NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined

1. The present Revision Application challenges the order dated 3.11.2023 passed below Exh.3 by the learned Principal Judge, Family Court, Ahmedabad in Criminal Misc. Application no.2400 of 2019, whereby the learned Family Court had directed the revisionist to pay the interim monthly maintenance of Rs.75,000/- to opponent no.1, Rs.50,000/- per month each to opponents no.2 and 3, totaling to Rs.1,75,000/- per month and had directed that the arrears of maintenance be paid within one month from the date of the order.

2. The applicant is the husband of opponent no.1 and father of opponents no.2 and 3. Marriage between the applicant and the opponent no.1 took place at Mumbai on 25.12.2010.

3. To support the maintainability of the Revision Application, learned advocate Ms. Megha Jani has referred to the provision of Section 19 of the Family Courts Act, 1984 (hereinafter referred to as "the Act") and placed reliance on the judgment of this Court in the case of Manojkumar Page 2 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined Harilal Joshi v. Truptiben Manojkumar Joshi , 2004 (1) GLH 676 to contend that since the maintenance order substantially affects the rights and liabilities of the parties, it would not be termed as 'interlocutory order'. To explain the said submission, reliance is placed on the judgment in the case of Madhu Limaye v. The State of Maharashtra , (1977) 4 SCC 551 and the decision in the case of Amar Nath & Ors. v. State of Haryana & Anr. , (1977) 4 SCC 137.

4. In context with the provision of Section 19 of the Act, reliance was placed on the judgment of the High Court of Madhya Pradesh in the case of Rajendra Kumar Sitaram Pande & Ors. v. Uttam & Anr. , (1999) 3 SCC 134 to demonstrate the maintainability of the revision contending that Section 19(4) of the Act permits filing of Criminal Revision Application against the order of interim maintenance by the Family Court.

5. Section 19 of the Act is reproduced hereunder:-

[(4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an Page 4 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined order under Chapter IX of the Code of Criminal Procedure , 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and as to the regularity of such proceeding.] [(5)] Except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree of a Family Court.

(6) An appeal preferred under sub- section (1) shall be heard by a Bench consisting of two or more Judges."

6. It requires to be noted that the said section in Chapter V under the heading "appeals and revisions" had been amended with effect from 28.12.1991, where earlier the heading was "appeals".

7. Learned advocate Ms. Jani referred to the cause which led to amendment of sub-section (4) in Section 19 . Sub-section (4) was inserted with effect from 28.12.1993. The reference is reproduced hereunder:-

NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined

8. Sub-section (1) provides about appeal to be filed against the judgment and order of the Family Court to the High Court both on facts and on law. The exception to that is the "interlocutory orders". Sub-section (1) therefore lays down the limitation expressing that no appeal would lie against the interlocutory order.

9. Reliance was placed on the judgment in the case of State of Gujarat v. Gaurang Mathurbhai Leuva , (1999) 2 GLH 564 and the judgment of Sunil Kumar Sabharwal v. Neelam Sabharwal , 1991 Cri LJ 2056 as was referred by the Division Bench of Punjab & Haryana Court in Sutner Chand @ Sumer Nath v. Sandhuran Rani , (1 Cri L.J. 1396), and the Hon'ble Supreme Court in the case of Amar Nath (supra), by this Court in Manojkumar Harilal Joshi (supra), to conclude in Paragraph 11 as under:-

10. Therefore, it was concluded that the Revision Application to challenge the interim order in maintenance petition would be maintainable.

11. In the Gaurang Mathurbhai Leuva (supra), the expression "interlocutory order" was elaborated to lay down the proposition of law in the following terms:-

is not defined in Criminal Procedure Code . In order to judge whether the particular order is interlocutory or otherwise, the court has to, making every endeavour, find out whether the order in question is interlocutory order. If it is found that the order passed is purely interim or temporary in nature which does not decide or touch the important rights and liabilities of the parties and give a final shape to a particular point at a particular stage during the course Page 8 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined of the hearing the same can be termed interlocutory order. If the order substantially affects the rights and liabilities of the parties it would not be an interlocutory order. It may also be stated that intermediate or quasi-final order which determines a particular issue finally at any stage of the hearing will not fall within the ambit of interlocutory order."

12. As laid down, the orders which substantially affects the rights and liabilities of the parties would not be termed an interlocutory order. In other words, any intermediate or quasi-final order which determines a particular issue finally at any stage of hearing will not fall within the ambit of interlocutory order.

13. Second proviso in Section 125 of the Cr.P.C.

which came into effect from 24.9.2001 deals with the orders of monthly allowance for the maintenance during pendency of the proceedings which empowers the Magistrate to pass the order to such a person to make a monthly allowance for the interim maintenance for the wife or child, father or mother and the expenses of such Page 9 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined proceedings which the Magistrate considers reasonable and to pay the same to such person as the Magistrate may from time to time direct. Such an order passed would not be considered as an "interlocutory order". The Criminal Procedure Code (Amendment) Act, 2001 , by which the aforesaid provisions regarding interim maintenance were inserted had as its object the making of express provisions of interim maintenance allowance to the aggrieved person and it was also proposed that such order of interim maintenance should ordinarily be made within sixty days from the date of service of notice. Before the amendment, the consistent ratio of judgments of the Hon'ble Supreme Court was that even without an express provision, the Magistrate had the power to make an order directing the person against whom the application was made under Section 125 to pay a reasonable sum by way of interim maintenance and such order of interim maintenance has been treated as final as far as the determination of Page 10 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined interim maintenance allowance was concerned.

