Bombay High Court
Shri. Paul F. D'Souza vs Sm. Cecilia D'Souza on 14 March, 2019
Equivalent citations: AIRONLINE 2019 BOM 2260
Author: R.G. Ketkar
Bench: R.G. Ketkar
904-wp-229-2018.odt
Shailaja
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
WRIT PETITION NO.229 OF 2018
Paul F. D'Souza ] Petitioner
Vs.
Cecilia D'Souza ] Respondent
.....
Mr. R.R. Varma, learned Counsel for the Petitioner.
Mr. Clive D'Souza, learned Counsel for the Respondent.
.....
CORAM : R.G. KETKAR, J.
DATE : 14TH MARCH, 2019.
P.C. Heard Mr. Varma, learned Counsel for the petitioner and Mr. D'Souza, learned Counsel for the respondent at length.
2. By this Petition under Article 227 of the Constitution of India, the petitioner has challenged the order dated 16 th May, 2017 passed by the learned Judge, Family Court No.2, Bandra, Mumbai below Exhibit 6 in Petition No. A- 15 of 2014. By that order, the learned trial Judge allowed application Exhibit 6 made by the respondent herein and directed the petitioner to pay an amount of Rs.6,000/- per month from the date of filing of the application i.e from 20 th December, 2013 till disposal of the main Petition. The petitioner is further directed to pay Rs.10,000/- in lumpsum, towards litigation expenses.
3. The Petition was heard on 25th February, 2019. Mr. Prajapati upon taking instructions from the petitioner who was present in the Court stated that the petitioner will deposit entire arrears of maintenance @ Rs.6,000/- per 1 of 5 ::: Uploaded on - 16/03/2019 ::: Downloaded on - 16/03/2019 22:36:50 ::: 904-wp-229-2018.odt month from the date of application i.e from 20 th December, 2013 till 28th February, 2019 in this Court. He states that the petitioner has complied the said order by depositing amount of Rs.3,78,000/- in this Court as also directly paid an amount of Rs.10,000/- towards litigation expenses to the respondent.
4. In support of this Petition, Mr. Verma strenuously contended that the respondent is gainfully employed. He has invited my attention to paragraph 13 of the main Petition as also paragraph 2 of the interim application for maintenance. In paragraph 13 of the main Petition, the respondent contended that she was working from 1985 to 1992 and that the petitioner had not paid any maintenance to her and her children. He submitted that the contention raised by the respondent that the petitioner had not paid any maintenance to the respondent and their children is patently false. Mr. Verma submitted that in fact, the petitioner was regularly remitting the amount while he was in employment with Kuwait University. He has invited my attention to various remittances made by the petitioner from 1999 onwards.
5. Mr. Verma has also invited my attention to the written statement filed by the petitioner herein. He submitted that it has come on record the petitioner has acquired two premises one at Worli and other at Dadar and the said fact is not disputed. Nobody is residing in the premises at Worli. He is ousted from both the premises. He is residing at the mercy of his friend. He submitted that because of the complaints made by the respondent, the petitioner lost job of Kuwait University. Between 2011 and 2015, he was doing liasioning work in Kuwait. In 2015, he returned to India. Presently, he has no source of income. After retirement, he is not able to maintain himself. The respondent has not produced any material to show income of the petitioner. Without there being any material on record, the learned trial Judge has 2 of 5 ::: Uploaded on - 16/03/2019 ::: Downloaded on - 16/03/2019 22:36:50 ::: 904-wp-229-2018.odt directed the petitioner to pay maintenance @ Rs.6,000/- per month. As the petitioner himself is unable to maintain himself, it is not possible to pay exorbitant maintenance @ Rs.6,000/- per month to the respondent. For all these reasons, he submitted that the impugned order may be set aside.
6. On the other hand, Mr. D'Souza supported the impugned order and submitted that for the reasons recorded in paragraphs 5 and 6 of the impugned order, no case is made out for interfering with the impugned order.
