Karnataka High Court
Shri Jignesh Barfiwala vs Smt. Deeptee K Barfiwala on 21 October, 2020
Author: B.M.Shyam Prasad
Bench: B. M. Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF OCTOBER 2020
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT PETITION NO.20178/2015 (GM-FC)
BETWEEN :
SHRI. JIGNESH BARFIWALA,
S/O SHRI. RAMESH CHANDRA BARFIWALA
AGED ABOUT 40 YEARS
PERMANENT ADDRESS:
FLAT NO.14, B-3, SUKUMAR SOCIETY,
DAYALDAS ROAD, VILE PARLE EAST,
MUMBAI - 400 057.
PRESENTLY AT:
GENPACT HEADSTRONG CAPITAL
MARKETS, BLOCK 5A, 1ST FLOOR,
PRITECH PARK,
BELLANDUR VILLAGE,
MARATHAHALLI OUTER RING ROAD,
BENGALURU - 560 103.
...PETITIONER
(BY SMT. M.P. GEETHA DEVI, ADVOCATE)
AND
SMT. DEEPTEE K. BARFIWALA,
W/O SHRI. JIGNESH BARFIWALA,
AGED ABOUT 38 YEARS,
R/AT APARTMENT NO. 1131,
WINDMILL OF YOUR MIND, NO.331,
2
ROAD 5B, EPIP ZONE, WHITEFIELD,
BENGALURU - 560 048.
...RESPONDENT
(BY SRI. N.T. PREMANATH, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS IN MC.551 OF 2012 ON THE FILE OF THE HON'BLE VI
ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT AT
BANGALORE. QUASH THE ORDERS DATED 08.08.2014 ON IA
NO.8 & ORDER DATED 09.04.2015 ON I.A. VIDE ANNEXURE-L &
M RESPECTIVELY AND THE SALARY ATTACHMENT ORDER
DATED 30.04.2015 AT ANNEXURE-N IN C.MIS.NO.551 OF 2012
ON THE FILE OF THE VI ADDITIONAL PRINCIPAL JUDGE FAMILY
COURT.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 14.10.2020 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THIS COURT PASSED
THE FOLLOWING:
ORDER
This petition is filed by the husband - respondent in Criminal Miscellaneous No.551 of 2012 on the file of the Principal Family Court Judge, Bengaluru (for short, 'the Family Court'), a proceeding initiated by the respondent - wife under section 125 of Criminal Procedure Code, 1973 (for short, Cr.P.C). The Family Court on 19.06.2014, partly allowed the petitioner's application under Section 91 of Cr.P.C 3 directing the respondent to produce her appointment letter after she returned to India in the month of December 2012. However, the petitioner's application under section 91 of Cr.P.C was for a direction to the respondent to produce (i) her Income-Tax Returns filed while residing in the United States of America until her return to India i.e., for the period between 2003 and 2013, (ii) the Appointment Letters issued to her by her employers such as M/s Oracle Financial Services Software, M/s IGate Patni, M/s Syntel Inc., and M/s Polaris Software Labs and (iii) her appointment letter as of December 2012. It is undisputed that respondent in compliance with the Family Court's order dated 19.6.2014 has produced her Income Tax Papers for the year 2012-2013.
2. The Family Court has also allowed the respondent's application (IA No. 8) under Section 91 of Cr.P.C by its order dated 08.08.2014 directing the petitioner to produce the documents as mentioned in the application. The 4 respondent in this application has sought for a direction to the petitioner to produce (i) his current employment agreement/s and Salary Certificate/s, (ii) Tax Receipts for the years from 2005-2014, (iii) Credit Card Balances and (iv) his other financial credentials like investments held by the petitioner with his family members. The petitioner in compliance with this order dated 08.08.2014 has filed his Income Tax Returns for the year 2012-2013, his Transfer Letter from the United States of America to India and Salary details as of the date of such order.
3. Subsequently, the Family Court by the Order dated 09.04.2015 has directed the petitioner to pay interim maintenance at the rate of Rs.30,000/- per month from March 2013 onwards allowing a period of two months to pay the arrears. On 30.4.2015, the Family Court has issued orders attaching the Petitioner's salary on the ground that the maintenance arrears are not paid.
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4. The petitioner has filed the present writ petition impugning the following orders:
• the Family Court's order dated 08.08.2014 allowing the respondent's application viz., IA No.8 directing the petitioner to produce all documents as mentioned in the respondent's application - Annexure L;
• the Family Court's Order dated 09.04.2015 directing the petitioner to pay to the respondent interim maintenance at the rate of Rs.30,000/- per month from March 2013 within a period of two months from the date of the order - Annexure H; and • the Family Court's order dated 30.04.2015 ordering the attachment of the petitioner's salary - Annexure N.
5. This Court on 12.5.2015 granted ad interim order of stay of the impugned orders directing the petitioner to pay maintenance to the respondent at the rate of Rs.15,000/- per 6 month, and on 07.07.2015, this Court directed the petitioner to pay, in addition to the amount of Rs.15,000/- per month, 25% of the arrears with the petitioner being entitled to set off for any amount paid in lumpsum. Further, this Court on 26.9.2015, clarified that the proceedings before the Family Court in Criminal Miscellaneous No. 551 of 2012 can proceed on merits. However, the proceeding, which was dismissed for default 20.7.2017, is recently i.e. on 03.09.2020 restored for consideration on merits.