14. Consistent with the object of making an express provision of interim maintenance allowance to the aggrieved person, the history behind the insertion of sub-section (4) under Section 19 of the Act would then become relevant to consider that the order of interim maintenance is not an interlocutory order. The provision under sub- section (4) of Section 19 of the Act is for a revision jurisdiction against the order not being an interlocutory order under Chapter IX of the Cr.P.C .

15. sub-section (4) of Section 19 of the Act reads as under:-

16. The referred amendment in Section 19 of the Family Courts Act, 1984 was brought into force to address the concern about the orders passed under Chapter IX of the Cr.P.C . which are for Sections 125 to 128. The revisional jurisdiction is granted to all the orders save interlocutory order passed under Sections 125 to 128 of the Cr.P.C.

17. In the case of Manish Aggarwal v. Seema Aggarwal & Ors. , 2012 SCC OnLine 4816, the maintainability of the appeal was examined in view of Section 19 of the Act against the impugned order granting interim maintenance under Section 125 of the Cr.P.C. by the Family Court where it was held that no appeal would lie against the order passed under Section 125-128 of the Cr.P.C. Further, it was held that the remedy of Criminal Revision Application would be available against both interim and final orders under Section 125-128 of the Cr.P.C. to hold Page 12 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined that all orders passed by the Family Court which are intermediate orders and not merely interlocutory orders would be amenable to the appellate jurisdiction under Section 19 of the Act. The controversy arose in the case of Manish Aggarwal (supra) since the appellant had filed the appeal before the High Court assailing the order of interim maintenance under the second proviso to Section 125(1) of the Cr.P.C. passed by the Family Court. Delhi High Court examined the scope and ambit of the appeal qua different nature of orders which are passed by the Family Court as no appeal can be filed against the judgment and order of the Family Court which is an interlocutory order and no appeal lies in respect of the order, inter alia, which is passed under Chapter IX of the Cr.P.C . [see Section 19(2) of the said Act]. In FAO no.52/2012 titled Preety Bhardwaj Vs. Deepak Kumar Bhardwaj decided on 21.2.2012 passed by a Division Bench of Delhi High Court, where the Court has dealt with the impact of the absence Page 13 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined of Rules under Section 21 of the said Act on the efficacy of the provision of Section 19 (1) read with sub- sections (5) & (6) of Section 19 of the said Act. In that context it was observed that a statutory right of appeal is created under Section 19(1) of the said Act and such an appeal has to be heard by a Bench consisting of two or more Judges as per Section 19(6) of the said Act, and absence of Rules, which are to be framed by the High Court under Section 21 of the said Act, would not dilute the mandate of the legislation as contained in Section 19 of the said Act, especially in view of the use of the expression 'may' in Section 21 of the said Act. A reading of Section 19 of the said Act shows that under sub-section (1), save as provided in sub-section (2), an appeal lies from every judgement or order of the Family Court to the High Court, both on facts and on law. However, this right of appeal comes with one limitation, i.e., it does not lie against an interlocutory order. Sub-section (2) of Section Page 14 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined 19 of the said Act specifically prohibits any appeal from an order passed under Chapter IX of the Cr.P.C . which contains only four provisions, i.e., Section 125 to Section 128. Thus, a conjoint reading of sub-section (1) and sub- section (2) of Section 19 of the said Act makes it clear that the appeal would not be maintainable before this Court from an order passed under Chapter IX of the Cr.P.C . However, conundrum got resolved and the party aggrieved by an order passed under any of the provisions of Chapter IX of the Cr.P.C . is not now remediless. This is so in view of sub-section (4) of Section 19 of the said Act, which provides for the revisionary power specifically qua an order passed under Chapter IX of the Cr.P.C . making the intent of the legislature quite clear. Once again, the exception carved out is that it should not be an interlocutory order and, thus, it would have to be examined as to what is an interlocutory order in the context of Section 125 to Section 128 of the Cr.P.C. for Page 15 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined the purpose of Section 19 (4) of the said Act. It is also to be noted that sub-section (5) of Section 19 of the said Act clearly prohibits any appeal or revision from any judgement, order or decree of the Family Court except as provided under sub-section (1) to (4) of Section 19 of the said Act. Sub-section (6) of Section 19 of the said Act provides for the appeal to be heard by a Bench of two or more Judges from every judgement or order not being an interlocutory order as is mentioned in sub-section (1) of Section 19 of the said Act.

18. Thus, in view of the provisions of law and the judgments cited, there would not be any different view since the intention of the legislature is to provide a remedy of revision against the orders passed under Sections 125 to 128 of the Cr.P.C. and not an appeal as indicated in Section 19(1) of the Act. Thus, it could be concluded that sub-section (4) of Section 19 is a special provision with regard to orders passed under Chapter IX of the Cr.P.C . Page 16 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024

NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined and hence, revision would be maintainable.

