-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 91 OF 2009 with CIVIL APPLICATION NO. 145 OF 2009 Rahul Bhupinder Luthra ) aged 28 years, occ. Business, residing at 155, Saket Nagar, ) Indore, M.P. 452 018 )...Appellant versus Mrs. Rashmi/Ria Rahul Luthra ) Age 27 years, Occ. Housewife, ) 4-B,601/2, Powai Vihar Complex, ) Powai, Bombay-400 076 )...Respondent Mr. Y.R. Shah for the appellant. Smt. T.F. Irani for the respondent. WITH FAMILY COURT APPEAL NO. 99 OF 2009 Mrs. Rashmi/Ria Rahul Luthra ) Age 27 years, Occ. Housewife, ) 4-B,601/2, Powai Vihar Complex, ) Powai, Bombay-400 076 )...Appellant versus Rahul Bhupinder Luthra ) aged 28 years, occ. Business, residing at 155, Saket Nagar, ) Indore, M.P. 452 018 )...Respondent Smt. T.F. Irani for the appellant. Mr. Y.R. Shah for the respondent. -2- CORAM: P.B. MAJMUDAR & R.V. MORE, JJ. DATE: SEPTEMBER 25, 2009. ORAL JUDGMENT: (Per P.B. Majmudar, J.) With the consent of learned counsel appearing for both sides, these appeals are decided finally at the admission stage itself. Both the Appeals are accordingly admitted. Respective learned counsel appearing for the parties waive service. 2. Both these appeals are directed against the judgment and order passed by the Family Court in Petition No. A-2441/2007 by which the Family Court dissolved the marriage by a decree of divorce by mutual consent and granted Rs. 8,000/- per month to the wife and Rs. 4,000/-per month to the daughter towards their maintenance from the date of the petition. 3. The wife instituted the said petition before the Family Court at Bandra, Mumbai against her husband for a decree of divorce under Section 27 (d) of the Special Marriage Act, 1954 on the ground of cruelty. The marriage between the appellant and the respondent was solemnised on 16th November, 2005 at Bandra, Mumbai under the Special Marriage Act, 1954. Out of the said wedlock, a female child viz. Tiesha was -3- born on 27th November, 2006. The custody of the said child is with the wife. During the pendency of the said petition, the parties entered into consent terms by which it was decided to take divorce by mutual consent and the question about maintenance and stridhan was agreed to be decided on merits by the Family Court. The Family Court accordingly decided the question regarding return of stridhan as well as the claim of the wife regarding maintenance for herself and her daughter. By the impugned order, the learned trial Judge passed a decree dissolving the marriage by mutual consent. The prayer of the wife regarding return of stridhan was rejected by the learned trial Judge. So far as the question of permanent alimony is concerned, the learned Judge of the Family Court directed the husband to pay Rs. 8,000/- per month to the wife and Rs. 4,000/- to the daughter towards maintenance payable from the date of the petition i.e. 20th November, 2007. It is the aforesaid order of the Family Court, Mumbai, dated 17th February, 2009, which is impugned at the instance of the husband in Family Court Appeal No. 91 of 2009, to the extent of seeking reduction of the maintenance at Rs. 2,000/- per month. 4. So far as the wife is concerned, she has also filed a separate appeal being Family Court Appeal No. 99 of 2009, against the rejection of her claim by the trial Court regarding return of stridhan, claim for separate residence and maintenance at the rate of Rs. 30,000/- per month. -4- 5. Since common point is involved in both these appeals, these appeals were taken up for hearing and are being disposed of by this common order. We have also heard the learned counsel appearing for the parties. We have gone through the evidence produced by the parties before the Family Court and have gone through the record and proceedings of the case. 6. Since the issue about divorce is already concluded by consent of the parties before the Family Court, in the present appeals this Court is required to consider the question as to whether the maintenance amount granted by the Family Court is required to be reduced or enhanced or to be maintained as it is. Since the point regarding separate residence is also raised by the wife, the Court is also required to consider as to whether the wife is entitled to have a separate residence and whether she is entitled to a decree for return of stridhan. 7. During the course of argument, Ms. Irani, learned counsel for the wife, submitted that in the petition before the Family Court, the wife had prayed that the husband may be directed to provide security of Rs. One crore towards inheritance claim of the minor child. She is not pressing the said prayer at this stage and seeks liberty to file separate proceeding in connection with the said prayer. In our view, since Family Court has also not gone into this question, this Court is not required to consider the said question. Liberty is, therefore, granted to the wife to take out separate proceedings in this behalf. -5- 8. The wife had claimed Rs. 30,000/- per month before the Family Court towards the maintenance for herself and her child. In order to prove her case, the wife has also tendered her evidence in the form of an affidavit. We have gone through the oral and documentary evidence on record with a view to find out as to whether the amount awarded by the Family Court is required to be enhanced or is required to be reduced or it is required to be kept as it is. 9. Before analysing the evidence, it is necessary to incorporate the consent terms arrived at between the parties before the Family Court. The same reads thus: “1. Both the parties shall withdraw all the allegations made against each other in the above said Petition. 