-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.3632 of 2007 with Writ Petition no. 3635 of 2007 Capt.Kulwant Singh Grewal ..Petitioner vs. Mrs.Shireen K.Grewal ..Respondent Shri G.S.Godbole for petitioner. Shri R.J.Bhat for respondent. CORAM: S.C.DHARMADHIARI J. CORAM: S.C.DHARMADHIARI J. CORAM: S.C.DHARMADHIARI J. 31st January, 2008 31st January, 2008 31st January, 2008 P.C. P.C. P.C. 1. These writ petitions were placed before me on 9th January, 2008 and I had recorded that the parties agreed to the suggestion from the Court and also modalities of an over all settlement. However, it appears that the parties could not arrive at the figure which would be paid in full and final settlement to the wife so also the immovable property which is to be purchased in the name of son/child. 2. In this view of the matter, both sides inform that there is no possibility of settlement and the petitions may be disposed of after hearing them. 3. Writ petition no.3632 is directed against -2- the order passed by the learned Judge of the Family Court below Exh.29 in petition no.A-85 of 2006. By order dated 23rd February, 2007, copy of which is annexed as Exhibit O to the writ petition, the learned Judge of the Family Court, has dismissed the application by the petitioner/husband for custody of his son. 4. In Writ petition no.3635 of 2007, the petitioner/husband has challenged the order passed by the learned Judge of the Family Court on interim application no.47 of 2006 in Petition No.A-2005 of 2006, copy of this order is at Exh.G to the writ petition no.3635 of 2007. By order under challenge in that petition, the learned judge has awarded interim maintenance to the wife in the sum of Rs.50,000/- and Rs.20,000/- to the minor child with effect from the date of the application. 5. Shri Godbole appearing for the petitioner/husband in support of this petition has contended that in so far as the application praying for permanent custody of the minor is concerned, there is a reference made by the Court to the fact that the Marriage Counsellor attached to the Family court after interviewing -3- the child and the parents has submitted a specific report containing the finding that the child is inclined to reside with the husband/father. Despite such a report being called for and placed on record, the learned Judge has failed to apply her mind considering the settled principle, namely, that of the welfare of the child. The reasons assigned in para 4 of the impugned order have been specifically criticised by the learned Counsel and in support of his contentions he has placed several documents and decisions of this Court and the Hon’ble Supreme Court of India. 6. In so far as interim maintenance is concerned, Shri Godbole’s grievance is that the Family Court failed to take into consideration the fact that the wife wants to claim maintenance without disclosing the details about her financial status. Although a request was made for producing the copies of income tax returns, and the accounts, that request has been refused. The petitioner/husband has shown his financial status by producing income tax returns and other documents. He submits that nothing of the same has been considered. -4- 7. Shri Godbole states that the husband, therefore, desires to make an application for modification of the interim order regarding maintenance so also renew his prayer for permanent custody of the child. 8. Shri Godbole states that the petitioner would abide by the statement recorded by this Court and pay to the wife a sum of Rs.30,000/- per month without prejudice to the rights and contentions of the parties till the application for modification of interim maintenance order is decided. he states that the application for modification would be filed within a period of four weeks from today. The petitioner would also filed an application seeking permanent custody of the minor. 9. Shri Bhat appearing for the respondent/wife supports the impugned order but also contends that the wife would have no objection if this Court grants liberty to the petitioner/husband to apply for modification of the interim order provided the petitioner complies with the statement made to this Court and pays Rs.30,000/- p.m. so also abide by the final order on the maintenance application. -5- 10. After the Counsel are heard at some length and the writ petitions together with their annexures are perused by me, I am of the opinion that interest of justice would be subserved if these petitions are disposed of by granting liberty to the petitioner to apply for modification of the order granting interim maintenance so also review his request for permanent custody of the child and both applications, if preferred, shall be decided by the Family Court without being influenced by earlier observations and on their own merit and in accordance with law. Needless to state that if the petitioner does not abide by his statement made to this Court and pays the sum of Rs.30,000/- till the application for modification is decided or such further period as the Family Court directs, the Family Court is free to pass the order rejecting the application for modification so also denying the permanent custody to the father/husband before me. 11. Wife’s contentions with regard to quantum of the interim maintenance and also with regard to the permanent custody of the child are expressly -6- kept open. She will accept the sums as awarded and paid without prejudice thereto. 12. It is agreed between the parties that the quantum as determined in this order based upon the statement made to this Court (Rs.30,000/- p.m.) shall be paid to the wife on or before 10th of February, 2008 and 10th of each succeeding month till the application for modification is decided. Needless to state that this order in any manner does not affect the access to the minor which has been granted by the Family Court and the petitioner/husband shall continue to have access to the child on the conditions stipulated therein. 13. Petitions are disposed of. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)