6. It is undisputed that during the pendency of the present proceedings an attempt is made to bring about a settlement amongst the parties, and in this regard the parties were directed to explore the possibilities of selling Flat No. C1- 1131, Windmills of your mind, No. 331 Road 5B, EPIP Zone, Whitefield Bengaluru (for short, 'the Flat'), which is jointly owned by the parties to the proceedings and the petitioner's father, and share the sale proceeds amongst the three owners. But, this effort has failed. However, the learned 7 counsel for the parties submit that the Flat is presently rented to a tenant and the rentals are equally shared between the parties and the petitioner's father. The learned counsel for the petitioner submits that the rental being paid by the tenant is much lower than the market rent and the rent is finalised at the respondent's instance. But, the learned counsel for the respondent contests these submissions.
7. The petitioner has filed IA No. 1 of 2017 in the present proceedings seeking leave to place on record certain subsequent events. In this application the petitioner has stated that he has had to relocate to Bengaluru because of the multiple proceedings initiated by the respondent and the difficulties for his father in coordinating the conduct of all the cases from his place of residence viz., Mumbai. The petitioner has had to relocate to India at a much lower salary package than he was receiving in the United States of America. The Petitioner because of the respondents conduct has also lost his job in the year 2016. He has remained unemployed. The 8 petitioner has suffered financial losses because the respondent took forcible possession of the Flat. This application has been allowed by this Court on 20.4.2018.
8. The respondent has filed application IA No. 2/2017 for a direction to the petitioner to pay arrears of maintenance for the period commencing from the month of September 2016 till the date of application. The respondent in this application has detailed her medical condition stating that she was constrained to undergo a surgery in the month of October, 2014. She has stated that she was also constrained, despite her medical condition, to take up employment with M/s GIEOM, Bengaluru; she was initially on probation for a period of three months, and in the month of September 2016 she was confirmed as a permanent employee. But, because of her persisting health condition, she has resigned with effect from December 2016. The petitioner has stopped paying maintenance even at the rate of Rs.15,000/- per month from the month of September, 2016. 9
9. The petitioner has filed IA No. 1 of 2018 for modification of this Court's interim order dated 12.05.2015 contending inter alia that in the subsequent proceedings initiated by the respondent for divorce in MC No. 1973/2014 she has filed a memo on 09.04.2018 stating that the Flat is vacated with effect from December 2016 and pursuant to ongoing negotiations for settlement, the apartment was put up for sale. But the sale has not been finalized. Significantly, the respondent has categorically stated in this Memo that she does not wish to receive any maintenance from the petitioner.
10. These two applications viz., IA No. 2 of 2017, and IA No. 1 of 2018 are pending consideration. The learned counsel for the parties submit in unison that the Flat is currently rented and the rentals are being shared equally amongst the three owners i.e., the parties to the proceedings and the petitioner's father and that each of them receiving 20,000 per month. The merits of the impugned orders dated 8.8.2014 and 30.04.2015 as well as the continuing 10 controversy between the petitioner and the respondent as regards the respondent's right to interim maintenance will have to be examined in the light of the subsequent events as mentioned above..
11. The family Court has allowed the respondents application (IA No.8) perfunctorily. The relevant part of this order dated 08.08.2014 reads, "This court on 19.06.2014 has directed the petitioner to produce her appointment letter in the job at Bangalore where she worked after she returned to India in December 2012. As per the said direction, the petitioner has produced tax returns from 01.04.2012 to 13.03.2013 in order to assist the court for determining this case for maintenance filed by her. Now the petitioner is also seeking direction to the respondent to produce the above said documents in order to arrive at a proper conclusion regarding exact maintenance to be awarded to the petitioner. Therefore, I feel that if the respondent has also directed to produce the above said documents it will assist the Court in 11 arriving at a proper conclusion. Therefore I feel that no harm will be caused by summoning the respondent to produce the above said documents sought by the petitioner."
12. It is obvious that the Family Court has not considered the nature of the documents sought for by the respondent. The respondent apart from seeking the petitioner's current Employment Agreement/s and Salary Certificate/s and Tax Returns filed for the period between 2005 to 2014, has sought for a direction to produce documents described as 'credit card balances and his other financial credentials like investments et cetera jointly held by his father and respondent' without furnishing the details of the investments or the details of the credit cards. Though the petitioner has challenged this order dated 08.08.2014, he has furnished his Transfer Letter, salary details as of that date and Income Tax Returns for the year 2012-2013. 12
13. It is settled that a Court in exercise of the discretion vested under section 91 of Cr.P.C can issue directions for production of those documents which are either "necessary" or "desirable" for the purposes of investigation or enquiry or trial or other proceedings but cannot be invoked for the purposes of a roving enquiry1. The Family Court but for cursorily referring to the documents requested by the respondent, has not discussed the nature of the documents or the availability of the documents as against the test of those documents being either necessary or desirable for the purposes of deciding the fact in issue. The Family Court should have, in the facts and circumstances of the case, considered the permissibility of allowing the application (IA No. 8) without the details..
