1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.550 OF 2008 Mrs.Veena Bhatt .. Petitioner Versus Dushyant H. Bhatt .. Respondent Mr.N.B.Shah with P.N.Shah for petitioner Mr.M.M.Vashi i/b. M.P.Vashi & Associates for respondent WITH WRIT PETITION NO.8255 OF 2007 Dushyant H. Bhatt .. Petitioner Versus Mrs.Veena Bhatt .. Respondent Mr.M.M.Vashi i/b. M.P.Vashi & Associates for petitioner Mr.N.B.Shah with P.N.Shah for respondent. CORAM : S.C.DHARMADHIKARI, J. DATE : 21st February 2008 P.C. . These two petitions challenge the order 2 dated 30th October 2007. Since the same order is impugned in both the petitions, they were heard together and are being disposed of by a common order. 2. Writ Petition No.8255 of 2007 is filed by the petitioner husband to challenge the order dated 30th October 2007 below Exh.47 whereby the learned Judge of the family court has partly allowed the application and directed the husband - original respondent to pay a sum of Rs.3 lakhs to the wife - original petitioner for her right knee surgery and post operational medication within fifteen days from the date of the said order. 3. Writ Petition No.550 of 2008 is by the wife and she prays that the said order be set aside partly and substituted with a direction to the husband to pay a sum of Rs.6 lakhs to her. 3 4. It would be convenient and appropriate to refer to the petitioner and respondent as husband and wife. 5. Husband had filed proceedings in Family Court being Petition No.A-514 of 2003 for restitution of conjugal rights but this petition was subsequently withdrawn. 6. Thereafter, the wife has filed M.J.Petition No.A-1694 of 2003 praying for dissolution of the marriage by a decree of divorce on the ground of cruelty by the husband. 7. It is undisputed before me that the said petition is pending. Pending petition, the wife made an application claiming Rs.4 lakhs for surgery of left knee. She claimed that the husband must pay this sum for the knee surgery. Upon an application in that behalf on 7th November 2005, the Family Court passed an order 4 to pay Rs.3 lakhs. Husband impugned that direction by filing Writ Petition No.2425 of 2005 and this Court disposed of this petition after recording the statement of the husband that he would hand over a cheque of Rs.3 lakhs. 8. Thus, the left knee surgery of the wife was undertaken and completed. It is worthwhile noting that both husband and wife are above 60 years of age but are locked in litigation before the matrimonial court. Considering her ailment the wife was forced to apply once again for medical expenses and on this occasion she prayed that Rs.6 lakhs be directed to be paid by husband as she is to be now operated on her right knee. The operation is of right knee replacement and would be undertaken by an expert in the field, who according to her, had earlier operated her on her left knee at Leelavati Hospital. The husband opposed this application inter alia on the ground that the same is not maintainable and even 5 otherwise, she would not require so much money for surgery. The husband showed his willingness to arrange for surgery at K.E.M. Hospital. The trial court heard this application and by the impugned order directed that husband should pay Rs.3 lakhs within 15 days from the date of the order. Considering the urgency and that the wife is awaiting surgery the matter was heard finally by consent of both sides. 9. The Contention of husband is that application under section 24 of the Hindu Marriage Act 1955 for the relief contemplated therein does not empower the Family Court to pass an order with regard to medical expenses. Mr.M.M.Vashi appearing for husband invited my attention to section 24 of the Hindu Marriage Act and contended that the maintenance contemplated therein together with expenses of proceedings is on the ground that the spouse has no independent income sufficient for her or his support. In the 6 submission of Mr.Vashi the provisions cannot be construed to mean grant of some amount for medical expenses. He submits that the word "Maintenance" has not been defined in the Hindu Marriage Act nor the word "support". In his submission, the word "maintenance" is defined in Hindu Adoption Act to mean that the same includes medical attendance and treatment. That concept cannot be borrowed and read into Hindu Marriage Act by virtue of section 4 of the Hindu Adoption and Maintenance Act, 1956 which gives an over-riding effect to the same. 10. Assuming without admitting that the application filed was maintainable, Mr.Vashi’s submission is that the impugned order suffers from total non application of mind and no reasons are assigned, much less cogent and satisfactory, to arrive at a conclusion that the husband must pay Rs.3 lakhs. In his submission merely because on the earlier occasion a sum of Rs.3 lakhs was 7 paid does not mean that any further sum should be paid. In his submission, there are no particulars referred to in the impugned order which would enable the family court to arrive at the figure of Rs.3 lakhs and the order is based on conjectures and surmises. That apart, the husband is ready and willing to arrange for the surgery at K.E.M. and wife should agree for the same as the entire expenses will be borne by the husband. 