Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 2347 of 2008 Mr. Cyrus Alexander Koshy ...Petitioner V/s. Mrs. Meher Jehanbux Minbattiwalla ...Respondents Mr.Johnson John, Advocate for the Petitioner Mr.Mukul Taly iby S.Mona Medbhai and Co., Advocate for the Respondents CORAM CORAM CORAM : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. DATED DATED DATED : 15th April, 2008 : 15th April, 2008 : 15th April, 2008 P.C. . Heard Mr.John, the Learned Counsel for the Petitioner husband and Mr.Mukul Taly for the Respondent. 2. This petition arises from the order dated 6-2-2008 passed by the Learned Judge of the Family Court at Bandra thereby granting interim maintenance of Rs. 30,000/- per month to the wife and an amount of Rs.10,000/- by way of cost of litigation. 3. The Petitioner is the husband and the Respondent is his wife. They were married in Loss Vegas on 20-11-1999 while in private employment outside India. However, within less than one year they started staying separately and the Petitioner husband has filed Petition No. A-1962/2003 for divorce, on or around 11-12-2003 i.e. after 3 years of separation. On or about 2 28-11-2005 the Respondent wife submitted an application for interim maintenance and the same has been allowed by the following cryptic order. "Heard both sides. Wife is praying for interim alimony @ Rs. 30,000/- per month. The husband in reply admitted that he is working but did not disclose about his salary. The husband must prove his income but he suppressed it. Thereby, I have to accept the case of the wife that he is earning US 12,500/- dollars which is equivalent to Rs. 6 lakhs p.m. Hence the request of wife for interim alimony is reasonable. Hence, I direct that husband shall pay Rs. 30,000/- p.m. to wife as maintenance pendente-lite from the date of application. The Husband shall also pay cost of Rs. 10,000/- of the litigation." 4. Interim-relief application No. 347/2005 filed by the wife was opposed by the husband by filing a reply in which he has given the details of his monthly salary as well as the expenses. He admitted that his monthly salary was 5000/- Dhirans and in addition he was getting 1250/- Dhirans for HRA. He denied that he was drawing a monthly salary of 12500 U.S. $. He also pointed out that the applicant wife had passed her B.A. and was working as a Merchandiser. He also stated that prior to 3 her marriage she was earning about Rs. 15,000/- per month with a reputed U.S. company known as Boom Club. She was in the habit of travelling overseas in vacations. In short the husband contended that the wife was employed and she was a professional by her own qualifications and experience and thus had sufficient income to live on her own. 5. The impugned order is contrary to the record. The Learned Judge of the Family Court was not right in his observations that the husband had not disclosed his salary and that he has suppressed the same. At the sametime to hold that the husband was earning 12500 U.S. $ per month was only on the basis of the statement made by the wife which was denied in his reply by the husband. Hence, for even prima-facie purposes it was not permissible for the Family Court to believe that the husband was earning Rs. 6,00,000/- per month. 6. In any case it appears from the respective pleadings that the marriage between the parties has reached an irretrievable stage and, therefore, the pending divorce petition requires to be decided expeditiously including the issue of the amount of final alimony. By the impugned order the husband is required to pay Rs. 30,000/- per month from December 2005 onwards and that amount itself would be in excess of 4 Rs.8,00,000/- as of now. There is no justification in directing him to deposit the said amount. 7. The Family Court was required to consider the income of both the spouses as well as the net income of the husband while fixing the amount of maintenance pending trial. The impugned order certainly lacks reasons and proceeds on the grounds which are contrary to the record and hence the same order is unsustainable. 8. With these obtaining circumstances the petition is disposed off by the following directions:- (a) The impugned order is hereby quashed and set aside and interim application No. 347/2005 filed by the respondent wife is restored to the file of the Family Court in Petition No. A-1962/2003. The said application shall be heard and decided alongwith the main petition so as to fix the final amount of alimony if any or any other considerations. (b) The Petitioner-husband shall deposit an amount of Rs.4,00,000/- with the Family Court and the same shall be subject to the final order to be passed in the divorce petition filed by the husband. 5 (c) The divorce petition as well as the application for alimony shall be heard and decided as expeditiously as possible and in any case before 31-8-2008 as per law. (d) The amount of Rs.4,00,000/- to be deposited with the Family Court within a period of four weeks from today. [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.]