1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.72 OF 2005 IN MISCELLANEOUS APPLICATION NO.140 OF 2001 IN M.J. PETITION NO.A-438 OF 1993 Mandakini A. Chapotkat ] R/o : 64, Blue Heaven, ] Appellant Mount Pleasant Road, ] (Ori. respondent) Malbar Hill, Mumbai - 400 006 ] Vs. Ajayveersinh G. Chapotkat ] Office address : R.S.C.D.-I, ] Respondent 4 Route 340, Orange burg, ] (Ori. petitioner) N.Y. 10962, U.S.A. ] Mrs. Manjiri Shah i/by Smt.Chitra S. Phadke, Advocate for appellant. Mr. Sai Kumar Rammurthy, Advocate for respondent. Coram : A.P. Deshpande & Smt. R.P. SondurBaldota, JJ. Judgment reserved on : 23rd March, 2010 Judgment pronounced on : 7th April 2010 JUDGMENT (Per Smt. R.P. SondurBaldota, J.) 1. This appeal arises out of the order dated 24th June, 2004 passed by the Family Court, Mumbai allowing the application filed by the respondent- husband (M.A.No.140 of 2001) for modification of the order awarding permanent maintenance to the appellant-wife. 2 2. By the judgment and decree dated 24th March, 2000 the Family Court Mumbai decided M.J. Petition No.A-438 OF 1993 filed by the appellant for divorce and other reliefs. The Court passed ex-parte decree of divorce granting custody of the minor child to the appellant. It also granted Rs. 10,000/- per month by way of permanent alimony to the appellant and maintenance of Rs.5,000/- per month to the minor son. Within a short time after the exparte decree i.e. on 11th October, 2000, the respondent filed Misc. Application No. 140 of 2001 seeking modification of the decree so as to cancel the maintenance awarded to the appellant, to reduce the quantum of maintenance awarded to the minor child from Rs.5,000/- per month to Rs.3,000/- per month and for access to the minor child as and when the respondent visits India. 3. The modification of the order of permanent maintenance sought was essentially on the ground that the appellant had suppressed material facts and made a false statement before the Court in her evidence as regards her employment. The Family Court accepted the contention that the appellant was guilty of suppressio veri and suggestio falsi and modified the order of permanent alimony by reducing it from Rs.10,000/- to Rs.5,000/-. The maintenance awarded to the minor son, however was not disturbed. 4. At the time of filing of the petition for divorce in the year 1993, the appellant was a housewife with no source of income. However, during the 3 pendency of the petition, she studied Law and obtained degree of LL.B. in the year 1998. Thereafter, she joined Solicitors Firm by name Nanu “ Hormasjee & Company Advocates and Solicitors R.No.101, Fort Chambers, ” Hamam Street, Fort, Mumbai and started working with the company as Assistant Lawyer, after completing the internship with Mr.Raghoo Dilip Kothari of the Company, then earning about Rs.10,000/- per month. 5. The appellant did not dispute the above facts alleged by the respondent. It was, however argued on her behalf, which argument has been reiterated before us that the suppression of facts and making of mis- statement by the appellant was not intentional. According to her, the mis- statements had inadvertently crept into the deposition because of absolute inexperience and through oversight. Ms.Manjiri Shah, the learned counsel for the appellant submits that at the time of recording of evidence before the Family Court, the lawyer of the appellant was not present and that the learned Judge recorded the evidence as per the petition. It is unfortunate that such an argument is advanced in the matter. The argument is nothing but an attempt on the part of the appellant to shift the blame for making a false statement in deposition upon the Court. The evidence of the appellant was recorded on 24th March, 2000, i.e. two years after she was qualified as a lawyer and started working as Assistant Advocate with the Solicitors firm. Undisputedly, she has been attending the courts, assisting 4 her senior Mr. Kothari. Therefore, she cannot be allowed to say that she was handicapped with inexperience. Her second claim of inadvertence or oversight must be only stated to be rejected. Even as an ordinary citizen/layman, the appellant was bound to depose truth before the court that she was working as an Assistant Advocate and has been earning salary. Instead, the appellant made an absolutely false statement before the court that she was a mere house-wife and was being supported by her father. The fact of her employment and earnings being most material for grant of permanent alimony, any false statement made about the same cannot be allowed to be brushed aside lightly on the ground of inadvertence or oversight. The appellant has also not disputed the extent of her earnings alleged by the respondent. The Family Court, therefore, was bound to take into consideration, the conduct of the appellant in suppressing material facts from the court and speaking falsehood, as also, the fact of her earnings and modify the order of maintenance. 