19. Referring to the facts of the case, learned advocate Ms. Jani submitted that the interim maintenance amount of Rs.75,000/- to the opponent wife is very excessive and further submitted that the order of Rs.50,000/- per month to each minor should be considered as excessive as the orders to provide maintenance should be in accordance to the earning capacity of the husband and cannot be saddled with the amount which would become difficult to comply with. Advocate Ms. Jani stated that the wife is a capable person to earn for herself stating that she on her own volition had left the matrimonial house and coupled with the fact which has come on record that she was earning prior to leaving the matrimonial house would make itself clear that the wife is capable to maintain herself and further submitted that her earnings should be considered as sufficient to maintain herself and also provide her support for the maintenance of the daughters. Learned Page 17 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined advocate Ms. Jani has placed reliance on the judgments of Deb Narayan Halder v. Anushree Halder , ( 2003) 11 SCC 303 and Samita Saha v. Mohan Saha & Anr. , 2010 SCC OnLine Cal 298, Shiv Kumar yadav v. Smt. Santoshi Yadav, 2004 SCC OnLine CHH 13, Smt. Birwati v. Dharam Singh, 2004 SCC OnLine P&H 383, Santosh Sharma & Ors. v. State of Rajasthan, 2018 (1) RLW 736 (Raj), to contend that when wife leaves the matrimonial home on her own volition without informing the husband and other family members and leaves the home without any reason and residing separately without sufficient reason from husband without cause, cannot claim maintenance from her husband.

20.1 Learned advocate Ms. Megha Jani submitted that within 4 days of leaving matrimonial home, opponent wife filed HMP no.1388 of 2019 before the Family Court, Ahmedabad seeking judicial separation, custody and permanent alimony. The Family Court passed ex-parte ad-interim injunction on 27.6.2019 in terms of Paragraph Page 18 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined 57(a) of the interim injunction application and thereby restraining the applicant or anybody claiming through him from taking custody of minor children from the applicant. Ms. Jani submitted that various orders have been passed in the said litigation from time to time. The Family Court decided most of the interim applications at Exh.5, Exh.48 and 50, 55, 80, 65 and 88 in Family Suit no.1388 of 2019 also on the same date as Exh.3 in Criminal Misc. Application no.2400 of 2018.

20.2 Ms. Jani submitted that vide order passed below Exh.5 dated 03.11.2023, the applicant herein is directed not to take custody of minor daughters and not to take away minors from the custody of the mother. Ms. Jani submitted that vide order passed below Exh.48 and 50 dated 3.11.2023, the opponent no. 1 herein is directed to intimate the applicant herein as and when there is vacation period or holidays of the minor daughters and the father is permitted to meet the daughters on two consecutive days from 11:00 Page 19 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined am to 06:00 pm in Ahmedabad in presence of the opponent no. 1 herein. Ms. Jani submitted that vide order passed below Exh.80 dated 3.11.2023, the applicant herein is directed to comply with order passed below Exh.55 within 30 days, failing which the defence is to be struck off which results in a direction to the applicant herein to pay Rs.8,40,000/- to the opponent no.1 towards school fees of minor daughter Anushka and to pay all upcoming school fees of minor daughter Anushka as per fee structure. Ms. Jani submitted that vide order passed below Exh.65 and 88 dated 3.11.2023, applicant herein is directed to reimburse an amount of Rs.9,25,916/- to the opponent no.1 herein towards education fees of minor daughters Anushka and Anahira for JGIS school and to pay all upcoming educational fees of daughter Anahira as per the fee structure of her school.

20.3 Ms. Jani submitted that the applicant lives in a joint family of generations living together and at the time of marriage of the applicant and Page 20 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined opponent no.1, they lived with a family consisting of applicant's sister, parents and grandparents. Ms. Jani submitted that the applicant lives with his larger family and has always lived so and that some of the family members of the applicant are well-known sport persons led by his grandfather who played test cricket for India. The business of the family which mainly consisted of textiles, sugar and chocolate, has with passage of time faced deep financial crunch. Since about 2012, there is hardly any business which generates considerable liquid funds. Though the family lives in a well- known area of Mumbai, the status of the applicant and his family is of upper middle class. The applicant receives his earning from Plastocrafts Industries Private Limited, an MSME which is in the business of laboratory instrumentation of which he is also a Director. The applicant joined the company in 2014. The annual turnover of the Company has not exceeded Rs.2 crores in the last one decade. The earnings Page 21 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined from Plastocrafts for June, July and August 2021 show his net salary as Rs.91,695/- and his gross salary as Rs.1,03,695/-. Referring to the income tax returns, Ms. Jani submitted, that with regard to annual gross total income with the accounting year, following details have been produced on record.

