1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.88 OF 2006 WITH FAMILY COURT APPEAL NO.89 OF 2006 Mrs.Beena Rajan Desai @ ] Ms. Vidya Chavan (being the mother ] of minor son, Gaurav and daughter ] (Ridhika), Aged : 40 years, ] Appellant Occ.: Housewife, ] (ori.petitioner) R/o : 202, Gokuldham, A Wing, “ ” ] Phulpada Road, Virra (West), ] Dist. Thane. ] Vs. Mr. Rajan Desai ] Aged : 45 years, ] Occ. : Service, ] Respondent R/o : 2/B-13, New Indian Airlines ] (ori.respondent) Colony, Kalina-Kurla Road, ] Santacruz (East), Mumbai - 400 029 ] Ms. Vasanti Bangera, Advocate for appellant. Mr. A.A. Kumbhakoni, Senior counsel i/by Mr. Tejas D. Deshmukh, for respondent. Coram : A.P. DESHPANDE & SMT.R.P.SONDURBALDOTA, JJ. Judgment reserved on : 7th April 2010 Judgment pronounced on : 7th May 2010 Judgment (Per Smt.R.P. SondurBaldota, J.) : 1. This is a common order on the above two appeals between same parties preferred to challenge correctness and legality of 2 the common order dated 11th May 2006 passed by the Family Court, Mumbai disposing of two petitions filed by the appellant. Family Court Appeal No. 88 of 2006 arises out of Petition No.D-70 of 2003 and Family Court Appeal No.89 of 2006 arises out of Miscellaneous Petition No.42 of 2005. 2. The appellant and the respondent were married on 10th March 1988. There are two children born from the wedlock being Gaurav and Ridhika. Gaurav today is aged 21 years and Ridhika 17 years. By the judgment and decree dated 3rd November 2001, the marriage was dissolved by mutual consent under Section 13(B) of Hindu Marriage Act, 1955 in terms of the consent terms dated 8th October 2001. The consent terms provided that the custody of children, Gaurav then aged 12 years and Ridhika then aged 7 years, shall remain with the respondent- father and that the appellant-mother would have access to them as provided in the consent terms. The respondent agreed to pay a sum of Rs.1.00 lac to the appellant by way of permanent alimony and Rs.12,000/- towards maintenance for three months. He also agreed to hand over all the articles of the appellant to her and certificates of the investments made by him in her name. The appellant in turn 3 agreed to vacate the premises where she was then residing being the office quarters allotted by Indian Airlines to the respondent. Since the custody of children had remained with the respondent-father, the consent terms did not provide for their maintenance as the appellant did not comply with the consent terms, the respondent had to get the same enforced through court. The respondent got custody of Gaurav on 16th April, 2002 and of Ridhika on 10th June, 2002. However, thereafter, long acrimonious battle ensued between the parties over the custody, the details of which have become irrelevant today, considering the age of the children. The dispute now stands reduced to the claim of maintenance. 3. On 18th November, 2004 the appellant filed Petition No.D-70 of 2003 for direction to the respondent to hand over custody of Ridhika and for permission to retain custody of Gaurav who according to her had voluntarily come to her. In addition, she sought maintenance for the children and house accommodation for them. Then, on 12th April, 2005 she filed Misc.Application No. 42 of 2005 under Section 25(2) and 26 of the Hindu Marriage Act claiming Rs.10,000/- per month by way of permanent maintenance for herself and Rs.5,000/- for each child towards 4 it s maintenance and educational expenses. She also sought ’ direction to the respondent to make arrangements for marriage expenses for Ridhika. The respondent filed his written statements to oppose both the applications contending that the appellant was seeking custody of the children not out of love and affection for them, but, only for the purpose of using them to extract money from the respondent by way of maintenance. The Family Court by the impugned judgment and order allowed the appellant to retain custody of both the children and awarded maintenance of Rs.2,000/- per month for each child. It rejected the request for accommodation and refused maintenance to the appellant. 