given by this Court. The said amounts need to be taken into consideration while calculating arrears payable to the children in terms of the impugned order passed by the Family Court.
(29) In view of the above, Writ Petition No.1864/2020 filed by the respondent is dismissed and Writ Petition No.7975/2019 filed by the petitioner is partly allowed as follows :-
(1) Clause (2) of the impugned order rejecting interim maintenance payable to the petitioner is quashed and set side.
(2) Clause (3) of the impugned order granting interim maintenance of Rs.20,000/- per month each to the two children i.e. total Rs.40,000/- per month towards interim maintenance from date of filing of the application i.e. 29/05/2017, is upheld and confirmed.
(3) The respondent shall pay an amount of Rs.60,000/- per month towards interim maintenance ::: Uploaded on - 22/10/2020 ::: Downloaded on - 23/10/2020 06:24:46 ::: 29 / 30 01-Judgment WP 7975.19 & 1864.20.odt from the date of filing of the application before the Family Court i.e. 29/05/2017 to the petitioner No.1 in Writ Petition No.7975/2019.
(4) The arrears of interim maintenance amount upto October, 2020 payable to the petitioner No.1 in Writ Petition No.7975/2019, shall be paid by the respondent to her within a period of eight weeks from today. Similarly, the respondent shall pay arrears of interim maintenance to the two children i.e. petitioner Nos.2 and 3 in Writ Petition No. 7975/2019, in terms of clause (3) of the impugned order of the Family Court, within the aforesaid period of eight weeks. The amount already paid by the respondent towards school fees and further amount paid as per direction of this Court during pendency of the writ petitions shall be adjusted.
(5) The respondent shall regularly pay the amount towards interim maintenance to the petitioners in Writ Petition No.7975/2019, total amount of Rs.1,00,000/-per month (Rs.60,000/- per month to petitioner No.1 and Rs.20,000/- per month each to ::: Uploaded on - 22/10/2020 ::: Downloaded on - 23/10/2020 06:24:46 ::: 30 / 30 01-Judgment WP 7975.19 & 1864.20.odt petitioner Nos.2 and 3) by 5th of each month from November, 2020 onwards.
(30) Writ Petitions are disposed of in above terms. All pending applications also stands disposed of.
JUDGE KOLHE/P.A. ::: Uploaded on - 22/10/2020 ::: Downloaded on - 23/10/2020 06:24:46 :::