-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 79 OF 2009 with CIVIL APPLICATION NO. 125 OF 2009 Pradip Madhubhai Mehta, age 43 years, ) temporarily residing at 303, Shilpa Apartment, ) Jadusha Nagar, Ghatkopar (West), Mumbai-400 086 ) through his Constituted Attorney Mr. Nilesh Himmatlal ) Kamdar, age 40 years, Occ. Business, residing at ) 2/A-104, Unity Apartment, Damodar Park, ) Ghatkopar (West), Mumbai-400 086 )..Appellant versus Mrs. Alpa Pradip Mehta, ) Age 38 years, Occ. Housewife, ) C/o. Suresh D. Sanghani, A-403, Supriya Sector -5 ) Charkop, Kandivali, Mumbai-400 084 )..Respondent Mr. Uday P.Warunjikar for the appellant. Ms. Kalpana Kanhere, instructed by M/s. Juris Matrix, for the respondent. CORAM: P.B. MAJMUDAR & R.V. MORE, JJ. DATE: OCTOBER 08, 2009. ORAL JUDGMENT: (Per P.B. Majmudar, J.) This appeal is directed against the judgment and order dated 23rd December, 2008, passed by the learned Principal Judge, Family Court, Mumbai, in Civil Miscellaneous Application No. 187 of 2007. By the impugned order, the -2- learned Judge, while entertaining the application preferred by the wife under Section 25 (2) of the Hindu Marriage Act, 1955, modified the earlier order dated 31st January, 2007 by directing the appellant-husband to pay maintenance at the rate of Rs. 10,000/- per month with effect from December,2008 onwards. 2. The respondent-wife instituted the petition being Petition No. A-701 of 2008 against the appellant for obtaining divorce on various grounds. The said petition was disposed of by the Family Court by passing a decree of divorce. At the time of disposing of that petition, the learned Judge of the Family Court by his order dated 31st January, 2007 passed an order directing the appellant to pay maintenance at the rate of Rs. 5,000/- to the respondent as well as at the rate of Rs. 5,000/- to the minor son Meet in all Rs. 10,000/-. Subsequently, Civil Misc. Application No. 187 of 2007 was filed with a prayer that in view of change in circumstances, the said amount may be enhanced to Rs. 25,000/- for herself and Rs. 15,000/- for her son, in all Rs. 40,000/-. The said application was preferred on 3rd December, 2007. The learned Judge of the Family Court, after hearing both the sides and after considering the evidence on record passed an order below Exh. 1 dated 23rd December, 2008, partly allowing the application and modified the earlier order dated 31st January, 2007 to the extent that the appellant was directed to pay maintenance at the rate of Rs. 15,000/- in all per month with effect from December, 2008 onwards. It is the aforesaid order which is under challenge at the instance of the appellant- -3- husband in this appeal. 3. Mr. Warunjikar, learned counsel appearing for the appellant, submitted that within a short span of 11 months, the wife preferred an application under Section 25 (2) of the Act even though there are hardly any change in circumstances. Mr. Warunjikar submitted that unless satisfactory evidence is there on record, the learned trial Judge should not have enhanced the maintenance by passing the impugned order. It is submitted that the amount is increased to a considerable extent i.e. from Rs. 10,000/- to Rs. 15,000/-. It is further submitted by Mr. Warunjikar that the appellant is not having any employment in U.K. and he has also remarried on 19th July, 2007 to another lady and the said lady was a divorcee having two children. The appellant has, therefore, has undertaken additional liability to maintain the wife and two children and is unable to meet with the additional liability for paying Rs. 15,000/- per month to the respondent wife. It is submitted by Mr. Warunjikar that considering the evidence on record as well as considering the averments in the application, it cannot be said that the circumstances have been changed within a short span so as to entitle the wife to get increased maintenance from Rs. 10,000/- to Rs. 15,000/- per month. Mr.Warunjikar has submitted that the apprehension on the part of the appellant is that the respondent may again prefer application within short time for further enhancement and that will be an endless process which the husband will have -4- to face. Mr. Warunjikar further submitted that he has received instructions from the appellant that the appellant is without any job at present in U.IK. and he is not having any income worth the name there. Mr. Warunjikar submitted that alternatively the enhanced amount of maintenance may be reduced suitably as considerable rise in maintenance has been given by the learned trial Judge by increasing the maintenance from Rs. 10,000/- to Rs. 15,000/-. 4. The learned counsel for the respondent, on the other hand, supported the order passed by the learned trial Judge and submitted that from the evidence on record even though the respondent has prayed for maintenance at the rate of Rs. 40.000/-, the learned trial Judge has granted only Rs. 15,000/- per month. 