4. As already mentioned above, the question of custody of both the children is no more res-integra. Gaurav has already become major. He is 21 years old. As regards Ridhika, pursuant to the orders passed by this court on 18th October, 2008 and as per the preference made by Riddika her custody has been given to the respondent and she has since been residing with him. 5. In view of the above position as regards the age of Gaurav and custody of Ridhika, the question of payment of maintenance to both the children also becomes redundant. However, Ms. Bangera 5 the learned counsel for the appellant has strongly urged that in the last several years when both the children were residing with her, the appellant has spent substantial amount towards maintenance of the children which amount must be reimbursed to her. The argument created an impression that during all these years, the respondent has not cared for the children at all and not provided for them. The impression, however, gets completely wiped out in view of the various orders passed by this Court from time to time enhancing the maintenance awarded by the impugned order, issuing directions for paying Rs.1,500/- per month for each child towards license fees for accommodation and various payments towards educational expenses. The respondent has dutifully complied with each order by making almost all the payments by cheques. Mr. Kumbhakoni, the learned Senior Counsel for the respondent, has submitted detailed accounts of the payments made by the respondent since the year 2002. The accounts show that the amount paid towards maintenance of children till date is Rs. 3,49,250/-, towards educational expenses Rs.1,00,625/-, additional payment of Rs.34,000/-, towards computer, clothes etc Rs.53,000/- and alleged arrears, Rs.39,300/-. The total amount paid is Rs. 6 5,76,175/-. Out of this amount, the appellant disputes payment made only for computer, clothes etc. which was paid in cash. In this circumstance, there is no question of making any further payment by the respondent to the appellant. 6. Relying upon a decision of Single Judge of this Court in the case of Gitanjali Gajanan Tendulkar vs. Gajanan Dinkar Tendulkar reported in I (1990) DMC 59 and of Single Judge of Punjab and Haryana High Court in the case of Nikhil Kumar Singh vs. Ramesh Kumar Mahajan reported in II(2008) DMC 111, Ms. Bangera, submits that even if Gaurav has attained majority the respondent needs to be directed to bear atleast his educational expenses. Perusal of the record shows that, the respondent has done so till date as and when directed. However, in view of the circumstance, brought to the notice of the Court in C.A. No.92 of 2010, Mr. Kumbhakoni, submits that the respondent should not be taxed any further. Pursuant to the order dated 26th April, 2008 the respondent had paid Rs.17,500/- to Gaurav to enable him to secure admission to BMS Course. The money however was not utilised for the purpose. He has not secured admission for that course, but is doing some correspondence course. Taking into consideration totality of the 7 circumstances, in our opinion, no further amount need to be paid to Gaurav on any count. 7. This brings us to the claim of the appellant for maintenance to herself. Ms. Bangera submits that an order of maintenance can never be a final order and with change in the circumstance either of the spouse can move the Court for modification of the maintenance. She relies upon decision of Single Judge of our High Court in the case of Sanjay s/o. Mahadeo Kelo V/S. Vidya w/o. Sanjay Kelo reported in 2006(4) Maharashtra Law Journal, page 805. This decision cited by Ms.Bangera relates to Section 25 of the Hindu Adoptions and Maintenance Act, 1956, which is not the provision resorted to by the appellant in the instant case. She also relies upon decision of Division Bench of this Court in the case of Geeta Satish Gokarna V/S. Satish Shankarrao Gokarna reported in 2004(3), Maharashtra Law Journal, page 159. In the proceedings before the Division Bench, the marriage between the parties was dissolved by filing consent terms which contained a clause, whereby wife agreed not to claim any maintenance from the husband in future. The Division Bench held that such a clause in the consent terms is contrary to the public policy as the wife s right of future ’ 8 maintenance is a matter of public concern and in such a case the wife can apply for maintenance under Section 25(1) of the Hindu Marriage Act. It further held that Section 25(2) gets attracted only in the case of there being an order passed under Section 25(1) and not otherwise because Section 25(2) provides for modification of the order granted in the face of change in the circumstances. 