IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE WRIT PETITION NO. 6438 OF 2008 WRIT PETITION NO. 6438 OF 2008 WRIT PETITION NO. 6438 OF 2008 Mr.Kailash Shankarlal Mantry. ... Petitioner. V/s. Mrs.Sunita Kailash Mantry & Anr. ... Respondents. Mohan Pillai i/b. Madhavi Pillai for the petitioner. Ms.Shital Sonawane for respondent No.1. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. DATED: 17th February 2009. DATED: 17th February 2009. DATED: 17th February 2009. P.C.: P.C.: P.C.: ---- ---- ---- . Heard. . Perused petition. 2. This petition filed under Article 227 of the Constitution of India is directed against the orders of the Family Court, Bandra in Petition No.A-918/2003, one dated 18th December, 2006 passed below Exh.8 granting interim maintenance and another dated 10th August, 2007 passed below Exh.33 dismissing review against the said order. Factual Matrix : Factual Matrix : Factual Matrix : -------------- -------------- -------------- 3. The factual matrix reveals that the respondent- wife filed petition for divorce under section 13(1) (i) and (ia) of the Hindu Marriage Act, 1955. The parties were sent for conciliation, but no settlement could take place. 4. The respondent- wife filed interim application for maintenance on 26th March, 2004. By an order dated 18th December, 2006, interim maintenance to each of the daughters at the rate of Rs.20,000/- per month was granted. There is no order granting maintenance in favour of the respondent- wife. The petitioner- husband moved an application for review of the order dated 18th December, 2006 which came to be rejected by an order dated 10th August, 2007. 5. The respondent- wife filed execution application for recovery of the maintenance. The Family Court has passed order of attachment and sale of the attached property of the petitioner. The terms of proclamation were settled on 25th August, 2008. 6. The petitioner has now come up with the present petition to challenge the order dated 18th December, 2006 whereby maintenance at the rate of - 3 - Rs.20,000/- is granted to each of the daughters followed by order rejecting review dated 10th August, 2007 and prayed for setting aside consequential order of attachment and sale of the property of the petitioner. Submissions : Submissions : Submissions : ----------- ----------- ----------- 7. The first contention raised by learned counsel appearing for the petitioner is that one of the daughters being major she is not entitled to claim maintenance. The second contention is that the daughter being major, ought to have moved independent application to claim maintenance for herself and that the application at the instance of the respondent- wife was not maintainable. The third contention raised in this behalf is that the petitioner does not have sufficient income so as to pay Rs.20,000/- per month to each of the daughters. Fourthly, learned counsel appearing for the petitioner would contend that the respondent- wife is hailing from a rich business family having sufficient and substantive income from her various business enterprises, as against this, he submits that the petitioner is a Chartered Accountant by profession. He has no - 4 - savings. He lost heavily in the shares/ speculation business due to his bad luck and, today, he is in heavy debts to the tune of Rs.3 to 4 crore. 8. Learned counsel for the respondent- wife supported the impugned order and prayed for dismissal of the petition with heavy costs. Consideration : Consideration : Consideration : ------------- ------------- ------------- 9. Having heard the petitioner and the respondent, I must place it on record that the petition as filed does not disclose any material in support of the submissions made. It is a sketchy petition without disclosing material facts and particulars in support of the contentions raised by the petitioner. 10. I was taken through the pleadings; various affidavits and counter affidavits filed by the parties including the impugned order. During the course of hearing, petitioner filed one affidavit dated 2nd February, 2009; wherein he has brought on record that he has acquired residential premises in the year 2004 for a total consideration of Rs.20 lakh jointly with - 5 - one Mrs.Pramila J. Sharma. During the course of hearing, it has transpired that he is staying with one Mrs.Pramila Sharma. He has also made a statement on oath that consideration of Rs.20 lakh, except Rs.1 lakh paid by Mrs.Pramila Sharma. Rest of the amount was financed by the City Bank. He further made a statement on oath that he is in debt trap and surviving on loans from the banks, friends and relatives since suffered court decree to the tune of Rs.2 crore. No details thereof are available on record. No material evidence in support of this assertion is to be found on record except a bald statement. A