2. Both the parties have got married to each other on 16th November, 2005 and they are staying separately from each other since 24th April, 2007. 3. There is one female child born from this wedlock namely Tiesha, who is one year and five months old. At present custody of the daughter is with the petitioner mother and will continue to remain with the petitioner mother. Respondent Father shall avail access once in a month on Sundays at Bombay as per convenience of both the parties and the daughter. 4. Respondent has agreed to return all the articles and ornaments to the Petitioner as per list agreed by the Respondent. On next court date before the Marriage Councillor and the issue of remaining articles and ornaments may be decided by the Honourable court on merits. 5. Issue of maintenance/alimony may be decided by the -6- Honourable Court on merits.” 9. It is the case of the appellant-wife that her husband is the Chairman of Imperial Academy located at Indore and is the owner of an export house of cars in Dubai and has various other businesses. In her affidavit, she has stated that the monthly income of the husband is Rs. 15 lakhs. It is the case of the wife that her husband is a Non-Resident Indian (NRI) and is travelling to Dubai every now and then in connection with his business. In her affidavit, she has stated that she has travelled to Dubai on three occasions by business class along with him for which she has also produced her passport to substantiate her say. As per the say of the wife, her husband is having two storeyed house at Indore, a house in Delhi, a lavish house in Dubai and two houses in Mumbai for which reference is made to income-tax returns of the husband. It is also the say of the wife that under the Protection of Women from Domestic Violence Act, 2005, the husband is required to provide her with a house/place of residence which she has prayed in her separate application dated 21st April, 2008, under the said Act. 10. In the cross-examination she has admitted the fact that she was working since 2007 and getting salary of Rs. 10,000/- per month. It is pointed out to the Court that in the typed copy it is wrongly transcribed thus: “I am working in Call Centre since June, 2007”. The learned Judge has also accepted -7- the said version and has found that she was working at the Call Centre in the past. In the cross-examination she has denied the suggestion that she is the partner in the business with her father. In the cross-examination, she has reiterated her say that the husband is working in Imperial Academy at Indore. She has denied the suggestion that he was getting Rs. 20,000/- per month and that he is not doing any other job. She has denied the suggestion that she received the articles which were given to her at the time of marriage. In order to substantiate her claim about stridhan, she had produced bills on record. In the cross-examination she denied the suggestion that the said bills are false and bogus. On behalf of the wife, her father was also examined at Exh. 31. In his examination-in-chief he has pointed out that a newspaper advertisement was given for the marriage of his daughter and on that basis ultimately the appellant and the respondent decided to marry. In the examination-in-chief he has stated that at the time of marriage, a reception card was printed in which various businesses have been mentioned. The said witness has stated that a list of jewellery was shown to him. Nothing substantial has been brought out in the cross-examination of the said witness. On behalf of the wife, one Rajinder Kapoor was examined at Exh. 38 in order to prove that the disputed jewellery was purchased from his shop. The said witness has said that the petitioner-wife is his niece and that he is doing jewellery business in the name and style of Daulat Ram & Sons, Karol Baug, New Delhi. The said witness has produced original bill receipt book at Exhs. 40 and 41 and filed xerox copies of carbon -8- copies of bills on record. The said witness has stated that the items at Exhibits-35 and 36 are purchased from his shop. The price of jewellery at Exhibits-35 and 36 i.e. photographs of the jewellery is Rs. 1,03,000/- as well as Rs. 50,000/-. The said witness has pointed out that one bracelet was also given to the petitioner-wife weighing 40 grams. The price of the same was around Rs. 50,000/-. The said witness has stated that the said jewelleries were given to the petitioner after polishing the same and it was weighing 168 grams. In the cross-examination, the said witness has admitted that he was not aware as to whether the marriage was performed on 16th November, 2005 under the Special Marriage Act at Bandra, Mumbai. He has stated in the cross- examination that he had prepared the jewellery after receiving cash in advance. He has admitted the fact that in Exh. 41 it is mentioned that the D.D. was received on 6th December, 2005. He has denied the suggestion that he had prepared bogus bills. 