5. We have heard the learned counsel for the parties at great length and have also gone through the record and proceedings which is called for. 6. The principal question which requires consideration is as to whether the impugned order of the learned trial Judge is required to be interfered by us in this appeal by which the learned trial Judge has granted maintenance to the wife and the child at the rate of Rs. 15,000/- per month. -5- 7. In this appeal it is required to be noted that in her application, the respondent wife has stated that her minor son Meet is studying in Standard IX and she is required to bear expenses for his school fees and other miscellaneous expenses. In paragraphs 4 and 5 of the application, it is averred as under: “4. Petitioner states that she has one son, viz. Meet – aged about 14 years, studying in IX Standard and she has to maintain him and bear all the expenses such as his school fees, tuition fees, books, stationery, medical and other miscellaneous expenses. Apart from this, the petitioner is required to bear additional expenses such as school picnics, sports, conveyance, birthday feast, term fees, extracurricular activities, entertainment, etc . The petitioner is required to maintain herself and bear all the expenses for herself such as food, medicine, house rent, electricity charges, phone charges, mediclaim, conveyance, fitness, etc. As such it becomes virtually impossible for the petitioner to make both the ends meet within the amount of Rs. 5,000/- p.m. granted to each of them. 5. Petitioner states and submits that the aforesaid maintenance of Rs. 5,000/- per month granted by this Hon’ble Court for each of them is very meager and insufficient under the circumstances and prevailing market prices vis-a-vis the ever-rising prices of commodities, articles and other basic needs which increases from time to time and therefore as compared to the higher standard of living of the respondent, the amount of permanent maintenance of Rs. 5,000/- per month to each of the petitioner and son Meet is too short to maintain herself and son Meet.” 8. In paragraph 7 of the application, it is averred that the appellant is settled in London, U. K. and is gainfully working and earning handsome salary in pounds and is doing the business of trading electronic items such as computers, cellular phones, electronic cameras, etc. The learned trial Judge, -6- after considering the evidence, has come to the conclusion that the wife is entitled to get additional amount of Rs. 5,000/- per month for which cogent reasons have been given in the judgment. It is required to be noted that the respondent-wife is required to spend for her son’s school fees, tuition fees, etc. It has been pointed out that she is required to spend a considerable amount of Rs. 60,000/- per year towards lease rent. The break-up of the expenses in this behalf has been given in her evidence tendered before the Family Court in the form of an affidavit. The break up of the expenditure of the wife and her son is given in paragraphs 3 and 4 of the said affidavit. Nothing substantial has been brought out in her cross-examination. 9. The appellant-husband has also tendered his affidavit in lieu of chief-examination at Exh. 33. In para 4 of his affidavit, he has stated that he is married to one U.K. Citizen women and thereafter he pursued to get permanent visa of U.K. but he has not received the said visa till date. He has further stated that he is not having any source of income. He has further stated that the respondent is working and earning Rs. 10,000/- per month. She is residing with her father. In para 15 he has stated that he is dependent on his friends and relatives. In his cross-examination he has admitted that before going to U. K. he was operating his own business in the name and style of “International Tours and Trekkers” and he had also a business of supplying scientific instrument in the name of “Labco”. Though he volunteered to state that the said -7- business was only for one month, however, he admitted that there is no documentary evidence to show that the said business was carried on only for one month. The witness has stated that on the next date he would be able to produce his passport in the Court but it seems that he has not produced the same before the Court. In para 20 of his cross-examination he has admitted that after returning to India in the month of March-April, 2007, he deposited an amount of Rs. 1,20,000/- towards the arrears of maintenance. He has admitted that he is not having any relatives in U.K. 10. We have gone through the evidence on record and we are of the opinion that here is a case where the