8. Mr.Kumbhakoni submits per contra that once the appellant accepted a lumpsum amount under the consent terms towards permanent alimony, she is not entitled to claim any further amount by resorting to Section 25(2) of the Hindu Marriage Act. He submits that the very purpose of the consent terms is to put a quietus to all litigations between the parties and not leave any room for future litigation so that the parties may live happily and peacefully in future. Mr. Kumbhakoni relied upon two decisions of the Hon ble Supreme ’ Court in Harpit Singh Anand vs. State of West Bengal, reported in (2004) 10 Supreme Court Cases, page 505 and in Sanghamitra Ghosh vs. Kajal Kumar Ghosh, reported in (2007)2 Supreme Court Cases, page 220, wherein the Supreme Court has acknowledged the need for putting a quietus to all litigations between the parties to 9 matrimonial petitions which may enable them to live happily and peacefully in future. Mr. Kumbhakoni, submits that, if filing of consent terms in court proceedings does not put a stamp of finality on the matrimonial litigation between the parties and if the same is left prone to future litigation, it would not be possible to persuade the parties to such litigation to arrive at a settlement. He further, submits that, disposal of court proceedings by way of settlement brings in a certain amount of harmony between the parties in addition to a quietus on a future litigation. Therefore, resolution of disputes by way of settlement is always welcome, but, for that a stamp of finality must be attached to the consent terms. 9. Mr. Kumbhakoni next submits that Section 25 of Hindu Marriage Act is only an enabling provision. Section 25 empowers the court in the matrimonial case to consider facts and circumstances of the spouse applying for maintenance and decide whether or not to grant permanent alimony or maintenance as has been held by the Hon ble ’ Supreme Court in Rameshchandra Rampratapji Daga vs. Rameshwari Rameshchandra Daga, reported in (2005) 2 Supreme Court Cases,page 33. According to Mr. Kumbhakoni, Section 25 does not confer an absolute right on any spouse to alimony. In this connection, he relies upon decision of Punjab & Haryana High Court 10 in Manjit Singh vs. Mrs. Savita Kiran , reported in AIR 1983, Punjab & Haryana, page 281. In the proceedings before the Punjab & Haryana High Court about a year after the marriage of the parties before it was dissolved by a decree of divorce, the wife had moved an application under Section 25 of Hindu Marriage Act for grant of permanent alimony. It was contended by the husband that during the pendency of the proceedings filed by him under Section 9 of the Hindu Marriage Act, the parties had arrived at settlement whereby the husband had foregone his rights to claim custody of the child and the wife had relinquished all her rights of maintenance, whether under Section 25 of Code of Criminal Procedure or under Section 25, Hindu Marriage Act. In this background of the case, when the trial Court granted permanent maintenance to the wife, Punjab & Haryana High Court set aside the order with following observations. 3. “ A bare reading of Section 25 of the Act discloses that it confers no absolute right on any of the spouses to maintenance or permanent alimony at the time of passing of a decree under the Act. In the given facts and circumstances of a case, the Court may decline to grant the maintenance, if claimed to any of the parties. If that is the legal position or implication of the Section then a spouse may for the same very reasons may throw away his to her right to maintenance by entering into an agreement with the other. Even the learned counsel for the respondent concedes that in case the Court comes to a conclusion that a wife who makes an application under S.25 of the Act is possessed of enough means or is financially affluent the 11 Court may decline to grant maintenance or permanent alimony in her favour at the time of granting of a decree for divorce. If that can be the position why cannot a wife having the same affluent means barter away her right to claim maintenance through an agreement. ” 10. We respectfully agree with the decision of Division Bench of this court in the case of Geeta Gokarne (supra) cited by Ms.Bangera, holding that a clause under the consent terms in matrimonial petitions whereby a wife gives up her right to claim alimony/maintenance in future would be contrary to public policy. Such a wife may apply for maintenance under Section 25(1) of the Hindu Marriage Act and the court would consider the same in the relevant facts and circumstances. The facts of the present case however are different. The appellant herein under the consent terms received a sum of Rs.1,00,000/- and also all the investments made by the respondent in her name while they were together, by way of permanent alimony. Therefore, the above decision cited by Ms. Bangera is not applicable to the facts of the present case. It is already seen above that a