20.4 Ms. Jani has submitted that the opponent no.1 was working as a journalist with news channels before marriage and was working and earning almost as much as the applicant from 2016. Ms. Jani submitted that during pendency of the proceedings and after leaving the matrimonial home, the opponent no.1 admitted the eldest daughter to an expensive school in Dehradun where the basic annual fees currently is Rs.8,40,000/- much way beyond the financial capacity of the applicant. Ms. Jani submitted Page 22 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined that such a decision was taken absolutely unilaterally by the opponent no.1. Before shifting to Dehradun, the elder daughter was studying in one of the best schools of Ahmedabad just as the younger daughter currently does. Ms. Jani submitted that the learned Judge, Family Court vide order dated 03.11.2023 directed the applicant to pay maintenance of Rs.1,75,000/- in total to the opponents over and above the education expenses and boarding expenses of the two daughters which currently comes to approximately Rs.10 lakhs per annum which is on a very excessive side and submitted that such order should not be beyond the earning capacity of the father and where he would not be in a position to pay, leading to a situation where actual needs of the children could not get catered.

20.5 Ms. Jani submitted that the opponent no.1 is a well-educated person who was earning as a journalist with news channel by her own admission before marriage and who started Page 23 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined earning after the birth of the youngest daughter from 2016 and the documents on record establish her earnings which is almost as much as the applicant. The opponent no.1 is thus in a sound financial condition and is in a position to maintain herself and support herself and earn. Ms. Jani further submitted that considering the qualification and earning capacity of opponent no.1 coupled with the fact that it is the opponent no.1 who left the applicant without any reason which can be attributed to the applicant, the opponent no.1 is not entitled to any maintenance amount and thus, stated that the amount which is directed to be paid to the opponent no.1 is required to be quashed and set aside.

20.6 Ms. Jani submitted that the learned Judge has failed to appreciate the assets and liability affidavit filed by the applicant herein and has erred in concluding that the applicant herein has claimed that he has to spend Rs.1,60,000/- to maintain himself and such a conclusion is Page 24 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined contrary to the bare reading of the affidavit. Ms. Jani further submitted that the total expenditure amount which is mentioned in the affidavit includes Rs.25,000/- towards children, insurance including life and Mediclaim, loan repayments. The personal expenses of the applicant herein as mentioned in the affidavit is not Rs.1,60,000/- as assumed by the learned Judge and further submitted that the entire basis for awarding compensation is the amount of Rs.1,60,000/- allegedly claimed by the opponent as the amount spent to maintain himself which Ms. Jani submits that the same is entirely misplaced and erroneous. Ms. Jani further submitted that the learned Judge has failed to appreciate that what is claimed in Clause 48 of the affidavit at Exh.21 is expenditure of Rs.25,000/- per month towards the children which would include their educational fees and the learned Judge has erred in holding that perusal of his written statement at Exh.12 along with assets and liability affidavit, prima facie Page 25 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined shows that the applicant herein is coming from a rich family having rich lifestyle. Ms. Jani submitted that the said conclusion is contrary to what is stated in the affidavit and the written statement. Ms. Jani submitted that the applicant has maintained that the assets of the family has no bearing on the applicant's personal wealth, that he is merely a director in the companies, that the properties listed by opponent no.1 in Clause 47 are not owned by the applicant in his personal capacity and that the house help and drivers are engaged considering that four generations live together under one roof and such averments cannot be a basis for awarding interim maintenance of Rs.1,75,000/- per month over and above educations fees of approximately Rs.10,00,000/- per annum. 20.7 Ms. Jani further submitted that the applicant has clearly pleaded in Para 44 of his reply to application for interim maintenance that the applicant and his family members hold membership in several clubs in Mumbai, including Wellington Page 26 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined Sports Club, Cricket Club of India, Bombay Gymkhana and Mumbai Cricket Association, that the club memberships are not indicative of a lavish social lifetime but have come to them considering that the family has been involved in sports, that his grandfather and granduncle played test cricket for India, that his father played squash for India, that his aunt played badminton for Maharashtra and the applicant himself played junior county cricket in England as well as premier league squash in the Yorkshire league. Ms. Jani further submitted that the fact that the family or the applicant holds club membership is because they are actively involved in sports. Ms. Jani further submitted that the learned Judge has failed to appreciate the contents of the affidavit and has erred in relying on the memberships of clubs to come to a surmise that the applicant leads a lavish lifestyle. Ms. Jani further submitted that the learned Judge has erred in holding that Exh.25 shows that the house in which the Page 27 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined opponent is residing is worth Rs.55 crore. Ms. Jani further submitted that the valuation report is not supported by any affidavit which was produced belatedly and in any case is in respect of property that does not belong to the applicant and further submitted that the Court has erred in holding that the income tax returns cannot be relied upon solely to decide maintenance amount and that the people may have tendency to show less income or file low income tax return and the learned Judge has erred in holding that the bank statements of the opponent shows that the opponent derived huge entries of transfer of funds except his monthly income and such conclusion is contrary to the documents on record. According to Ms. Jani, the applicant has made all disclosures including his credit card statements, his bank statements, and income tax returns on affidavit and thus, submitted that the learned Judge ought to have relied upon the income tax returns for passing an order for the payment of interim amount as maintenance for the Page 28 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined wife and children which ought not to have been exorbitantly high.