6. The other factor that had apparently weighed with the Family Court was the extent of earnings of the respondent. It was argued by the respondent before the Family Court, that the appellant has falsely represented to the court that his earnings are U.S.$5,000 per month. The appellant had sent letter dated 23rd November, 2002 to the Principal Judge, Family Court, Mumbai purportedly offering information of his personal 5 financial condition (Exhibit-17). During the hearing of the application, he also produced a certificate issued by his employer stating that his annual salary was of $32150.82 i.e. approximately U.S.$2679 per month. 7. Ms.Shah submits that the Family Court could not have considered either the letter dated 23rd November 2002 sent by the respondent or the certificate of his employer to hold that the salary of the respondent is U.S. $2679 per month and not Rs.5,000/- because in the application for modification, the respondent has not even so much as disputed the contention of the appellant as regards his salary. She further points out that despite affording of opportunities during the proceedings of writ petition and letters patent appeal filed by the respondent against the order of interim maintenance, he did not submit his income tax returns on the grounds that it contains confidential information given by the Federal Government of U.S.A. We have perused the application for modification filed by the respondent and find that there is no dispute raised therein as regards his salary to the extent of US$5000 per month. Therefore the Family Court ought not to have permitted the respondent to raise any dispute about it during the course of recording of evidence and arguments on the application for modification. The Family Court has clearly erred in allowing the respondent to spring a surprise at the appellant by producing his salary certificate at the time of evidence for the first time. 6 8. As regards the rival contentions of the parties having inherited ancestral properties, the Family Court, in the absence of particulars, has rightly not taken the same into account. The judgment and decree dated 24th March 2000 granted permanent alimony of Rs.10,000/- per month to the appellant and maintenance of Rs.5,000/- per month for the child. In view of the admission of the appellant that at the time of passing of the decree, she was earning about Rs.10,000/- per month, we find no infirmity whatsoever in the order of the Family Court modifying the decree of maintenance by reducing the same to Rs.5,000/- per month. Not only the conduct of the appellant in suppressing material facts from the Court and making a false statement in her deposition but the merits of the case also i.e. the fact that at the relevant time, she was earning reasonable amount of Rs.10,000/- per month supports the impugned order. We are not inclined to disturb the same. 9. Ms.Shah points out that the impugned order also dismissed the application at Exhibit 16 filed by the appellant seeking from the respondent either a residential accommodation in South Mumbai or payment of Rs. 25,000/- per month towards rent and Rs.25 lacs towards security deposit for acquisition of rental accommodation was dismissed. She submits that the appellant has been residing with her father at Malbar Hill. Both, she and her son, are used to reside in the posh locality of Malbar Hill. Therefore 7 according to her the respondent is liable to provide her with an accommodation in the same area. Merely because the father of the appellant has been residing in the area of Malbar Hill with whom the appellant is put up, she cannot claim residence in the same locality. In any case, once she has been provided with the maintenance by the judgment and decree dated 24th March 2000 which stands modified by the impugned order, there is no question of making any separate provision for her residence subsequently. In the circumstance, we dismiss the appeal with no order as to costs. (Smt. R.P. SondurBaldota, J.) ( A.P. Deshpande, J.)