IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.5 OF 2008 IN SUIT NO.27 OF 2008 Neville Soli Buhariwalla ..Plaintiff Vs. Mahtab Neville Buhariwalla ..Defendant Ms.Nilima Dutta, Advocate for Defendant. Ms.F.D.Contractor, Advocate for Plaintiff. CORAM : S.C.DHARMADHIKARI, J. DATE : 3rd April, 2009. 1 This is Defendant's Motion seeking interim maintenance and exclusive use and occupation of one Bed Room and Bath Room, so also, kitchen and Return of jewellery articles. 2 I have heard Ms.Dutta appearing for defendant and Ms.Contractor appearing for plaintiff. I have perused the Notice of Motion and the Affidavits- in-reply, so also, Rejoinder and the Additional Affidavit. 3 In my view, as far as return of jewellery articles are concerned, so also for asserting right, title and interest in movable properties, the defendant would have to institute substantive proceeding as it is not possible to decide these issues on the basis of Affidavits alone. 4 However, considering that there are serious disputes and differences, by way of ad interim measure, already use of one bed room for sleeping, bathroom facility so also kitchen, was permitted. This was to be shared as per the arrangement recorded in the orders and more particularly, that of 18th February, 2009 and 5th March, 2009. In my view, without prejudice to the rights and contentions of the parties, this arrangement can continue till the hearing and final disposal of the suit. 5 It is contended by Ms.Dutta that amount of Rs.7,500/- per month is inadequate considering the expenses required for the lifestyle, details of which set out at Annexture `B' to the Affidavit separately. These are meagre and minimum expenses. There is nothing which would indicate that defendant is claiming huge and unreasonable sums. The medical expenses required are also elaborated. It is not as if each and every detail has to be submitted. It is indicated in the affidavit by the defendant that she does not have enough income. Presently, the plaintiff has stopped giving anything, save and except sum of Rs.7,500/- per month. For the medical expenses, food, clothing and travelling expenses some amount is incurred. It is not as if the lifestyle of defendant is lavish and she spents huge sums on Articles of luxury. In these circumstances and when all the details of finance have also been submitted, this is a fit case where Interim maintenance as claimed should be granted. 6 Ms.Dutta contends that the investments made by the defendant are one time and from the income generated therefrom also, it is not as if the daily and recurring expenses can be met. The bank statement would show that the sums to the credit of the Defendant are insufficient. The defendant is defending her case and would also have to incur the expenses on that count. For these reasons the claim of defendant is reasonable and should be granted. 7 On the other hand, Ms.Contractor appearing for plaintiff – husband, states that the husband has pointed out that defendant has income of her own. She has been working. It is not as if she has no income. It is stated by the plaintiff – husband on affidavit that the defendant has investments in shares, fixed deposits, R.B.I. Bond, P.P.F. account aggregating to Rs.10 lacs; and she is earning income of Rs.8,000/- per month from these investments. She has been working in various B.P.Os. and earning salary of Rs.16,000/- per month. She has withdrawn sum of Rs.1,30,000/- from Bank of India and transferred to some other account. She wants money for not just middle class or ordinary lifestyle, but for spending the sums on luxuries and more comforts. The plaintiff had offered the defendant use of another premises independently; but she has not cooperated in this matter. She has asked for huge sum for settlement and she is not cooperating in that behalf either. It is submitted that the Income of the plaintiff has been shown by producing certain documents, but they do not correctly reflect the plaintiff's financial status. He is partner in a firm of Chartered Accountants. It is not as if plaintiff is not incurring any expenses. The education and maintenance of the child/son is the sole responsibility of plaintiff. The son wants to go for higher studies and for all these huge amounts are required. In these circumstances, the amount as granted earlier should not be enhanced. It is, therefore, submitted that the Notice of Motion is not the remedy for the defendant and the same deserves to be dismissed. 8 Having perused the relevant material, I find that the plaintiff has filed a suit alleging Acts of cruelty. Proceedings are under Section 32A(dd) of the Parsi Marriage & Divorce Act, 1936 (Amended). Suit has been filed in the month of July, 2008. Thereafter, the defendant wife filed her written statement through her Advocate. She has moved this Notice of Motion because, in the meanwhile, relations between her and plaintiff were strained to such an extent that she alleged harassment not only at the hands of plaintiff-husband but her son as well. She alleged that they were making it impossible for her to live in the premises. She is suffering from back pain and taking treatment for the same. She was unwell and was required to undergo some tests. Therefore, when the matter was placed before me for the first time, considering her serious allegations, arrangement had to be made for her separate and exclusive stay in the very premises. She was allowed exclusive use and occupation of bed room along with bath room. Use of kitchen was also permitted. This was after some hearing and a without prejudice adhoc arrangement for her stay was made. 9 The defendant requires monies for her treatment and day to day needs. Even, that aspect was considered and, therefore, a sum of Rs.7,500/- was determined as an adhoc figure without prejudice to the rights of both sides. 10 Thereafter, Motion came to be listed for hearing and final disposal. In addition to the affidavit filed on 16th December, 2008 the Defendant filed two Affidavits one dated 21st January, 2009 and another is dated 18th February, 2009. The defendant pointed out in these affidavits her difficulty on account of ill-health. She was consulting an Orthopaedic Surgeon who advised her to take bed rest. She has also prayed that, for her, to stay with dignity and as far as possible to enjoy the same lifestyle, an amount of Rs.7,500/- would not be enough. She has also given reasons as to how it is not possible for her to accept the accommodation offered by the plaintiff. 11 With the assistance of the learned Counsel appearing for both sides, I have perused the documents with regard to the financial status of both plaintiff and defendant. The principles in so far as determination of interim maintenance are concerned, are well settled. The Court must take into account not only the status but the lifestyle which the parties are used to earlier. This is not a case where defendant – wife is claiming interim maintenance for herself and for child/son. She does not dispute that the child/son is being looked after by the plaintiff – husband. However, for her personal needs she has to manage on her own. She is required to spend monies for Items and articles of food. Further she is also required to make her travelling arrangement. She is spending considerble amount for her medical needs. She has pointed out the necessary expenses for the same. Presently, she is not working. Her status of investments is also not such as could be said to be sufficient to meet these needs for a long time. Therefore, some monthly amount must be paid to her. She has claimed Rs.36,000/- per month. 12 Taking totality of the facts and circumstances into account, I find that as some income is being generated by her Investments, interest of justice would be subserved if amount of Rs.15,000/- per month is granted to her as an Interim maintenance. The plaintiff is already paying to defendant a sum of Rs.7,500/- per month. Now, he will have to pay additionally Rs.7,500/- so as to make total interim maintenance of Rs.15,000/- per month. Plaintiff should pay the Interim maintenance from 1st April, 2009 @ Rs.15,000/-. This would be without prejudice to the rights and contentions of both sides in the main petition. The amount should be paid till the hearing and final disposal of Suit No.27 of 2008. Amount be remitted into the Bank account of Defendant; details of which shall be disclosed by plaintiff to defendant within a period of one week from today. The amount of Rs.15,000/- be paid on 1st day of each month but the Amount for April, 2009 be paid on 15th April, 2009. Notice of Motion disposed of in the above terms. [ S.C.DHARMADHIKARI , J.] NMSP5/08