21. The opponent before the Family Court in the interim application for maintenance has stated that she was working as journalist with the news channel and was having petty amount of savings from her past employment and before marriage i.e. in the year 2010, she had left job and almost for 6 years, she was solely dependent on the opponent and that the opponent husband hails from very influential family and is holding equity in company namely Plasto Crafts Pvt. Ltd. and Dr. Writers Food Products Pvt. Ltd to name few and submitted that the companies are owned by the family members and the opponent husband is one of the Director. She has stated that the opponent had never bothered to keep any transparency with the applicant with regard to monthly income and even the mother of the opponent used to negate with them, and has contended that during those years even for basic needs of herself and daughters, she used to Page 29 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined shell out from her own savings or had to ask monetary assistance from her father and that the opponent is from a very well to do business family attains sadistic pleasure in harassing her and minor daughters and being aggrieved and tortured at the hands of the husband and his family members, she had filed an application under sections 10 , 25 and 26 of the Hindu Marriage Act, 1955 being Hindu Marriage Petition no.1388 of 2019.

22. According to the respondent wife since beginning of the matrimony the husband and his family had never accepted her as their daughter-in-law and on every petty matters the family members of the husband used to agitate resulting to which the relations between the parties hereto had hit a rough patch and at present the condition is worsened to an extent that the respondent wife along with minor daughters sense menace in sharing the same roof with the husband. According to the opponent wife, the husband during the matrimony and even till today is Page 30 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined under the influence of his parents to an extent that the respondent wife since day one was never given any privilege to decide what is good or bad for her own children and thus, stated that all these acts coupled staggered to the opponent wife and was left completely discarded in the matrimonial home where parties hereto had last resided together. It is stated that she was mentally abused by the petitioner husband and every time for any tiff between the parties, there was an active involvement of the mother of the husband and for no good reason the mother of the husband used to agitate in front of the husband and was in habit of passing unruly remarks for her in front of other family members and servants. According to the opponent, the petitioner had never shouldered any responsibility as father of minor daughters and as a husband. In that event school fees of minor daughters were been shell out by her and upon asking for expenses from the opponent, the opponent for no good reason subject her to Page 31 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined cruelty and on various instances had even abused parents of her which had actually shocked her. According to her, since the beginning of the matrimonial life, she was exposed to mental cruelty from the husband. According to the respondent, the petitioner was never attached emotionally with her and the minor daughters.

23. According to her all the members of the house have a privilege to party, enjoy a lavish lifestyle and even foreign holidays twice a year but the respondent wife and minor daughters were never allowed to enjoy any amenities. The details with regard to the expenses have been noted in the petition before the Family Court. She has given a list of monthly expenses being incurred by her which are as under:-

24. As per the opponent, the petitioner husband is very wealthy. He has listed assets, immovable and movable owned by the him and his family members.

(a) Residential property, fully furnished at Posh location of Mumbai i.e. 24B, Woodland Cooperative Housing Society, 67 Gopal Rao Deshmukh Marg, Mumbai 400 026 admeasuring 6,500 sq. ft. which approximately worth Rs.70 to 80 crores.

(b) Residential property fully furnished bungalow at Pune (Maharashtra) worth Rs.30 plus crores.

(c) Township at Satara (Maharashtra) at stretch of 100 acres whooping worth Rs.150 crores approx.

(d) Open land space at Panvel worth Rs.100 crores.

Page 34 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024

NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined

(e) Residential property fully furnished apartment posh locality of London named Lords view whooping worth Rs.550 crores approx.

(f) Property at Chembur worth approximately Rs.50 to 60 crores.

(g) Investments in shares, deposits, mutual funds for which the applicant no.1 herein craves liberty to file appropriate application before this Hon'ble Court.

(h) It is submitted that apart from the properties aforementioned the opponent family holds various other movable and immovable properties which at this stage are not known to the applicant.

25. According to her monthly salary of her husband is more than Rs.8 lacs and apart from that in matrimonial place where the applicant along with his parents and grandparents are residing under same roof the estimated monthly expenses of the Page 35 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined family runs to the tune of Rs.15 lacs per month and according to her, at matrimonial place the applicant had at least 6 domestic helps round the clock and 4 drivers.

26. The affidavit of assets and liabilities as per the judgment in the case of Rajnesh v. Neha , (2021) 2 SCC 324 has been filed by both the parties.

27. Learned Senior Advocate Mr. Sanjanwala with learned advocate Mr. Abhisst Thaker for the opponents submitted that opponent no.1 is admittedly a housewife and is not earning. That the applicant in the income affidavit has admittedly stated that the last salary of opponent no.1 was in 2019 and has only mentioned the total salary amount of the past year 2017- 18, and that the opponent no.2 & 3 are residing with their mother at her paternal household. Applicant owns multiple businesses. 27.1 It is submitted that opponent no.1 has filed separate application for reimbursement of Page 36 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined educational expenses under Section 26 of the Hindu Marriage Act in FS no.1388/2019 wherein considering the consent pursis given by the present applicant along with the merits, the Ld. Court allowed the application. That the order for maintenance of children apart from educational expense was passed by the Ld. Trial Court by order dated 03.11.2023. 27.2 The applicant herein is also challenging the order of educational expenses passed in FS no. 1388/2019 before this Hon'ble Court, despite initially consenting to the same, indicative of the adversarial nature of the husband, completely in ignorance of the considerations of welfare and interest of the minor children. The Ld. Court has given temporary custody to the wife (opponent no.1), and given visitation rights to the husband (applicant herein), which the opponent no.1 has always abided by the same. 27.3 It is submitted that the applicant comes from a wealthy family, and opponent no.1 since marriage Page 37 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined was also used to a similar lifestyle, the applicant lives in a sea-view pent-house in an upmarket area of Mumbai, which amounts to crores of rupees, that if the wife and children have resided in that house as a matrimonial household with the husband, and enjoyed that lifestyle, they are entitled to a similar lifestyle. 27.4 It is submitted that the Ld. Court has not directed the husband to buy similar accommodation for the opponents, but keeping in view the provisions for maintenance directed the husband to pay an amount of maintenance entitling the wife and children to enjoy a similar lifestyle as they were accustomed to prior to separation keeping in mind the admitted facts about the husband's lifestyle, his expenses and the assets affidavit filed by both the parties.

