1 dgm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO.1998 OF 2008 Mr.Vikas Ramkumar Agarwal Petitioner vs. Mrs.Priya Vikas Agarwal Respondent Mr.P.M.Pradhan i/b.Mr.S.S.Redekar and Mr.Devdutta Lad for the petitioner. Mr.Vineet B. Naik i/b.Mr.S.R.Kulkarni for the respondent. CORAM : R.V. MORE,J. DATED : 30th August, 2008 P.C. Heard the learned counsel for the respective parties. 2. Rule. Rule is made returnable forthwith. Heard finally by consent of the parties. 3. The petition takes exception to the order dated 20.02.2008 passed by the learned Judge, Family Court No.6, Bandra, Mumbai in Interim Application No.193/2007 in Petition No.C-113/2006 whereunder the petitioner was directed to pay to the respondent and the child an amount at the rate of Rs.35,000/- each per month towards interim maintenance from the date of the application. 4. Few facts giving rise to the present petition are as follows: 2 . The respondent-wife filed petition under section 18(2)(b) and 20(2) of the Hindu Adoption and Maintenance Act, 1956 before the Family Court at Bandra, Mumbai praying for maintenance for herself and for her son. The respondent contended that she got married with the petitioner initially on 6.1.1993 and a son by name "Siddhant" was born in the year 1995 out of this wedlock. The respondent, however, was not treated properly. It is the case of the respondent that due to the petitioner’s cruel and hostile behaviour she was constrained to file a petition in the year 1996 for a decree for judicial separation and for custody of the minor child "Siddhant" and for maintenance for herself as well as the minor son. In this proceeding, the petitioner appeared and agreed for divorce by mutual consent. Accordingly, they obtained a decree by mutual consent on 7.2.1997. After some days, due to love and affection towards the minor child "Siddhant", both the petitioner and the respondent started meeting each other. The petitioner persuaded the respondent for re-marriage. Initially the respondent was not ready and willing, but after persuasion by her mother upon petitioner’s offer, she gave a second thought and ultimately got re-married with the petitioner on 10..08.2000. However, after few months of the re-marriage, the petitioner repeated his past conduct and behaviour and the respondent had to undergo the same 3 ordeal. The respondent-wife therefore had to live separately from the petitioner-husband in a rented premises. 5. The respondent also contended that the petitioner is engaged in the business of engaging security guards and private investigation work. The respondent further contended that from all sources the income of the petitioner is more than Rs.4,00,000/- per month. She also stated that she is employed with private company and getting an amount of Rs.20,000/- per month towards salary. In the aforesaid circumstances, she has prayed for maintenance at the rate of Rs.50,000/- per month to herself and Rs.50,000/- per month to her minor son "Siddhant". The respondent also filed Interim Application No.193/2007 in the aforesaid petition for grant of interim alimony at the rate of Rs.50,000/- per month to herself and to her son, each. 6. The petitioner contested the respondent’s petition as well as application for grant of interim maintenance. It was contended that there was no second marriage between the petitioner and the respondent. He denied that his income is Rs.4,00,000/- per month. He submits that his income tax returns shows that his income is approximately Rs.2.50 lacs per year and as against this the respondent is earning an amount of Rs.20,000/- per month towards salary and, therefore, she is not entitled 4 for any maintenance. 7. The learned Judge of the Family Court after hearing the parties has come to prima facie conclusion that the petitioner remarried with the respondent. The learned Judge of the Family Court No.6, Bandra, Mumbai has also came to the conclusion that the respondent-wife and her son "Siddhant" are entitled to the interim maintenance at the rate of Rs.35,000/- per month each from the date of the application. Accordingly, he has passed an order to that effect, and in addition to interim maintenance the petitioner was also directed to pay the cost of Rs.10,000/- towards litigation charges. 8. Mr.Pradhan, the learned counsel for the petitioner, submitted that the amount of maintenance granted by the Family Court is exorbitant. He further submitted that income tax returns disclose that the petitioner’s income is at about Rs.2.50 lacs per annum. He specifically denied the allegation that the petitioner’s income is Rs.4 lacs per month. It was also submitted that the respondent-wife is earning Rs.20,000/- per month. The learned counsel lastly submitted that reasonable amount of maintenance could have been granted at the rate of Rs.10,000/- per month for minor son "Siddhant". 9, Mr.Naik, the learned counsel appearing for the respondent, per contra, supported the impugned order. 5 He submitted that the son "Siddhant" is taking education in Bombay Scottish School at Mahim in Standard VIII and looking to the standard of living and the expenses that is being incurred for the purposes of education of son "Siddhant", the Family Court rightly awarded an amount of Rs.35,000/- towards maintenance to minor son. He further submitted that the respondent is staying in the rented premises. Initially the rent was Rs.7,000/- per month. However, the same was increased to Rs.12,000/- per month. In addition to this, the respondent was required to deposit an amount of Rs.72,000/- with the landlord for securing the rented accommodation. Mr.Naik also submitted that the respondent is required to spend for electricity charges, telephone charges, expenses for food, conveyance, schooling expenses and miscellaneous and incidental expenses and, therefore, the amount of Rs.20,000/- which the respondent is getting by way of salary is insufficient to meet all the expenses. In these circumstances, he submitted that the amount of Rs.35,000/- per month fixed by the Family Court towards interim maintenance of respondent is reasonable one and the same should not be interfered with in the exercise of jurisdiction of this Court under Articles 226 and 227 of the Constitution of India. 