:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7825 OF 2007 Mohan Kumar Rayana ..Petitioner Vs. Komal Mohan Rayana ..Respondent Mr. J.P. Cama, Senior Advocate with Mr. Karl Tamboly i/by M/s. D.H. Law Associates for petitioner. Mr. M.P. Vashi i/by M.P. Vashi and Associates for respondent. CORAM: CORAM: CORAM: B.H. MARLAPALLE,J. B.H. MARLAPALLE,J. B.H. MARLAPALLE,J. Reserved Reserved Reserved on : January 22, 2008. on : January 22, 2008. on : January 22, 2008. Pronounced Pronounced Pronounced on : on : on : January 28, 2008. January 28, 2008. January 28, 2008. P.C.: P.C.: P.C.: 1. Heard Mr. Cama the learned Senior Counsel with Mr. Tamboly i/by M/s. D.H. Law Associates for petitioner and Mr. M.P. Vashi for the respondent. 2. Rule. Respondent waives service. 3. By consent of the parties, Rule is taken up for final hearing forthwith. :2: 4. This petition filed under Article 227 of the Constitution impugns the order dated 29/8/2007 passed by the learned Judge of the Family Court at Mumbai thereby allowing the application for maintenance pendente lite filed under Section 24 of the Hindu Marriage Act, 1955 (the Act for short) in Petition No.A-274 of 2006 which has been filed by the husband for a decree of divorce under Section 13(1)(ia) of the Act. 5. The parties were married at Hyderabad according to the Hindu Rites on 11/8/2000 and they had their matrimonial home at Mumbai. They begot a daughter by name Anisha on 2/3/2002. Sometimes in July 2004 the respondent-wife left the matrimonial home. On or about 7/2/2006, the husband has filed a divorce petition and the same is pending before the Family Court. The wife has filed her Written Statement on 17/10/2006 and opposed the petition. She has also filed an application under Sections 25 and 27 of the Act read with Section 7(1)(c)(d) of the Family Courts Act, 1984 in the said proceedings along with the Written Statement and has prayed for a permanent :3: monthly maintenance of Rs.3,00,000/-, 3 BHK flat equipped with all amenities as are available in the matrimonial house and in the alternate the husband to pay a sum of Rs.80,00,000/- to the wife to enable her to arrange for a suitable accommodation for herself and an amount of Rs.50,000/- by way of costs. The wife presented a separate application under Section 24 of the Act in the divorce proceedings on or about 27/7/2006 and the same application came to be marked as Exhibit-9 which has been partly allowed by the impugned order by directing petitioner-husband to pay an amount of Rs.1,00,000/- per month to the respondent-wife for herself and the minor daughter Anisha from the date of the application i.e. 27/7/2006 till the final hearing and disposal of the main petition. The other prayers in the application at Exh.9 have been rejected. However, the husband has been directed to pay an amount of Rs.10,000/- as costs of the application for maintenance pendente lite. 6. The wife in her application at Exh.9 stated that she comes from a highly respectable family, her father, an Advocate by profession, has retired and her mother, who was a Nutritionist and associated with a :4: leading Diabetic Specialist Dr. Ajgaonkar, has also retired. She is a dancer and used to perform on stage and act in television serials/films before her marriage. She stated that prior to her marriage and even thereafter she had a comfortable and high standard of living and had brought up in the posh Malabar Hill area and provided with all possible comforts of life. After her marriage to the present petitioner, she continued to have the same luxurious lifestyle of living in a spacious, well furnished/ decorated house equipped with all amenities and luxuries, travelling in chauffeur driven air conditioned luxury cars, using branded clothes and accessories, having servants, extensively travelling abroad as well as in India, socializing etc. She further stated, as of now, she does not have sufficient income to maintain herself to the aforesaid standard of living or otherwise for a comfortable standard of living and is getting only a meagre income of around Rs.10,000/- per month which is hardly of any help to her. On the other hand, she stated that the petitoner-husband is an extremely wealthy industrialist/business man having several businesses, properties, investments and huge income. She claimed :5: that he is the Chairman-cum-Managing Director of a leading Pharmaceutical company, namely, Wanberry Ltd. which has an annual turnover of more than Rs.500 crores. She pointed out that he has some other business ventures and has majority share holding in some of these companies with huge office of about 14000 sq.ft. She further