11. On behalf of husband, affidavit in lieu of oral evidence was tendered wherein he has stated that the ornaments and articles were under the custody of the petitioner and the petitioner was using the same. It is his case in the affidavit that the petitioner took away some of her ornaments and articles to Mumbai and some of the articles were left behind at Indore. He has stated that he has signed the consent terms and accordingly agreed to return the list of the articles of the petitioner lying at Indore and no article left behind by the -9- petitioner is lying at Indore which are either with him or with any of his family members. In his affidavit he has stated that his monthly income is Rs. 14,000/-, which is reflected in the income-tax returns produced along with the list of documents. He has stated that he is not the Chairman of Imperial Academy or any business of exporting of cars in Dubai. He has stated that he is not having any houses at Delhi, Mumbai, Indore or Dubai. In the affidavit he has stated that he is willing to pay maintenance to his daughter at the rate of Rs. 2,000/- per month which is as per his capacity. In his cross-examination, he has stated that he has no idea as to what ornaments were given from his side to his wife. He has stated that he has no idea as to what articles she has taken with her. In paragraph 8 of the cross-examination, he has stated that he can produce documents to show that he has obtained the house on rent. In paragraph 9 of the cross-examination, he has stated that he is an NRI due to his father and whenever he went to Dubai, he stayed at his friend’s house. He has further stated that his mother is having custody of house at Dubai and he cannot produce the papers. He has also stated in the cross-examination that his mother is the owner of the Company which is mentioned in Exh. 48. In the cross- examination, he has stated that his father has prepared a will and he can produce the same. He has stated in the cross-examination that in his income-tax returns, income from business is shown but he is not doing any kind of business. He has admitted the fact that an amount of Rs. 37,591/- is shown towards telephone expenses in the income-tax returns. He has also stated in his cross- -10- examination in paragraph 10 that he has closed the accounts of three banks which he had shown in the income-tax returns. He has stated that the amount towards the loan was shown for adjustment of the accounts when his father was alive. 12. On behalf of the wife, documentary evidence is produced in the form of e-mail I.D. which is produced on record by the wife. The same is at Exh. 26 on the record. As per the same, the husband has given the following particulars “ Rahul Luthra available for chat, male, Dubai, United Arab Emirates”. In the said e-mail account, his education is stated as Masters Decree, occupation as export house of cars in Dubai. Job description is shown as “I own my Company”. It is also mentioned that he is Chairman of Imperial Academy and is a great man. In the description of home town it is stated as Indore, Mumbai, Delhi and Dubai. In the passion it is shown as cars and bikes. Music-hip-hop, rock. In the column of City, it is written as Dubai, United Arab Emirates. The wife has also produced income-tax returns at Exh. 43. The copy of the income-tax returns are made available to the Court in a small compilation by the learned counsel for the wife. At page 18 of the said compilation, his address is shown as Rahul Luthra, 9, Dhankunj, M.A. Road, Andheri (West), Mumbai. The income-tax returns were filed from Mumbai. For the income-tax assessment for the year 2005-2006, in the particulars about his capital account, in the column of particulars, an amount of Rs. 12,30,610/- is shown to have been received by -11- way of gift in dollars and an amount of Rs. 12 lakhs is shown to have been gifted to the mother and father. In the said balance-sheet, in the column of investment, Rs. One lakh towards N.S.C. is also shown. Telephone bill is also shown on the particulars of expenditure as Rs. 37,591/-. Relying on the same, it is submitted by the learned counsel for the wife that the appellant-husband is a multi-millionaire having huge properties at Indore, Mumbai as well as at Dubai. It is submitted that the learned Judge of the Family Court gravely erred in awarding only Rs. 8,000/- as the wife is entitled to have the same style of living at par with the life style of the husband. It is submitted that looking to the cost of living and looking to the fact that she is required to spend considerable amount towards the child and looking to the income of the husband which according to her is not less than Rs. 15 lakhs per month, the amount of Rs. 30,000/- claimed was most reasonable and the Family Court should have granted the same. 13. It is submitted by the learned counsel for the wife that the Family Court has not considered the voluminous evidence on record and though it has been found that the husband is not telling the truth before the Court in the matter of disclosure of his correct income, the learned Judge is erred in awarding only Rs. 8,000/- to the wife and Rs. 4,000/- to the child. The learned counsel submitted that there is no reason for the wife to make false case about the ornament and stridhan and in view of the independent evidence of the -12- person who has sold the jewellery, the Family Court should have passed an order of handing over the said stridhan to the wife. It is submitted by her that the Family Court has gravely erred in rejecting the claim for residence altogether. In the consent terms it is clearly provided that the question of maintenance is kept open for consideration of the Court and that the prayer for separate residence can be said to be included in the prayer for maintenance and since the question of maintenance was required to be decided by the Family Court, the Family Court should have considered the claim for residence and should not have rejected the same on the ground that the said prayer has not taken care of in the consent terms. It is submitted by her