pre-requisite for filing application under Section 25(2) of the Hindu Marriage Act, is an order passed granting permanent maintenance or alimony under Section 25(1) of the 12 Act. Section 25(2) enables the court to vary or modify or rescind the order of permanent maintenance/alimony on an application made by the spouse in view of change in the circumstances. The order of permanent maintenance/alimony under Section 25(1) may be made either by way of granting monthly maintenance or by way of one time payment of lumpsum amount. In our considered opinion, when an order of monthly maintenance is passed, it can certainly be subjected to modification in future depending upon change in the circumstances of the parties. This is because, the quantum of monthly maintenance fixed would be taking into consideration, the facts and circumstances as prevailing on the date of the order. However, an order of awarding lumpsum amount by way of permanent alimony would stand on a different footing. The quantum of lumpsum amount would generally be fixed by taking into consideration, the present circumstances, as well as, predictable future circumstances in the facts and circumstance of the case. Further, awarding of lumpsum amount also gives an opportunity to the spouse to utilize that amount for creating a support structure for maintenance for the future, which would not be available to a spouse in case of award of monthly 13 maintenance. Therefore, such an order should not be disturbed easily in the absence of extreme hardship or extra-ordinary change in the circumstances. We hasten to clarify that there cannot be an absolute bar to filing of an application for modification of such an order as uncertainties of life, can throw up humanly inconceivable situations, which would be required to be dealt with, as and when, necessary. In the instant case, no extreme hardship or extra-ordinary change in the circumstance is alleged by the appellant. The change in the circumstance alleged is that both the children started residing with the appellant when the consent terms provided that the custody would remain with the respondent. This change has already been dealt with by passing orders for maintenance and expenses from time to time. The records and proceedings, show that the almost all the expenses of the children, even when they resided with the appellant, have been borne by the respondent. Therefore, it is not open for the appellant even to argue that whatever was the lumpsum permanent alimony provided to her, got either depleted or exhausted for maintaining the children. In the circumstances, we find no merit whatsoever in the two appeals filed. At the same time 14 in order to complete the proceedings between the parties and do complete justice in the matter, it is necessary to clarify here that in view of the subsequent change in the circumstances, the award of maintenance to both the children under the impugned order ceases to operate. (Smt.R.P. SondurBaldota,J) (A.P. Deshpande, J.) 15 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.88 OF 2006 WITH FAMILY COURT APPEAL NO.89 OF 2006 Mrs. Beena Rajan Desai @ Ms. Vidya Chavan .... Appellant Vs. Mr. Rajan Desai .... Respondent Ms. Vasanti Bangera, Advocate for the appellant. Mr. A.A. Kumbhakoni, Sr. Counsel i/by Mr. Tejas D. Deshmukh, Adv. for the respondent. Coram : A.P. DESHPANDE And SMT.R.P. SONDURBALDOTA, JJ. Date : 7th May, 2010 P.C. : OPERATIVE PART In view of the change in circumstances discussed above, we dismiss both the appeals with modification to the impugned order that the award of maintenance to both the children ceases to operate from the date of this order. (Smt.R.P. SondurBaldota,J) (A.P. Deshpande, J.) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION 16 CIVIL APPLICATION NOS. 227 OF 2008, 228 OF 2008, 248 OF 2008, 190 OF 2009 AND 92 OF 2010, IN FAMILY COURT APPEAL NO.88 OF 2006 WITH CIVILL APPLICATION NOS. 163 OF 2006 AND 331 OF 2008 IN FAMILY COURT APPEAL NO.89 OF 2006 Mrs. Beena Rajan Desai @ Ms. Vidya Chavan .... Applicants Vs. Mr. Rajan Desai .... Respondent Ms. Vasanti Bangera, Advocate for the applicants. Mr. A.A. Kumbhakoni, Sr. Counsel i/by Mr. Tejas D. Deshmukh, Adv. for the respondent. Coram : A.P. DESHPANDE And SMT.R.P. SONDURBALDOTA, JJ. Date : 7th May, 2010 P.C. : In view of dismissal of the Family Court Appeal Nos. 88 of 2006 and Family Court Appeal No.89 of 2006, the Civil Application Nos. 227 of 2008, 228 of 2008, 248 of 2008, 190 of 2009, 92 of 2010, 163 of 2006 and 331 of 2008 do not survive and the same are accordingly disposed of. (Smt.R.P. SondurBaldota,J) (A.P. Deshpande, J.)