11. On the other hand, Mr.Shah appearing for wife supports the impugned order and contends that a certificate dated 4th August 2007 of the concerned Doctor with all estimates of surgical and medical expenses was indeed placed before the learned Judge. The learned Judge adverting to the same has passed the said order. However, complaint of Mr.Shah is that Rs.3 lakhs is a meagre and inadequate sum and the husband should be directed to bear entire expenses which, now on 8 account of increasing cost, has mounted to Rs.4 lakhs and above. In such circumstances, Rs.6 lakhs would be appropriate sum. 12. As far as the contentions of Mr.Vashi on maintainability of the application, are concerned, I find no substance in them. While it is true that section 24 of the Hindu Marriage Act deals with maintenance pendente lite and expenses of proceedings and the word "maintenance" appearing therein so also in section 25 and section 26 having not been defined in the Hindu Marriage Act does not mean that Section 24 cannot be construed to mean medical attendance and treatment is ruled out completely. Such direction can be issued by construing the word "Support" appearing therein, broadly. 13. In this behalf, reference can be made to section 24 which reads thus:- 9 "24. Maintenance pendente lite and expenses of proceedings:- Where in any proceedings under this Act it appears to the Court that either the wife or the husband as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceedings, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceedings, and monthly, during the proceedings, such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable". Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from 10 the date of service of notice on the wife or the husband, as the case may be." 14. Hindu Adoption and Maintenance Act is an Act which amends and codifies laws relating to maintenance amongst Hindus. Section 3(b) thereof reads thus:- "3(b) "Maintenance" includes - (i) In all cases, provision for food, clothing, residence, education and medical attendance and treatment; (ii) In the case of an unmarried daughter, also the reasonable expenses of an incident to her marriage; 15. A bare perusal of section 3(b) would make 11 it clear that the concept of maintenance under the Hindu Adoption and Maintenance Act 1956 is by no means exhaustive but inclusive. The maintenance is an inclusive definition therein and would include in all cases, provision of food, clothing, residence, education and medical attendance and treatment. In case of unmarried daughter reasonable expenses of and incidental to her marriage are to be provided. Insofar as section 24 is concerned, the words used are "has no independent income sufficient for her or his support". Somewhat identical contentions were canvassed before the Delhi High Court in the decision reported in A.I.R. 1989 Delhi 10 (Pradeep Kumar Kapoor Vs. Shailaja Kapoor), His lordship Mr.Justice Wadhava (as His Lordship then was) upon perusal of both section 24 and 3(b) of the Hindu Adoption and Maintenance Act held thus;- "9. Under section 24 of the Act, the 12 Court has to see if the applicant who may either be wife or husband has no independent income sufficient for her or his support and the necessary expenses of the proceeding, and then award expenses of the proceedings and such sum every month, having regard to the applicant’s own income and the income of the respondent, which may seem to the court to be reasonable. This section may be contrasted with section 25 of the Act which deals with permanent alimony and maintenance. Under section 25, the court may order the respondent to pay to the applicant for her or his maintenance and support, till her or his lifetime, either a lumpsum amount or such monthly or periodical sum, having regard to the respondent’s own income and other property, if any, and the income and other property of the applicant, the 13 conduct of the parties and other circumstances of the case, which the Court might deem just. It may be noticed that heading of Section 24 of the Act is "Maintenance pendente lite and expenses of proceedings". The section, however, does not use the word "maintenance", but, to me, it appears that the word "support" and "maintenance" are synonymous. "Support" means "to provide money for a person to live on", like "he supports a family" or "he supports his old mother". Maintenance is "an act of maintaining", i.e. to support with money. For example, "he is too poor to maintain his family". It may be useful at this stage to refer to the definition of "maintenance" as given in the Hindu Adoption and Maintenance Act 1956 (for short the Act of 1956). Under section 3 of that Act, "maintenance" includes - (i) 14 in all cases provision for