very guarded statement is made in the affidavit that the petitioner being a practising chartered accountant will have no option but to sit without income as and when he is declared insolvent, since an insolvent cannot be a member of the Institute of Chartered Accountants of India. He further submits that though he is a member of the reputed professional institute, in view of absence of proper infrastructure like office, car, residence, regular flow of clients, he is finding it extremely difficult to maintain himself, as such he is not in a position to meet the obligations flowing from the impugned order. - 6 - 11. On the above backdrop, one has to take judicial note of the fact that the petitioner is a Chartered Accountant, a highly qualified person with sufficient experience including business experience, continuing to be a member of the Chartered Accountants’ Institute, an able bodied person, can easily earn in more than five figures in the present economic scenario, when the demand of chartered accountants in the economic market is very high. Secondly, he is a person, who has acquired a property not only in his own name but in the joint name of his companion Mrs.Pramila Sharma paying 50% E.M.I of Rs.25,000/- per month falling to his share (as per his version) and that 50% E.M.I. is being paid by Mrs.Sharma, though no material is placed on record to show that Mrs.Pramila Sharma has substantial income to make balance payment of E.M.I. in the sum of Rs.25,000/- per month. 12. The title deeds produced on record leading to purchase of property from M/s.Videocon Properties Limited carries payment receipt of Rs.1 lakh paid by the petitioner himself, whereas, the balance Rs.19 - 7 - lakh were paid by the City Bank. The statement made by the petitioner that Rs.1 lakh was paid by Mrs.Sharma does not appear to be a correct statement. Apart from this, it is difficult to imagine that the Bank would make finance to the tune of Rs.19 lakh when the value of the property was Rs.20 lakh. Normally, bank does not pay more than 80% of the value of the property. Apart from this, if the petitioner is paying Rs.25,000/- towards E.M.I., then over an above that he must be paying maintenance charges to the Society, taxes to the Corporation, charges for electricity and water consumption for which no account is tendered. How much household expenses are shared by Mrs.Sharma is also not on record. The details of the borrowings made by the petitioner said to be from his relatives, friends are not substantiated on the basis of any documentary evidence. As stated, no material is to be found on record in this behalf. 13. The petitioner being an expert in accountancy, the legitimate adverse inference can conveniently be drawn that had all these facts been disclosed, they would not have supported the case of the petitioner, especially, in the background sketched hereinabove. Looking to the affluent lifestyle of the petitioner, - 8 - it is not possible to conclude that the maintenance granted to each of the daughters at the rate of Rs.20,000/- per month is excessive or arbitrary or perverse. This is so far as the quantum is concerned. 14. Having said so, it is also necessary to deal with the legal contention raised by the petitioner that one of the daughters being major, she is not entitled to claim maintenance. In support of this submission, learned counsel for the petitioner placed reliance on the Division Bench judgment of this Court in the case of B. (Husband) v. A. (Wife) B. (Husband) v. A. (Wife) B. (Husband) v. A. (Wife), 1992 Mh.L.J.748; wherein a view is taken that section 26 of the Hindu Marriage Act, 1955 and section 3(b) of the Hindu Adoptions and Maintenance Act, 1956 cannot be extended to cover children who have attained majority. In my view, this judgment cannot be said to be a good law in view of subsequent judgment of the Apex Court referred to hereinafter. 15. As against above, learned counsel appearing for the respondent has placed reliance on the judgment of the Apex Court in the case of Smt.Jasbir Kaur Smt.Jasbir Kaur Smt.Jasbir Kaur Sehgal v. District Judge, Dehradun, Sehgal v. District Judge, Dehradun, Sehgal v. District Judge, Dehradun, AIR 1997 SC 3397; - 9 - wherein the Apex Court observed as under: "Under the Hindu Adoptions and Maintenance Act, 1956 it is the obligation of a person to maintain his unmarried daughter if she is unable to maintain herself. In this case since the wife has no income of her own, it is the obligation of the husband to maintain her and her two unmarried daughters one of whom is living with wife and one with him. Section 24 of the Act no doubt talks of maintenance of wife during the pendency of the proceedings but this section, cannot be read in isolation and cannot be given restricted meaning to hold that it is the maintenance of the