that though separate proceedings have been taken under the Protection of Women from Domestic Violence Act, 2005, during the pendency of these matters, it came to the knowledge of the wife that the said prayer was rejected by the Family Court on the ground that it has become infructuous. The copy of the order dated 17th February, 2009 is kept on record of this Court which was also shown to the other side and even that order is part of the record and proceedings of the present case. The learned Judge by the order of even date on which day the main petition was decided, disposed of the same by a cryptic order stating that since the parties had agreed to take divorce by mutual consent, the application which is filed by the wife is an interim application, the same is not tenable. The application was, therefore, rejected on the ground that it is not tenable. -13- 14. The learned counsel for the wife vehemently submitted that since providing residence to a wife is required to be considered along with the maintenance, the Court should have considered the question about separate residence at the time of deciding the question about maintenance. In order to substantiate her case, she relied upon the decision of the Supreme Court in the case of Komalam Amma vs. Kumara Pillai Raghavan Pillai and others, reported in AIR 2009 S.C. Page 636 wherein it has been observed in para 9 as under. “9. Maintenance, as we see it, necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less, to which she was accustomed. The concept of maintenance must, therefore, include provision for food and clothing and the like and take into account the basic need of a roof over the head. Provision for residence may be made either by giving a lump sum in money, or property in lieu thereof. It may also be made by providing for the course of the lady’s life, a residence and money for other necessary expenditure. Where provision is made in this manner, by giving a life interest in property for the purposes of residence, that provision is made in lieu of a pre-existing right to maintenance and the Hindu lady acquires far more than the vestige of title which is deemed sufficient to attract Section 14 (1).” 15. The learned counsel for the wife submitted that from the evidence on record it is established that the husband is having large properties and is a very wealthy man, yet he has tried to deprive the wife and the child in the matter of payment of appropriate maintenance amount. -14- 16. Mr. Shah, learned counsel appearing for the husband, on the other hand, submitted that the father of the appellant-husband was having large businesses and was having his business at Dubai also. However, according to him, after the death of his father, the business at Dubai was closed. Learned counsel further submitted that he was employed in the Imperial Academy and was getting salary of Rs. 14,000/-. He has subsequently left that job. An additional affidavit is filed before this Court on 25th August, 2009 wherein he has stated that he is residing with his mother and he is not holding any landline telephone connection in his name. He has stated that he is having mobile connection bearing No. 9826377777 and he is paying the bills for the same. He has stated that he did not have any means to make payment at the rate of Rs. 12,000/- per month as ordered by the Family Court. However, as per the initial order of this Court, for payment of the arrears, he has borrowed a sum of Rs. 2,28,000/- from his friend Mr. Nalin Dave from Indore for which he has agreed to pay in instalment from his income with interest at the rate of 24 per cent per annum. In para 8 of the said additional affidavit he has stated that now he is not working with Imperial Academy and he has taken up a new job with M/s. Parkhya Solution as a Web Developer for a salary of Rs. 8,000/- per month. The said affidavit is filed obviously with a view to see that the amount granted by the Family Court at the rate of Rs. 12,000/- per month can be reduced. Mr. Shah has further submitted that the husband used to go to Dubai and after his father’s death he had gone with his mother for the purpose of closing down -15- the business as the business was run and managed by his mother. Learned counsel further submitted that before the death of his father, he executed a will and bequeathed all his properties to his mother. Learned counsel further submitted that the husband is willing to maintain his daughter for which he is ready to pay Rs. 2,000/- per month and since his wife is earning, she is not entitled to get any maintenance. Learned counsel further submitted that the wife is earning Rs. 10,000/- per month from a Call Centre and, therefore, no maintenance amount is required to be given to her. Mr. Shah has further submitted that the Family Court has rightly held that the evidence produced by the wife regarding stridhan is not believable and, therefore, rightly rejected the said claim. 17. We have gone through the evidence on record. In order to appreciate the real income of the husband, there are certain factual aspects which are required to be taken into consideration. Firstly, the following aspects are required to be taken into consideration. (i) It is not in dispute that the husband is having NRI status and on perusal of the passport which is placed on record, it is clear that he is regularly visiting Dubai. Even after the death of his father he has regularly visited Dubai and the last entries in the passport are of June, 2009. (ii) From the e-mail profile, copies of which are on record, it is clear