7. I have considered the rival submissions advanced by learned Counsel for the parties. I have also perused the material on record. The petitioner has claimed that he lost job of Kuwait University in the year 2011 and he returned to India in the year 2015. A perusal of the finding recorded by the learned trial Judge in paragraph 5 shows that even after the petitioner lost job in the year 2011, he was sending money to the respondent from January, 2011 to December, 2011. The very fact that the petitioner was remitting the amount regularly to the respondent shows that the respondent had no source of income and she was dependent on the petitioner for her needs. In paragraph 6, the learned trial Judge observed that though the petitioner has come with the case that he has no source of income, it is for him to look after the wife's maintenance. In the past, he remitted Rs.10,000/- per month. As he is not in service now, the learned trial Judge reduced the amount from Rs.10,000/- to Rs.6,000/- per month. In my opinion, the maintenance awarded by the learned trial Judge is modest considering cost of living as on today. I do not find that the maintenance awarded by the learned trial Judge is exorbitant, excessive or oppressive.
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8. Mr. Verma submitted that in any case, the learned trial Judge was not justified in awarding maintenance from the date of the application. I do not find any merit in the submission of Mr. Verma. This question was considered by the Apex Court in Shail Kumari Devi Vs. Krishan Bhagwan Pathak, (2008) 9 SCC 632 and Jaiminiben Hirenbhai Vyas Vs. Hirenbhai Rameshchandra Vyas, (2015) 2 Supreme Court Cases 385. In paragraph 43 of Shail Kumari Devi (supra), the Apex Court held thus;
"43.We, therefore, hold that while deciding an application under Section 125 of the code, a Magistrate is required to record reasons for granting or refusing to grant maintenance to wives, children or parents. Such maintenance can be awarded from the date of the order, or if so ordered, from the date of the application for maintenance, as the case may be. For awarding maintenance from the date of the application, express order is necessary. No special reasons, however, are required to be recorded by the Court. In our judgment, no such requirement can be read in Sub section (1) of Section 125 of the Code in absence of express provisions to that effect".
9. This case was considered in Jaiminiben Hirenbhai Vyas (supra). In paragraph 6 the Apex Court has observed thus;
"In Shail Kumari Devi v. Krishan Bhagwan Pathak, (2008) 9 SCC 632; Para's 39-41 this Court dealt with the question as to from which date a Magistrate may order payment of maintenance to wife, children or parents. In Shail Kumari Devi, this Court considered a catena of decisions by the various High Courts, before arriving at the conclusion that it was incorrect to hold that, as a normal rule, the Magistrate should grant maintenance only from the date of the order and not from the date of the application for maintenance. It is, therefore, open to the Magistrate to award maintenance from the date of application. The Court held, and we agree, that if the Magistrate intends to pass such an order, he is required to record reasons in support of such Order. Thus, such maintenance can be awarded from the date of the Order, or, if so ordered, from the date 4 of 5 ::: Uploaded on - 16/03/2019 ::: Downloaded on - 16/03/2019 22:36:50 ::: 904-wp-229-2018.odt of application for maintenance, as the case may be. For awarding maintenance from the date of the application, express order is necessary".
In view of the above decisions, I do not find that the learned trial Judge committed any error in directing the petitioner to pay maintenance from the date of the application. Hence, the Petition fails and the same is dismissed.
10. The respondent is allowed to withdraw the amount deposited by the petitioner in this Court unconditionally. The details of the bank account of the respondent are as under;
"Cecilia Paul D'Souza, S.B. Account No.005701034618 ICICI Bank Prabhadevi Branch, IFSC Code: ICIC0000057"
Amount shall be remitted in the account of the respondent forthwith. Order accordingly.
[R.G. KETKAR, J.] 5 of 5 ::: Uploaded on - 16/03/2019 ::: Downloaded on - 16/03/2019 22:36:50 :::