alleged that petitioner is living posh life and his servants are paid more than Rs.75,000/-. She further alleged that the husband’s driver is paid about Rs.10,000/- p.m. and he has a flit of cars, namely, Honda CRV, Santro, Toyota Jeep, Honda City and Sonata as well as Maruti Swift. He travels extensively abroad and all over India by Air and always stays in 7/5 star hotels. The wife further alleged that the husband spends about Rs.4,00,000/- to Rs.5,00,000/- per month on his household personal expenses and was earning more than Rs.15,00,000/- to Rs. 20,00,000/- per month. She, therefore, claimed that for her comfortable living she need at least Rs.3,00,000/- per month by way of maintenance for herself. 7. The petitioner-husband filed reply and opposed the application at Exh.9. He stated that the :6: respondent-wife is a well known dancer and a film star and she is living a comfortable life on her own income. He claimed that she is a famous star in the South Indian movies by referring to her interview published in one of the leading English Dailies. The husband also pointed out that she has a house of her own in Bandra and while asking for the custody of the minor daughter in Petition No.D-65 of 2005 she had stated that she has sufficient income to live a comfortable life and to look after the daughter. The husband denied to have a monthly income of Rs.15,00,000/- to Rs.20,00,000/- . He also denied to hold the post of Chairman-cum-Managing Director of the Pharmaceutical company and the amount of money that he would spend on his maintenance. The husband pointed out that his annual income was about Rs.24,00,000/- and from that he was required to pay income tax as well as spend money on his household and on the maintenance of the another who live separately. 8. While passing the impugned order, the Family Court declined to enter into recording a finding about true income of the petitioner-husband and the respondent-wife and as per the Family Court the same :7: could be looked into at the time of trial and fixing of permanent maintenance. The learned Judge took into account the disclosed income of the husband to be Rs.24,00,000/- per annum which comes to about Rs.2,00,000/- per month. The learned Judge further held that the husband would need about Rs.1,00,000/- for himself and balance of Rs.1,00,000/- ought to go towards the maintenance of the respondent-wife and the minor child. She referred to the decision of the Delhi High Court in the case of Bharat Hegde vs. Saroj Hegde [(2007) DMC 815] and stated that some guess work would not be ruled out while estimating the income of the husband. 9. Mr. Cama the learned Senior Counsel, at the first instance, referred to the judgment of the Delhi High Court in the case of Hegdes (Supra) and pointed out that in the said case despite the fact that the husband was holding assets worth about 30 crores, the order of the trial court granting interim maintenance under Section 24 of the Act at Rs.25,000/- per month was confirmed by the High Court and he submitted that in the instant case the Family Court abruptly proceeded to grant Rs.1,00,000/- per month to the :8: respondent-wife for the maintenance of herself and daughter. He also referred to the following statement made by the wife in her petition to seek the custody of the minor daughter:- "Under the circumstances aforesaid the petitioner submits that she is capable and well settled in life. She is capable of maintaining herself and the child very well and can better look after her child as far as food, education, health and culture of the child being the mother. The child can be given better love and affection by the petitioner as baby Anisha is more attached to the petitioner than the respondent....." 10. Mr. Cama also pointed out some other documents to show that the respondent-wife who is known by the scree name "Rupini" conducts a chat show and she has a steady income to live a comfortable life and the Family Court without considering these aspects straightway proceeded to allow the application. As per Mr.Cama the impugned order does not meet the requirements of the parameters set out in Section 24 :9: of the Act. 11. Mr. Vashi the learned counsel for the respondent-wife on the other hand submitted that the petition is required to be dismissed on the preliminary ground that the petitioner has no regards to the process of law in as much as he had not implemented the impugned order and, therefore, the wife has already taken out contempt proceedings against him. He further submitted that the impugned order does not call for any interference under Article 227 of the Constitution and the amount of maintenance fixed at Rs.1,00,000/- per month is reasonable looking at the financial standard of the husband as at present. As per Mr. Vashi the wife is entitled to have the same comforts as she had while in the matrimonial home and, therefore, viewed through that angle the amount of Rs.1,00,000/- is not reasonable by any standards. 