food, clothing, residence, education and medical attendance and treatment; (ii) in the case of an unmarried daughter also the reasonable expenses of and incident to her marriage, I would, therefore, think that when we talk of maintenance and support, the definition of "maintenance" as given in the Act of 1956 should be adopted. Section 18 of the Act of 1956 also refers to the maintenance of wife and gives the circumstances under which a Hindu wife is entitled to live separately from her husband without forfeiting her claim to maintenance. The amount of maintenance to be fixed is provided in Section 23 of that Act, the relevant portion of which is as under:- "23.Amount of maintenance:- 15 (1) It shall be in the discretion of the court to determine whether any, and if so what, maintenance shall be awarded under the provisions of this Act and in doing so, the Court shall have due regard to the consideration set out in sub-section (2) or sub-sec.(3) as the case may be, so far as they are applicable. (2) In determining the amount of maintenance, if any, to be awarded to a wife, children or aged or infirm parents under this Act, regard shall be had to - (a) the position and status of the parties; (b) the reasonable wants of the claimant; 16 (c) if the claimant is living separately whether the claimant is justified in doing so; (d) the value of the claimant’s property and any income derived from such property, or from the claimant’s own earning or from any other source; (e) the number of persons entitled to maintenance under this Act." 16. His Lordship therefore concluded that the words "support and maintenance" are synonyms. The word "support" means to provide money for a person to live on and maintenance is an act of maintenance i.e. to support with money. Therefore, the conclusion of His Lordship is that 17 there is no conflict between these concepts as set out in the above enactments. 17. A reference was made by His Lordship to an earlier decision of Delhi High Court in the case reported in A.I.R. 1984 Delhi 320 (Dev Dutt Singh Vs. Smt..Rajul Gandhi) and held that the observations of Allahabad High Court reported in the case reported in A.I.R. 1979 Allahabad 29 (Preeti Archana Sharma Vs. Ravind Kumar Sharma), cannot with respect, be followed and applied. Maintenance depends upon a gathering together of all facts and the situation. The learned Judge in para 20 of the decision A.I.R. 1984 Delhi 320 (supra) held that section 24 used the word "support" and not standard or status. But that by itself does not mean that it is not of wide import. The support has to be according to the standard of the parties. Maintenance has to be fixed according to standing of parties, their wealth and the environment to which they in their 18 married state have been accustomed. 18. The issue as to whether medical expenses or reimbursement thereof can be said to be covered by the provisions in question, is concerned, that controversy directly fell for consideration of a Division Bench of Karnataka High Court and the High Court in the decision reported in A.I.R. 2003 Karnataka 183 (R.Suresh Vs. Smt.Chandra) held thus:- "9. The question is not as to whether the appellant husband can claim reimbursement of the medical expenses in respect of his wife which is only incidental, but the question is as to whether the wife can claim reimbursement of expenses incurred by her towards medical treatment from her husband." "10. Provisions of Section 24 of the 19 Hindu Marriage Act provides for support to be given by the earning spouse in favour of non-earning spouse during the pendency of proceedings before the Court. The question is as to whether medical expenses incurred by the claimant can form part of an application under section 24 of the Hindu Marriage Act. The word "support" has not been defined under the Hindu Marriage Act. We will have to only look at the definition as given in the dictionary or as understood in general parlance. However, we can draw inspiration from the word "maintenance" which has been defined under the provisions of the Hindu Adoptions and Maintenance Act." "11. Section 3(b)(i) of the Hindu Adoptions and Maintenance Act defines maintenance to be inclusive of provision 20 for food, clothing, residence, education and medical attendance and treatment. The definition here is also not an extensive definition, but inclusive one and nevertheless specifically mentions about medical attendance and treatment. The meaning attributed to the word "maintenance" and as defined under section 3(b)(i) can be taken to be the meaning even under the word "support" used under section 24 of the Hindu Marriage Act. We notice that the Delhi High Court has taken such a view in a case reported in A.I.R. 1989 Delhi 10 (Pradeep Kumar Kapoor Vs. Ms.Shailaja Kapoor). Justice D.P.Wadhwa of Delhi High Court has taken the view that the words "support" and "maintenance" are synonyms and the definition of "maintenance" as given under the Hindu Adoptions and Marriage Act equally 