bsb 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 WRIT WRIT PETITION NO. 1086 OF 2008 PETITION NO. 1086 OF 2008 PETITION NO. 1086 OF 2008 Raju Premji Shah ... Petitioner v/s Mrs.Bansuri Raju Shah ... Respondent Mr.Rajshekhar V. Govilkar for the petitioner. Mr.P.M.Shah for the respondent. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 8TH MAY, 2009 8TH MAY, 2009 8TH MAY, 2009 P.C. P.C. P.C.: 1. Rule. Rule made returnable forthwith. 2. This petition has been filed by the husband against his wife being aggrieved by the order passed by the Family Court, Bandra, in Interim Application No.45 of 2007 in Petition No.A-255 of 2007. By this order of 13.12.2007, the Family Court has directed the petitioner to pay interim maintenance of Rs.10,000/- per month to the respondent and Rs.5,000/- to their son Jinish from the date of the application i.e. from 16.1.2007. The petitioner has also been directed to pay litigation costs of Rs.4,000/- to the respondent wife. 2 3. The petitioner and the respondent were married on 13.3.2001. They have a son Jinish who was born on 8.12.2002. The respondent wife complained of harassment and cruelty and lodged police complaints against the petitioner and the members of his family. She filed Petition No.255 of 2007 before the Family Court seeking a decree of divorce under Section 13(1)(i)(b) of the Hindu Marriage Act, 1955. She also applied for permanent custody of Jinish and maintenance at the rate of Rs.25,000/- per month by way of permanent alimony. The respondent preferred an interim maintenance application which has been granted as aforesaid. Being aggrieved by that order, the petitioner has filed the present petition. 4. The criticism of Mr.Govilkar, learned advocate appearing for the petitioner in respect of the impugned order is that, it does not take into consideration the fact that the petitioner is unable to pay the amount that has been granted as he is not earning more than Rs.3,500/- per month. The learned advocate has submitted that there was no material on record in support of the respondent’s contention that the petitioner was earning a handsome amount every month because his family was wealthy. It is submitted further 3 that the Family Court has not considered the material on record which would indicate that the monthly salary of the petitioner, who was employed with his father, was Rs.3500/-. The learned advocate has also submitted that the petitioner’s father’s assets cannot be considered for determining the amount which should be paid to the respondent and her son Jinish as interim maintenance. According to the learned advocate, the Family Court, has directed the payment of Rs.10,000/- as permanent alimony to the respondent on the basis that the petitioner was earning at least Rs.50,000/- per month. He then submits that the material on record does not warrant such a conclusion and, therefore, the order of the Family Court must be set aside. The learned advocate further submitted that, during the pendency of the present petition, the petitioner has met with a railway accident on 3.12.2008. He was hospitalized for more than a month and has incurred a physical disability. The petitioner has lost two digits of his right hand and half his right foot. An affidavit to that effect has been filed on 9.2.2009. According to the petitioner, he is now unable to move around on his own. The petitioner has stated in the affidavit that he is now physically unable to do any work, besides the fact that he is under a mental trauma on account of the accident. The learned advocate submits that, in such circumstances, the petitioner 4 would never be able to comply with the impugned order. 5. Mr.Shah, learned advocate appearing for the respondent wife, on the other hand, submits that the Family Court has not committed any error of law apparent on the face of the record requiring interference from this Court. According to him, the order is neither perverse nor illegal and, therefore, this Court should not interfere with the same in its writ jurisdiction. Further, it is submitted that the Family Court has rightly considered the fact that the material on record did not in any manner support the case of the petitioner that he was drawing a monthly salary of Rs.3500/- from his father. He further contends that the petitioner’s family is well placed and the respondent, while living with the petitioner, was used to a certain life style on account of the family wealth. However, now, after filing the proceedings for divorce, it has become difficult for the respondent to maintain herself and her son. The learned advocate has relied on various documents which have been produced before the Family Court to indicate the life style being led by the family of the petitioner. 6. The impugned order has been passed by the Family Court on the basis that the wife is entitled to the 5 amount as awarded since the husband was working. The Family Court has not accepted the contention of the petitioner herein. It has found that the petitioner had not produced any material on record to establish that the respondent herein had an independent source of income. The Family Court has considered the fact that the petitioner herein is an Income Tax assessee. It has further not accepted the salary certificate issued to the petitioner by his father. The Family Court has instead presumed that the petitioner’s income per month is at least Rs.50,000/-. 7. After going through the impugned judgment, I find that the Family Court has arrived at the aforesaid conclusion without any material on record. The Family Court has considered the fact that the petitioner’s father is in the business of plastics and therefore it could be presumed that the petitioner was earning Rs.50,000/ per month. Out of this amount it was directed that Rs.10,000/- should be paid to the wife and Rs.5,000/- to the child. The Family Court has not considered the fact that the respondent had not established that the petitioner had an independent source of income besides Rs.3500/- that he was drawing as a monthly salary from his father. The order does not disclose as to how the Family Court has arrived at the 6 conclusion that the petitioner could earn Rs.50,000/- per month from the plastic business which was being run by his father. The order is based on conjectures and surmises. In my view, therefore, it would be necessary to remand the matter to the Family Court to decide it afresh. 8. In these circumstances, the impugned order is set aside and the matter is remanded to the Family Court. However, the litigation expenses which are payable to the petitioner are maintained. 9. During the period when the Family Court is deciding the matter on remand, the petitioner shall pay the wife and the child Jinish Rs.5000/- per month as maintenance. 10. While considering the application for interim maintenance afresh, the Family Court will also take into consideration the physical disability suffered by the petitioner on account of an accident with which he met on 3.12.2008 and its effect, if any, on his earnings. 11. The interim maintenance application to be decided by the Family Court within a period of two months from today. 7 14. Writ petition allowed. Rule made absolute accordingly. The respondent has already withdrawn the amount of Rs.25,000/- which was deposited in this Court pursuant to the directions of this Court. That amount will be adjusted against the maintenance amount payable to the respondent and Jinish. The amount of Rs.663/- which is the interest accrued on the deposit shall be paid over by the Registry to the respondent and shall not be adjusted when the final order is passed on the application after the remand. .....