Bombay High Court
Swati Vedant Jatia vs Vedant Jatia on 20 April, 2018
Equivalent citations: AIRONLINE 2018 BOM 224
Author: Bharati H. Dangre
Bench: Bharati H. Dangre
Tilak 1/14 WP-13144-17
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 ::: Uploaded on - 02/05/2018 ::: Downloaded on - 03/05/2018 23:30:39 ::: Tilak 2/14 WP-13144-17 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 ::: Uploaded on - 02/05/2018 ::: Downloaded on - 03/05/2018 23:30:39 ::: Tilak 3/14 WP-13144-17 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. ::: Uploaded on - 02/05/2018 ::: Downloaded on - 03/05/2018 23:30:39 :::
Tilak 4/14 WP-13144-17 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 ::: Uploaded on - 02/05/2018 ::: Downloaded on - 03/05/2018 23:30:39 ::: Tilak 5/14 WP-13144-17 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 ::: Uploaded on - 02/05/2018 ::: Downloaded on - 03/05/2018 23:30:39 ::: Tilak 6/14 WP-13144-17 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. ::: Uploaded on - 02/05/2018 ::: Downloaded on - 03/05/2018 23:30:39 :::
Tilak 7/14 WP-13144-17 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 ::: Uploaded on - 02/05/2018 ::: Downloaded on - 03/05/2018 23:30:39 ::: Tilak 8/14 WP-13144-17 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 ::: Uploaded on - 02/05/2018 ::: Downloaded on - 03/05/2018 23:30:39 ::: Tilak 9/14 WP-13144-17 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 ::: Uploaded on - 02/05/2018 ::: Downloaded on - 03/05/2018 23:30:39 ::: Tilak 10/14 WP-13144-17 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 ::: Uploaded on - 02/05/2018 ::: Downloaded on - 03/05/2018 23:30:39 ::: Tilak 11/14 WP-13144-17 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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Tilak 12/14 WP-13144-17 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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Tilak 13/14 WP-13144-17 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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Tilak 14/14 WP-13144-17 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) ::: Uploaded on - 02/05/2018 ::: Downloaded on - 03/05/2018 23:30:39 :::