21 applies to the word "support" figuring in Section 24 of the Hindu Marriage Act. We are in respectful agreement with the view taken by the Hon’ble Justice D.P.Wadhwa of Delhi High Court and hold that an application of the present nature seeking for reimbursement of medical expenses incurred by a dependent spouse is definitely one which can be allowed in an application under section 24 of the Hindu Marriage Act." 19. After perusing these decisions together with the observations of His Lordship D.K.Jain as he then was in the case reported in A.I.R. 1994 Delhi 234 (para 11), I am of the view that they correctly lay down the principles that have to be applied while considering the application under section 24 of the Hindu Marriage Act, 1955 and more so, the relief in the subject petition. I respectfully concur with these decisions and the 22 observations therein. 20. For the reasons that are assigned in these Judgements, there is no merit in the submission of Mr.Vashi that medical expenses or reimbursement thereof cannot be claimed by a spouse in an application under section 24 of the Hindu Marriage Act. Resort thereto can be for support and if the Court is satisfied in the facts of each case, that the spouse can be directed to pay or reimburse the same accordingly. With regard to the quantum of reimbursement of the medical expenses or for directly bearing the same, no general rule can be laid down. Whe4ther, there should be a direction to pay or reimburse must also depend on the facts of each case. Similarly, the relief under section 24 is restricted to the husband or wife only. Thus, the application by the wife before the trial court was clearly maintainable. 23 21. Insofar as the quantum is concerned, the learned Judge has gone by the earlier order passed in the matter. The earlier order dated 7th November 2005 refers to the expenses as were approximately required to be spent for the artificial joint, Doctor’s fees etc. and Rs.3 lakhs were determined as the charges which the husband was directed to pay. At that time as well, the objection of the husband that the wife should not be undergoing the special treatment at Leelavati Hospital but he can arrange for the same at K.E.M. Hospital, Mumbai was considered and rejected. In the impugned order, the learned Judge has referred to the demand of the wife of Rs.6 lakhs. Therefore, for the reasons assigned in the earlier order, he accepted the request of wife but considering the pleas raised before him, maintained that Rs.3 lakhs are enough for the said surgery and that quantum should be paid by the respondent husband. 24 22. Mr.Shah would urge that the certificate which was issued and placed before the Court viz., that of Dr.Rajesh Maniyar dated 3rd August 2007 would disclose approximate expenses of Rs.4 lakhs. Considering that the certificate is of August 2007 and all expenses have increased thereafter, quantum should be increased to Rs.6 lakhs, is his submission. I am unable to accept the same either. The order refers to the earlier surgery and expenses therefor. Ultimately all expenses are nothing but estimates and the charges are not quantified precisely but an approximate sum is specified even in the Doctor’s certificate/letter. In such circumstances, I am of the view that the quantum of Rs.3 lakhs which has been arrived at by the family court is not liable to be interfered with in writ jurisdiction. Ultimately, this is not a court of further appeal. It is not permissible to re-appraise and re-appreciate the materials and arrive at a different conclusion merely because 25 another view of the matter is possible. The trial court having applied its mind and gone by the documents placed on record so also earlier order, has determined the sum of Rs.3 lakhs which to my mind, is reasonable. Considering that the husband is 67 years old, it would not be appropriate to direct him to pay further sums. 23. For the reasons assigned above the petitions are dismissed. However, there shall be no costs. 24. At this stage, Mr.Shah submits that the husband has not complied with the orders of family court and paid a sum of Rs.3 lakhs although directed to do so. The husband is present in court and after taking instructions from him, Mr.Vashi states that the husband would pay the same within four weeks from today. Considering that the amount is required for surgery of the knee of the wife so also her 26 advanced age, in my view, the order having been passed as early as in November 2007 two weeks time would be sufficient. In the light of the further request of the husband, the amount is allowed to be paid in instalments. Accordingly, the husband agrees and undertakes to pay Rs.1.5 lakhs to the wife within two weeks from today and the balance sum within two weeks thereafter. Needless to state that earlier payment with regard to the medical expenses so also this payment would be taken into account while determining the quantum of permanent alimony, if any, at the final stage. (S.C.Dharmadhikari, J)