27.5 It is further submitted that the arrears of maintenance as per order is around Rs.86,42,584/-.

Page 38 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024

NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined 27.6 The opponents place reliance upon the following decisions:

husband that well educated wife is earning, cannot be believed at present since not supported by any proof. It appears that the applicant-wife has also demanded amount towards education fees for minor daughters as per the paragraph 41 of the application but as per record available, the applicant has filed an application in Family Suit no. 1388 of 2019 before this Court for reimbursement of educational expenditure of minor daughters vide Exh.-55 and application for reimbursement of Page 40 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined school fee for minor daughter Anushka vide Exh.- 65 and in that petition, vide Exh.-55, the Court had passed order in favour of the present applicant wherein reimbursement of fees for minor daughter Anushka was granted along with a direction to the opponent for giving up coming school fees. Therefore, considering the guidelines as laid down in Rajnesh v. Neha , (2021) 2 SCC 324, the order of interim maintenance for minor daughter Anushka will be passed, keeping in mind that there is an order for school fee payment and other educational costs to be paid by the opponent is already passed in favour of the minor daughter Anushka.

29. It appears that the permanent residence of minor daughter Anushka is Ahmedabad and is studying in Delhi, and therefore, her cost of living will be high. It is the argument of Ld. Advocate for the opponent that some amount is paid by the opponent but while deciding Exh.-55 in Family Suit no. 1388 of 2019, the Court has also taken into consideration the said payment and only Page 41 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined after that, the Court has passed the order. Therefore, if any amount is ordered in the said matter, then the same is to be considered in this application as the impugned order is passed over and above the order passed below Exh.-55 in Family Suit no. 1388 of 2019. Moreover, an application is also pending in Family Suit no. 1388 of 2019 or educational fees of the minor daughter Anahira, and therefore, the same cannot be awarded in the present application, and therefore, the order of maintenance, so far as the present application is concerned, will be passed without giving any amount for educational fees of the minor daughter Anahira.

30. Therefore, considering facts of the application and objections and reply filed by the opponent- husband, Assets and Liability affidavits filed by both the parties and oral arguments canvassed by both the Ld. Advocates, that applicant and two daughters are required to be given a sufficient amount of interim maintenance, to the admitted position that except for the Page 42 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined educational costs, which is ordered below Exh.55 in Family Suit no. 1388 of 2019 for minor daughter Anushka, no other order is passed in favour of the wife. Looking to the ratio laid down by the Hon'ble Supreme Court and Hon'ble High Courts, in the present case, the wife is entitled to get maintenance from the opponent for herself and minor daughters as the opponent is legally bound to maintain his wife and both the daughters, in accordance to the income and lifestyle of the opponent-husband.

31. It also appears that over and above travel expenses to Ahmedabad to be incurred by the daughter over and above school fees and boarding charges of the children, there may be other major expenses setting up the need of two minor children, for which the Court has passed an order vide Exh.-55 in Family Suit no. 1388 of 2019, an amount of Rs.50,000/- per child per month is justified at an interim stage, if we look at the lifestyle of the opponent. It also appears that if one wants to get rented premise Page 43 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined then on that account, some amount is likely to be expended. Looking to the fact that the husband is residing in a house of which the value is Rs.50 crore and house having eight housemaids and four drivers, the opponent being a member of different clubs at Mumbai and a Director in different companies, to his income and lifestyle, Rs.75,000/- is just and proper amount of maintenance per month so far as the applicant-mother is concerned. Apart from school fees, boarding fees, travel expenses to Ahmedabad and other miscellaneous expenses are also required to be considered. It is also argued by the opponent that admission in the boarding school was decided by the mother independently and not in consultation with the opponent-father. Such kind of question cannot be taken into consideration at the time of deciding interim maintenance application and the fact of joint parenting has to be urged during the trial, and on consideration of the dispute of the parties, the Family Court may decide the Page 44 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined same. Not only that but if we peruse Exh.-55 order passed in Family Suit no. 1388 of 2019, the Court has held that there were talks between the applicant and the opponent to send minor daughters to boarding school. Minor daughters are in custody of the applicant-mother. She would at present be the best person to look after and decide the welfare and interest of the minor daughters. Therefore, looking to the expenses as narrated over and above school and boarding expenses, an amount of Rs.50,000/- p.m. for each daughter is fair amount which is required to be paid by the opponent for the monthly expenses, when minor children are studying in school/boarding school.