appellant husband who is settled in U.K. Has failed to produce any evidence on record showing his correct income. The appellant has failed even to point out anything to show that the respondent wife was in employment or she was getting any salary. The learned trial Judge rightly assessed the evidence on record and reached the conclusion that the appellant who has married to a lady with two children and is staying with them in U.K. and that he has married with a view to get citizenship of U.K. The learned Judge has found that the respondent-wife is required to pay Rs. 5,000/- per month to the licensor and remaining amount is paid by her father. The learned Judge has considered the evidence of the appellant and has observed in paras 26 and 27 as under: -8- “26. As can be seen further from the evidence of the respondent, he has stated that before going to U.K. He was doing his business in the name and style as “International Tour and Trekkers”. He was also supplying scientific instrument and also supplying oxygen cylinders to Mansarovar via. Nepal. The respondent has also admitted to the facts that he used to travel to Bhutan, Nepal and Tibet and he had visited U.K. On number of occasions. In this respect, it is required to be considered as to why a person would go abroad on tourist visas 10 to 15 times especially when he was not getting employment abroad or was it for fun. Further assuming that the respondent had no job abroad what was the necessity for him to go abroad 10 to 15 times and spend his money especially when he was living on the income of others and who gave him the money to go abroad not once but 10 to 15 times is not stated. The expenses regarding these trips i.e. Flight conveyance and boarding and lodging etc. how it effected if the respondent had no income. He has further denied that he was working in a hotel or had any job. However, the fact remains that as admitted by him 10 to 15 times he has gone to U. K. on tourist visas. Further as far as the respondent is concerned, he has stated that he returned to India and was in Mumbai. Presently, he is unemployed and has no source of income. In his cross-examination he has stated that he has not registered his name with the employment exchange or he was not drawing/getting any employment allowance from the Government. 27. Further the respondent was unable to look after the petitioner and their child. He was unable to pay maintenance for both at Rs. 7500/- per month. Though he was unable to maintain his first wife and child he goes ahead again and remarries second time with a woman having two children. Though he may have married to obtain U.K. Citizenship through her, the fact remains that still he cannot shirk his responsibility towards his first wife and child.” -9- 11. It is required to be noted that as per the say of the appellant he is unemployed and he has no income. In that view of the matter, it is difficult to understand as to how he has managed to pay maintenance arrears of Rs. 1,20,000/- . The appellant has not led any evidence as to from which source such amount was obtained. It is not possible for us to believe that a person who is having no income in U.K. will maintain his wife, who is a divorcee having two children. The respondent-wife is also entitled to live with reasonable comforts and it cannot be said that there is no evidence about the change of circumstances as her son is studying in Standard IX and additional expense is required to be met with by the wife for the education and other expenses of the son. It is not possible for us to believe that the respondent who was having a travelling business in India is not having any income now to maintain his wife and son. This is not a case in which this Court is required to interfere with the well reasoned order of the trial Court by which the learned Judge has given additional amount at the rate of Rs. 5,000/- by increasing the maintenance from Rs. 10,000/- to Rs. 15,000/-. At this stage, this Court cannot anticipate that the respondent wife will continue to make such applications for enhanced compensation from time to time. If there are further change of circumstances, naturally, either side can apply for enhancement or for reduction of the amount granted by the Court. In our view, this is not a case in which this Court would not like to interfere with the well reasoned order of the Family Court and in our view, from the evidence the view taken by the trial Judge is just and proper. -10- We, therefore, do not find any substance in this appeal. Appeal is accordingly dismissed in limine. Record and proceedings be sent to the trial Court forthwith. 24. In view of the above, no orders are required to be passed in Civil Application No. 125 of 2009. The same is accordingly disposed of. P. B. MAJMUDAR, J. R.V. MORE, J.