14. The learned counsel for the petitioner and the respondent were vociferous in their respective submissions 1 State of Orissa v. Debendranath Padi (2005) 1 Supreme Court Cases page 568 13 relying upon the assertions made in the petition/objection statement as well as the pending applications. They tried to emphasise, from their respective clients' perspective, that both the petitioner and the respondent are qualified professionals, that both of them have been well employed both in India and in the United States of America at different points of time and that both of them were constrained to relocate to India, giving up better prospects, because of the other.
15. Further, the Family Court order of attachment of salary dated 30.04.2015 is highly arbitrary given the indisputable fact that the Family Court, while granting interim maintenance at the rate of Rs.30,000 per month by its order dated 09.04.2015, had allowed two months time to the petitioner. The family Court, without reasoning why there should be an attachment of salary even before the expiry of the period of two months, has ordered attachment. As such, neither the impugned orders dated 8.8.2014 nor 30.04.2015 14 can be sustained and are liable to be quashed.
16. The learned counsel for the petitioner argued that the petitioner, who is without employment because of the respondent's conduct, is unable to pay any maintenance to the respondent and the respondent, because of her station in life and her statement in the allied proceedings, is not entitled to claim maintenance. The learned counsel also argued that the petitioner is not obliged to pay any compensation to the respondent because he is without employment after he was politely removed from service by tendering his resignation and the respondent, who is more qualified than him and who has been in employment throughout, has been unequivocal in the Memo filed by her in MC No. 1973/2014 that she is not interested in receiving any compensation
17. The learned counsel for the respondent on the other hand, argued that the respondent, who had to quit her employment because of her health conditions induced by the 15 stressful life that she is compelled to undergo because of the petitioner, is unable to maintain herself and therefore she is entitled for maintenance.
18. However, the learned counsel for both the petitioner and the respondent rely upon certain subsequent circumstances and turn of events post the impugned order to buttress their respective contentions. The criminal Miscellaneous No. 551 of 2012, which was dismissed for default on 20.07.2017, has been restored for reconsideration on merits by order dated 3.9.2020. The interim orders of this Court is that the petitioner has to pay 25% of the arrears at the rate of Rs.30,000/- as awarded by the Family Court with the petitioner being entitled to claim the set off of any amount paid in lumpsum and continue to pay at the rate of Rs.15,000/- per month. There is no dispute that the petitioner has paid certain lumpsum and also at the rate of Rs.15,000 for the months up to September 2016. During the pendency of this writ petition, though the parties have made 16 some effort to bring about a thaw by putting up the Flat for sale, have not been successful: they have been able to rent out the Flat and share the rentals between them and the petitioner's father with each receiving a sum of Rs.20,000 per month.
19. The question of arrears of maintenance payable by the petitioner to the respondent is examined in the light of the fact that, during the pendency of this writ petition, there is an interim arrangement for renting out the Flat and sharing the rents in terms of which the respondent is receiving a sum of Rs.20,000 per month and the proceedings before the Family Court stood dismissed for default for over three years with the respondent's petition being dismissed on 20.07.2017 until it was restored with effect from 3.9.2020. There is no dispute that the petitioner has paid interim maintenance as ordered by this Court until the month of September 2016. The respondent, in the light of these circumstances, would not be entitled for arrears of maintenance as of 31.08.2020. 17
20. In the circumstances discussed above, this Court is of the considered view that it would be just and reasonable to quash the impugned orders dated 08.08.2014 (Annexure L), order dated 09.04.2015 (Annexure - M) and order dated 30.04.2015 (Annexure-N) calling upon the VI Additional Principal Judge, Family Court, Bengaluru, to reconsider the application for grant of interim maintenance to the respondent for the period commencing from September 2020, also for payment towards petitioner's future medical expenses subject to deduction towards the rentals received from the Flat. The petitioner and the respondent should also be given liberty to file their respective affidavits in support of their respective stands. It would be needless to observe that the Family Court must consider the respective stands in the light of the subsequent events as pleaded by the parties. Therefore, the following:
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ORDER
a) The writ petition is allowed in part, and the impugned orders dated 08.08.2014 (Annexure L), order dated 09.04.2015 (Annexure - M) and order dated 30.04.2015 (Annexure-N) in Criminal Miscellaneous No.551 of 2012 on the file of the VI Additional Principal Judge, Family Court, Bengaluru are quashed;
b) The respondent's application for interim maintenance (IA No.2 ) is restored for
reconsideration by the VI Additional Principal Judge, Family Court, Bengaluru for grant of interim maintenance from 1.9.2020 and for future medical expenses to the respondent with liberty to both the petitioner and the respondent to file their respective affidavits to place on record subsequent events.
c) The VI Additional Principal Judge, Family Court, Bengaluru shall decide the application (IA No. 2) as aforesaid in the 19 light of the subsequent events placed on record by the parties uninfluenced by the impugned orders.
Sd/-
JUDGE SA/-