32. The fact remains that interests and welfare of children would have to be of paramount consideration for all, including parents there cannot be any compromise on that even if there are parental conflict. Children are caught in the cross fire between warring parents. Litigation between parties may go on for years. Page 45 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024

NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined Life of the children, their upbringing and development cannot stop. Interim arrangement thus becomes an important aspect so that the progress of children does not come to standstill.

33. The facts which has come on record show that the wife opponent no.1 herein was working as a journalist with news channel and she had left the job. The assets and liabilities are brought on record by way of affidavit. The opponent wife in her affidavit has stated of Rs.5,75,000/- as general monthly expenses of the applicant. She has also noted in column K of the affidavit that her husband is a British citizen and is also OCI Card holder and though residing in India, he has an ancestral property in London across Lords stadium. He also has two bank accounts in U.K. The husband from the age of 11 has also done his schooling from London and thereafter completed graduation from Imperial College, London. The details regarding one residential property at Mumbai and one at Pune and open land space at Page 46 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined Panvel and residential property at London and the property at Chembur and the township at Sataram, Maharashtra has been given, while the petitioner has stated that the educational qualification of his wife is double BA and MA. As per record the net salary deposited in her account from April 2019 was Rs.1,00,435/- and since 23.6.2019 she is staying at parents house in Ahmedabad and she had a gross salary income of Rs.8,80,000/- for the financial year 2017-18 with income-tax returns filed. He has paid voluntarily Rs.4,27,416/- for the school fees of the daughter. He had shown himself as a Director of Plastocrafts Industries Private Limited with a date of employment as 1.9.2013 and the gross income is shown as Rs.1,03,695/-. The other details regarding the bank investment and PPF is shown as Rs.66,741/-, National Pension Scheme of Rs.1,00,000/-, interest on bank deposit and FDR is Rs.4,770/-, current value of the mutual fund is Rs.58,059/- with the household expenditure of groceries/food items, personal care, quantified Page 47 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined per month at Rs.7,500/-, telephone/mobile expenses of Rs.2,500/-, TV set top box charges Rs.649/-, maintenance replacement and repair of household Rs.3,000/- per month, for his personal car the expenses of repairs insurance and loan repayment, Doctor and medical expenses are noted with the details of insurance and mediclaim. The entertainment and recreation club subscription of Rs.52,842/- per annum has been noted with the details of liabilities in the form of credit card payment, repayment of loan (house, car and personal loan) and loans from parents. The installment amount is shown as Rs.69,057.80. Thus the monthly expenditure is shown as Rs.1,59,835/-.

34. In Rajnesh v. Neha , (2021) 2 SCC 324, the Hon'ble Apex Court after having dealt with the facts of the case which was before the Hon'ble Apex Court has deemed it fit to frame guidelines on certain aspects pertaining to the payment of maintenance in matrimonial matters. There are different statutes providing for making an Page 48 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined application for grant of maintenance / interim maintenance, if any person having sufficient means neglects, or refuses to maintain his wife, children, parents. Noting further that different enactments provide an independent and distinct remedy framed with a specific object and purpose, the Hon'ble Supreme Court showing concern of time frames being prescribed by various statutes for disposal of interim applications in practice it is noted that in majority of the cases, the applications are not disposed of within time frame prescribed. Thus, to address various issues which arise for application for grant of maintenance/interim maintenance, it became necessary to frame guidelines to ensure that there is uniformity and consistency in deciding the same.

35. In facts before the Hon'ble Supreme Court, the husband has inter alia submitted that he was presently unemployed and was not in a position to pay maintenance and that he had only operational bank account. The husband declared Page 49 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined to pay further amount towards maintenance for wife and it was submitted that the Family Court has erroneously relied upon the income tax returns. The wife had contended that the amount of Rs.10,000/- awarded for son was granted when he was two and a half years old in 2015 and the said amount was highly adequate to meet the expenses of the growing child who was at that time 7 and a half year old and the school going boy. It was also submitted that the admission fees for the year was not yet paid and if the fees are not paid, the school would discontinue the child and she would be overburdened by the growing expenses with no support from the husband.

36. The Court while considering the provision of Section 125 Cr.P.C. has noted about the remedy provided under Section 125 summarily in nature and substantive dispute with respect to dissolution of marriage could be decided to be determined by the Civil Court/Family Court in appropriate proceedings. It has been noted in Page 50 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined Paragraphs 32, 33 and 34 as under:-

34. In Bhagwan Dutt v Kamla Devi the Supreme Court held that under Section 125(1) Cr.P.C. only a wife who is Page 51 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined "unable to maintain herself" is entitled to seek maintenance. The Court held:

(emphasis supplied)

37. Chaturbhuj v. Sita Bai , (2008) 2 SCC 316 was cited wherein it was held that the object of the maintenance proceedings is not to punish a person for his past neglect but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. The phrase "unable to maintain herself"

38. Bhuwan Mohan Singh v. Meena & Ors. , (2015) 6 SCC 353 was considered above the summary proceedings of Section 125 Cr.P.C. to hold that the said section was conceived to ameliorate the agony, anguish, financial suffering of the woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangement could be made to enable her to sustain herself and the children. Noting that it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able Page 53 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined bodied. There is no escape route unless there is an order from the Court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds.