wife alone and no one else. Since wife is maintaining the eldest unmarried daughter, her right to claim maintenance would include her own maintenance and that of her daughter." (Emphasis supplied) In addition to the above, one more judgment of the Apex Court in the case of Jagdish Jugtawat v. Manju Jagdish Jugtawat v. Manju Jagdish Jugtawat v. Manju Lata Lata Lata, (2002) 5 SCC 422 was pressed into service; wherein the Apex Court had incidentally referred to this aspect in para-4 of the said judgment and observed as under: "4......, it is manifest that the right of a minor girl for maintenance from parents after attaining majority till her marriage is recognized in Section 20(3) of the Hindu Adoptions and Maintenance Act." (Emphasis supplied) - 10 - The above judgment has been followed by the Kerala High Court in the case of Viswambharan v. Dhanya Viswambharan v. Dhanya Viswambharan v. Dhanya, AIR 2005 Kerala 91; wherein the Court observed as under: "What S.20 of the Act stipulates is that a Hindu parent is liable to maintain his legitimate or illegitimate male or female children. Normally such liability to maintain would continue until the child attains the age of majority. Such liability to maintain the child, whatever be the sex, would continue until the child attains majority whether the child is or is not able to maintain itself out of its earnings or other property. So far as the male child is concerned, his right to claim maintenance would cease when he attains the age of majority. But so far as the female child is concerned, such right will continue even after she attains majority until she gets married, provided she is unable to maintain herself out of her own earning or other property." 16. In rejoinder, learned counsel appearing for the petitioner sought to place reliance on the judgment of the Punjab and Haryana High Court in the case of Lt.Col.Ravee Saharawat v. Smt.Ujjwal Lt.Col.Ravee Saharawat v. Smt.Ujjwal Lt.Col.Ravee Saharawat v. Smt.Ujjwal Saharawat Saharawat Saharawat, I (2002) DMC 616 which, in my opinion, is misplaced. 17. In view of the judgment of the Apex Court in the case of Smt.Jasbir Kaur Sehgal Smt.Jasbir Kaur Sehgal Smt.Jasbir Kaur Sehgal (supra), no fault can be found with the view taken by the Family Court. - 11 - Needless to mention that if two views are possible and one view is taken into account, then in that event the Writ Court in exercise of powers under Article 227 of the Constitution of India is not expected to interfere with the impugned order. No perversity or arbitrariness in the impugned order is demonstrated by the petitioner. Taking over all view of the matter, education; financial status and lifestyle of the petitioner, who is staying with his companion, having purchased property jointly in her name, can hardly be said to be a person not able to meet his obligations towards his children. 18. This Court not being a court of appeal is not expected to reappreciate the evidence once again and substitute the findings by its own findings. The petition is devoid of substance. The view taken in the impugned order is a reasonable and possible view. 19. In Bathutmal Raichand Oswal v. Laxmibai R. Bathutmal Raichand Oswal v. Laxmibai R. Bathutmal Raichand Oswal v. Laxmibai R. Tarte Tarte Tarte, (1975) 1 SCC 858 the Apex Court has held that the power of superintendence of the High Court under Article 227 being extraordinary is to be exercised most sparingly and only in appropriate cases. The Supreme Court has also said that the High Court could - 12 - not while exercising jurisdiction under Article 227, interfere with the findings of fact recorded by the subordinate Court or Tribunal as its function is limited to seeing that the subordinate court or tribunal functioned within the limits of its authority That it could not correct mere errors of fact by examining the evidence or reappreciating it. The Court further said that the jurisdiction under Article 227 could not be exercised, "as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for rehearing of the issues raised in the proceeding." 20. In Nagendra Nath Bora v. Commr. of Hills Nagendra Nath Bora v. Commr. of Hills Nagendra Nath Bora v. Commr. of Hills Division and Appeals Division and Appeals Division and Appeals, A.I.R. 1958 SC 398 the Supreme Court observed as under: "It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi judicial nature, are not greater than the powers under Article 226 of the Constitution. Under Article 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority." (Emphasis supplied) - 13 - 21. In the above view of the matter, no case is made out either on facts or law by the petitioner to interfere with the impugned order. In the result, petition is dismissed in limine with no order as to costs. (V.C.DAGA, J.) (V.C.DAGA, J.) (V.C.DAGA, J.)