10. Having heard the learned counsel for the respective parties and having gone through the impugned order along with the petition and annextures thereto, in my opinion, 6 the amount of interim maintenance to the respondent and to her son "Siddhant" is excessive and unreasonable for the reasons stated hereafter. 11. While awarding interim maintenance the Court has to take into consideration the status of the parties, their respective needs, capacity of the husband to pay the amount of maintenance. Now let us consider the financial capacity of the petitioner to pay the amount of maintenance to the respondent and her minor son "Siddhant". Though the petitioner denied the respondent’s contention that he is running the business in the name and style of "Safeguard Security Services" having its head office at Mumbai and its branches at Gujarat, Raipur and Delhi, he specifically admitted that he is Chief Executive Officer of this proprietary concern which belongs to his father. The petitioner in his reply further admitted that he is proprietor of M/s.Checkpoint Protection Services engaged in the business of running the security services. He also admitted that he is partner in M/s.Safeguard Security Services. The petitioner has not disputed that he is also paying an amount of Rs.50,000/- per annum towards premium of L.I.C. There is also no dispute that the petitioner he had given chauffeur driven car at the disposal of the respondent. The petitioner admitted the minor son Siddhant in a high standard school i.e. Bombay Scottish. Taking these facts into consideration, 7 in my opinion, the petitioner’s income is much more than what is stated in his reply to respondent’s application for interim alimony. I am also of the opinion that the income tax return relied upon by the petitioner, in view of above facts, cannot be said to be conclusive. 12. This takes me to consider the need of minor son "Siddhant". There is no dispute that the minor son "Siddhant" is taking education in VIIIth Standard in high class school namely, Bombay Scottish. The respondent is required to pay tuition fees which are very high. The respondent is also required to spend for school bus charges, school uniform and for books. It is of common knowledge that education in high standard school, in a city like Mumbai, now a days is very expensive. The minor son "Siddhant" is taking private tuition also. Looking to the competition which the child is required to face, requirement of private coaching cannot be said to be unreasonable. The minor child is entitled to maintain the same standard of living which was being maintained when the respondent and the child were residing with the petitioner. Admittedly the petitioner had given chauffeur driven car at the disposal of the respondent and her son "Siddhant". In this regard, it is worth to mention that Mr.Pradhan, the learned counsel for the petitioner, submitted that an amount of Rs.10,000/- per month towards interim maintenance to minor son "Siddhant" will 8 be reasonable. Taking into consideration the above circumstances, in my opinion, the amount of Rs.15,000/- per month towards interim maintenance for minor son "Siddhant" will be reasonable. 13. So far as the need of respondent is concerned, there is no dispute that the respondent is serving in a private company and thereby earning an amount of Rs.20,000/- per month by way of salary. The respondent is required to spend for electricity charges, telephone charges, expenses for food, conveyance and miscellaneous expenses. Admittedly, the respondent is staying along with her son in a rented premises. In order to secure this rented premises, she has given an amount of Rs.72,000/- to the landlord by way of deposit. Initially she was paying the rent at the rate of Rs.7,000/- per month and at present she is paying the amount of Rs.12,000/- per month. The respondent is entitled to maintain the same standard of living as that of the petitioner. When the respondent along with her minor son were living with the petitioner, they were enjoying all modern amenities in the house including chauffeur driven car at their disposal. The respondent was leading a very high standard of living and she was accustomed with the same. In my considered opinion, it is not possible for the respondent to meet all the expenses mentioned above in her income of Rs.20,000/- per month which she is getting by way of salary. Taking 9 overall circumstances into consideration and to maintain equal standard of living as that of the petitioner, in my opinion, the respondent needs approximately an amount of Rs.15,000/- per month in addition to the amount of Rs.20,000/- p.m. which she is getting by way of salary. 14. The learned Judge of the Family Court by the impugned order fixed the maintenance at the rate of Rs.35,000/- per month each to the respondent and her son "Siddhant". It is settled principle that the rate of maintenance is required to be fixed taking into consideration the status of the parties, their respective needs, capacity of the husband to pay the amount of maintenance and at the same time the amount fixed cannot be excessive and/or extortionate. The learned Judge of the Family Court while arriving at the figure of Rs.35,000/- towards maintenance to the respondent and her son each has not discussed about the actual need of financial assistance from the petitioner to the respondent and her son. I have already observed that the amount of Rs.15,000/- per month by way of interim maintenance to the son "Siddhant" will be reasonable. I have also observed that the respondent needs an amount of Rs.15,000/- per month over and above Rs.20,000/- which the respondent is earning by way of monthly salary in order to maintain same standard of living as that of the petitioner. 10 15. In that view of the matter, Rule is made absolute partly in the following terms: ORDER ORDER ORDER (1) The impugned order is modified as follows: (i) The petitioner is directed to pay to the respondent and her son "Siddhant" each an amount of Rs.15,000/- per month i.e. total amount of Rs.30,000/- per month from the date of the application i.e. 21.06.2007. (ii) The petitioner is directed to pay to the respondent the cost of Rs.10,000/- towards litigation charges. (iii) The petitioner is also directed to pay to the respondent the arrears of maintenance within a period of four weeks from today. [R.V. [R.V. [R.V. MORE,J.] MORE,J.] MORE,J.]