39. The monthly need of the wife and the children were put on record by the wife and according to her, monthly expenses runs to about Rs.5,74,383/-. The Family Court has noted that the educational expenses would be taken care of in the independent proceedings and while passing the order directing the petitioner to pay interim maintenance of Rs.75,000/- to the wife and Rs.50,000/- each for both minors and in total Rs.1,75,000/- per month. The learned Family Court Judge has dealt with the facts of the case and the declaration of the assets and liabilities along with the income and the monthly expenditure. The order impugned is by way of interim arrangement to see that the monthly needs of the wife and the children are taken care of by the husband. The contention raised by the husband is that the wife is Page 54 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined capable of earning and that she can maintain herself. In Rajnesh (supra) the Hon'ble Apex Court has dealt with this aspect under the heading "where wife is earning some income". It would be relevant to reproduce hereunder the details referred by the Hon'ble Apex Court wherein it has been concluded by noting that the able body husband must be presumed to earn sufficient money to maintain his wife and children and cannot contend that he is not in a position to earn sufficiently to maintain his family. As held by the Hon'ble Supreme Court, if the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the court.

40. For the maintenance of the minor children, the Hon'ble Apex Court has noted under the heading of maintenance of minor children in Paragraphs 91, 92 and 93 as under:-

41. The amount as granted by the Family Court in the impugned order is after having considered on record the standard of living of the husband, the needs of the daughters who are studying in boarding schools. The wife has stated on record about the educational qualification of the husband and the place from where he has completed the studies and the lifestyle of the Page 58 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined husband and his family has been noted in the order. The learned Family Court has observed that the husband has not established any proof that the respondent wife is currently earning. The wife has moved to her parental home with two minor daughters and the wife does not have any source of income to maintain herself and children and for which she might be borrowing fund from the father. The learned Judge has noted the income of the husband and on perusal of the assets and liabilities has noted that the husband has to spend Rs.1,60,000/- to maintain himself. Further as has been noted in the case of Kiran Tomar (supra), the income tax returns do not necessarily furnish an accurate guide of the real income, particularly when parties are engaged in a matrimonial conflict, there is a tendency to underestimate income and hence, it is held that it was for the Family Court to determine on a holistic assessment of the evidence what would be the real income. The petitioner himself has felt the need of Page 59 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined providing Rs.25,000/- for the maintenance of each minor child. The learned Family Court observing the monthly expenditure of the father has noted that the daughters would also be in need of similar amount of maintenance for themselves. Against the monthly expenditure of Rs.5,75,383/- of the wife, the Family Court has granted Rs.1,75,000/- considering the expenditure maintenance amount of Rs.75,000/- for the wife and Rs.50,000/- for the each daughter.

42. Looking to the expenses per month, interim maintenance amount has been ordered. Considering the ratio laid down by the Hon'ble Supreme Court in the case of Rajnesh (supra), the father cannot deny the living expenses of the child. The grievance raised is that without consulting the husband unilaterally the wife has decided to send the elder daughter in boarding school at Dehradun if whether the claim put forward is only extravagant could be proved during the course of trial. The education expenses of the Page 60 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined children must be normally borne by the father. The petitioner could not prove prima facie that at present the wife is working and earning sufficiently to share the expenses of the children proportionately. Further, comparing lifestyle of the parties and the fact that the petitioner is coming from family which holds a good status in the society as a husband, he should take care of the expenses of the wife as is equivalent to his own monthly expenditure. If all the other holiday/vacation personal expense of the wife and technical upgrade/electronic device and computers and the expenses and even the children investment are removed from the list of the monthly expenses and further the insurance liability, considering the other monthly expenses including the rent amount to the ratio of the price of city of Ahmedabad, the amount granted to the opponent wife is just and proper which at the interim stage does not require any interference. The expenses for the children and wife are to be borne by the husband Page 61 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024 NEUTRAL CITATION R/CR.RA/1486/2023 JUDGMENT DATED: 23/07/2024 undefined and the order passed by the Family Court could be considered as just and proper where the husband has failed to even prima facie show that the wife is presently earning for her to contribute and share the expenses in a proportionate manner. In the result, the petition is rejected. Consequently, CRMA 1/23 does not survive and is disposed of.

(GITA GOPI,J) On pronouncement of the judgment, Advocate Ms. Jani has prayed for stay on the operation of the judgment which had been seriously resisted by Advocate Mr. Thaker.

Revision has been rejected confirming the order of the Family Court which is for interim maintenance of the wife and two daughters and therefore, there is no reason to stay the operation of the judgment. However, to give an opportunity to the petitioner to challenge the judgment before the Hon'ble Apex Court, operation of the present judgment is stayed for a period of 30 days.

(GITA GOPI,J) Maulik Page 62 of 62 Downloaded on : Tue Jul 23 21:08:57 IST 2024