1 WP2510.11 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2510 OF 2011 Mr.Atul Avinash Shelke ... Petitioner v/s Smt.Ashwini Atul Shelke ... Respondent Mrs.S.S.Gokhale for the petitioner. Mr.R.S.Apte, Sr. Counsel i/by Mr.Vaibhav Patankar for the respondent. CORAM: R.Y.GANOO, J. DATED: 26TH APRIL, 2011 P.C.: 1. Rule. Rule made returnable forthwith. 2. The learned senior counsel Mr.Apte waives service of the notice of the admission. By consent the petition is taken up for hearing. 3. The respondent herein filed M.J.Petition No. A-1729 of 2005 in the Family Court at Mumbai for divorce against the petitioner. In the said petition, the respondent herein filed 2 WP2510.11 an interim application No.214 of 2005 dated 2.4.2005 for interim maintenance for herself. The respondent had filed interim application for maintenance of minor daughter being Interim Application No.8 of 2006. These applications were decided by the learned Principal Judge of the Family Court by common order dated 20.5.2006. A sum of Rs.2,000/- was ordered to be paid to the respondent. Similarly, a sum of Rs. 4,500/- was ordered to be paid to the daughter born out of the marriage between the petitioner and the respondent. 4. The petitioner thereafter filed an application at Exh.89 for the purposes of setting aside the order of maintenance dated 20.5.2006 mentioned above. The petitioner had also prayed for taking action against the respondent for making false statements on oath i.e. of perjury. Certain other prayers were also sought. That application was decided by the learned Principal Judge of the Family Court by order dated 27.1.2011 and the said application came to be rejected. Against this order dated 27.1.2011, the petitioner has filed this petition. It is also prayed that the interim applications for maintenance should be rejected. It is also prayed that the Darkhast application filed by the respondent should be dismissed. 5. I have heard the learned counsel for both sides. The 3 WP2510.11 learned counsel appearing on behalf of the petitioner drew my attention to the statements appearing on pages 20 onwards and pointed out that on or about October, 2005 when the application for maintenance was filed by the respondent, the respondent was in service and was earning substantial amount by way of salary and perquisites. According to the learned counsel for the petitioner, the solemn averment made in the application for maintenance that, the petitioner is without any means and she is totally dependent on her parents, was a false statement made by the respondent to her knowledge and that on account of the such false statements the learned Judge was persuaded to pass the order of maintenance dated 20.5.2006. 6. I have enquired with Mr.Apte, the learned senior counsel for the respondent, as to whether the respondent was in service on 10.10.2005 when the application was made. The learned senior counsel Mr.Apte, upon instructions from the respondent, who is present in Court, stated that the respondent was in service. He further submitted that at the relevant time she was on maternity leave and that the said leave was without pay. On further query made with Mr.Apte as to whether the respondent was in service at the time when the order dated 20.5.2006 was passed or at a time when the order dated 27.1.2011 was passed, the learned senior 4 WP2510.11 counsel Mr.Apte had no other alternative but to state that the respondent was in service. 7. The aforesaid statements made by the respondent through her counsel clearly go to show that on the day when the application for maintenance was filed, she was in service. Similarly, on the day when the order for maintenance was passed and on the day when the order was passed on the application for revocation of maintenance she was in service. All this will go to show that the respondent was in service all along. If this be so, the correct data as regards the income of the respondent has not come before the Court and as a result of that the learned Principal Judge of the Family Court has not been able to appreciate the facts in the proper perspective as to whether the respondent is entitled to maintenance or not and if so, to what amount. Similarly, the learned Judge has not been able to find out whether minor child was entitled to maintenance from the petitioner and to what extent. Since the respondent has not placed before the Court figures as regards her income and assets, it will be necessary to set aside the order passed by the learned Principal Judge granting maintenance to the respondent and to the minor child. The respondent will have to place before the learned Principal Judge of the Family Court all facts and figures regarding her income and assets. If the petitioner 5 WP2510.11 has not placed before the learned Principal Judge all facts and figures regarding his income and assets, he should be given a chance to do so. 8. In view of the above, order dated 20.5.2006 will have to be set aside and both the applications will have to be decided on merit after parties file the documents as mentioned aforesaid. Similarly, order dated 27.1.2011 referred to above will have to be set aside. The Darkhast application filed by the respondent also will have to be dismissed as the order for grant of maintenance is being set aside by this order. 9. On the question of perjury, I am inclined to observe that the respondent has not placed facts which were very much material for the purpose of decision in the matter. The respondent did suppress the facts which were necessary to decide. Now that the order of grant of maintenance dated 20.5.2006 is being set aside, I feel that there is no need to go ahead to initiate further action in terms of prayer (c) of application at Exh.89. 10. Looking to the facts and circumstances of the case, the conduct of the respondent and the fact that the petitioner had no alternative but to approach this Court for reliefs. I am inclined to direct the respondent to pay to the petitioner 6 WP2510.11 quantified costs of Rs.10,000/- so far as this petition is concerned. The respondent to pay this costs within a period of three weeks from today directly to the petitioner. 11. In view of the aforesaid observations, the following order is passed to dispose of this petition:- (i) The order dated 20.5.2006 passed by the learned Principal Judge of the Family Court, Mumbai, in Interim Application No.214 of 2005 and Interim Application No.8 of 2006 is set aside. (ii) Similarly, the order dated 27.1.2011 passed by the learned Principal Judge of the Family Court, Mumbai, below Application at Exh.89, is set aside. (iii) The application for maintenance filed by the respondent for herself being Interim Application No.214 of 2005 and Interim Application No.8 of 2006 filed by the respondent for maintenance of daughter, are restored to the file of the learned Principal Judge of the Family Court, Mumbai, for decision on merits. (iv) The respondent is hereby directed to place before the learned Principal Judge of the Family Court, Mumbai, all 7 WP2510.11 facts and figures about her income and assets. The respondent shall also place before the learned Judge the salary certificates and other documents concerning her income. If she has filed income tax returns, she will also place before the learned Principal Judge, Family Court, Mumbai, true copies of the income tax returns. If the petitioner has not placed before the learned Principal Judge all facts and figures regarding his income and assets, the petitioner shall do so to enable the learned Judge to consider the income of the petitioner. (v) After collecting all facts and figures regarding the income and assets of the respondent, the learned Principal Judge, Family Court, Mumbai, shall hear and dispose of Interim Application Nos.214 of 2005 and 8 of 2006 on merits without getting influenced by whatever is stated in this order. (vi) The Darkhast application filed by the respondent being No.327 of 2010 is dismissed as it has become infructuous as the order for maintenance dated 20.5.2006 is set aside. (vii) The respondent to pay to the petitioner costs of Rs.10,000/-. The costs to be paid to the petitioner directly 8 WP2510.11 within a period of three weeks from today. 12. Since the petition for divorce was filed in the year 2005, it is required to be decided urgently. Hence, the learned Principal Judge of the Family Court, Mumbai, shall dispose of the said petition as expeditiously as possible and preferably by 31.3.2012. (R.Y.GANOO, J.) 9 WP2510.11