12. While dealing with an application under Section 24 of the Act, the Supreme Court in the case of Smt. Jasbir Kaur Sehgal vs. District Judge, Dehradun and ors. [AIR 1997 SC 3397] [AIR 1997 SC 3397] [AIR 1997 SC 3397] stated as :10: under:- "....Court has to consider the status of the parties, their respective needs, capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and those he is obliged under the law and statutory but involuntary payments or deductions. Amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate...." 13. In the instant case, let us look at certain admitted facts which are as under:- (a) The respondent-wife has left the matrimonial home on her own and though there does not appear to be a case of domestic :11: violence, she calimed that the ground for leaving the matrimonial home was the husband’s habit to spend time with his friends, even in the night and thus neglecting her. (b) The wife has a flat admeasuring about 750 sq.ft. in Bandra area. (c) The wife claims to have a monthly income of Rs.10,000/- and undoubtedly the support of her parents. (d) She does not have a fixed and steady source of income in as much as she is not a salaried person, but at the same time is a well known star. (e) Daughter Anisha is more than five years old and is a school going child. (f) Though the wife has left the matrimonial home in July 2004, she did not claim any maintenance from the husband till she filed the application at Exh.9 in the divorce :12: petition filed by the husband which indicates that for more than two years she impliedly did not feel the necessity of financial support to be sought from her separated husband. 14. The Family Court has proceeded solely on the basis that the husband has an yearly income of Rs.24,00,000/-. Mr. Cama the learned Senior Counsel has submitted a copy of the last income tax return furnished by the husband (Assessment Year 2004-05) and the petitioner-husband’s annual income is shown at Rs.21,41,698/-. The return shows that total tax payable by the petitioner came to Rs.6,78,160/-. If the income is taken to be Rs.24,00,000/- per annum, the petitioner’s liability towards tax would be around Rs.8,00,000/- and he would be left with net income of Rs.16,00,000/-. The Family Court has accepted that the husband would need Rs.1,00,000/- per month for his maintenance and consequently he would left with about Rs.4,00,000/- to Rs.5,00,000/- to be given to the wife on monthly basis it will come to about Rs.35,000/- to Rs.40,000/-. At the same time, it is the husband’s responsibility that the minor daughter is provided :13: with all the comforts which she would get while in his company. In any case, the arrangements so made are only by way of an interim arrangement till the divorce petition is decided finally. It was submitted by Mr.Vashi that the said petition has been dismissed in default on or about 10/1/2008, whereas Mr.Cama pointed out that a restoration application has been filed and orders on the same are expected soon. 15. Be that as it may, taking into consideration the guide-lines set out by the Apex Court in the case of Smt. Jasbir Kaur Sehgal it would be appropriate that the wife is provided a maintenance at the rate of Rs.40,000/- per month and a provision of Rs.20,000/- per month is made for the daughter, thus making a total maintenance amount of Rs.60,000/- per month. 16. Hence, the petition succeeds partly. The impugned order is modified by fixing the maintenance amount at Rs.60,000/- per month for the respondent-wife and minor daughter Anisha and the said amount shall be payable with effect from the date the application is filed i.e. 27/7/2006. The amount of costs fixed by the Family Court at Rs.10,000/- is :14: hereby confirmed. The amount already paid/deposited shall be adjusted while calculating the arrears of maintenance amount. In case the divorce petition is restored by the Family Court, it is directed that on its restoration the same shall be heard and decided as per law and as expeditiously as possible and preferably by 31/7/2008. Both the parties shall extend their cooperation to the Family Court for disposal of the divorce petition, on its restoration, within the stipulated period. 17. Rule is made absolute in the above terms. (B.H. (B.H. (B.H. Marlapalle,J.) Marlapalle,J.) Marlapalle,J.)