Bombay High CourtSwati Vedant Jatia vs Vedant Jatia on 20 April, 2018Equivalent citations: AIRONLINE 2018 BOM 224Author:Bharati H. DangreBench:Bharati H. DangreTilak                                     1/14                          WP-13144-17




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CIVIL APPELLATE JURISDICTION
                     WRIT PETITION NO.13144 OF 2017


Swati Vedant Jatia                                       ..  Petitioner
      Versus
Vedant Vijay Jatia                                       ..  Respondent

                                           ...

Ms.Taubon F. Irani for the petitioner.
Mrs.Mrunalini   Deshmukh   with   Mr.Sanjog   Parab   and   Mr.Akshay 
Patil i/b Vikrant D. Shetty for the respondent.


                                 CORAM:  SMT.BHARATI H. DANGRE, J
                            RESERVED :   28th MARCH 2018
                      PRONOUNCED :   20th APRIL 2018


JUDGMENT :-1                 The   present   Writ   Petition   is   filed   by   the   petitioner, 

challenging the order dated 11th  September 2017 passed by the 

Family   Court   No.4,   Mumbai,   thereby   partly   allowing   the 

application filed by the petitioner seeking maintenance for herself 

and for her two children.  The petitioner is aggrieved by the said 

order since she is awarded an amount of Rs.25,000/- per month 

and an amount of Rs.25,000/- each has been awarded to her two 

children, and according to the petitioner, the said amount is not 

befitting the status of the parties. According to the petitioner, the::: Uploaded on - 02/05/2018                            ::: Downloaded on - 03/05/2018 23:30:39 :::Tilak                                    2/14                         WP-13144-17

Judge, Family Court has erred in granting the said amount without 

taking   into   consideration   the   earnings   of   the   husband,   the 

requirement of the wife and children and specifically considering 

the status of the parties.2                 In   order   to   appreciate   the   challenge   raised   in   the 

petition,   it   would   be   necessary   to   briefly   deal   with   the   facts 

leading to the filing of present petition.The marriage between the petitioner and respondent 

was   solemnized   on   4th  July   2006   at   Mumbai.     The   petitioner 

alleges that the respondent husband indulged himself into acts of 

Adultery and inflicted cruel treatment to the wife.   According to 

the petitioner, after the marriage, they resided in their matrimonial 

home which was located on 39th and 40th floor of Belvedere Court, 

Mahalaxmi,   Mumbai.     On   8th  July   2007,  the   child   'Gayatri'  was 

born, whereas on 19th August 2008, the petitioner gave birth to the 

second child 'Vir'.   It is the specific case of the petitioner that she 

and   her   children   were   subjected   to   physical   and   psychological 

cruelty   by   respondent   and   his   parents,   and   according   to   the 

petitioner, there was a constant demand of dowry from his family, 

resulting into filing of a complaint by the petitioner against the 

respondent and his family at Agripada Police Station in Mumbai::: Uploaded on - 02/05/2018                          ::: Downloaded on - 03/05/2018 23:30:39 :::Tilak                                   3/14                         WP-13144-17

on 1st May 2013.The respondent filed a petition in the Family Court in 

Bandra for the custody of minor children.  However, according to 

the petitioner, though the petition was filed in the year 2013 when 

the husband and wife were residing in the same house, the copy of 

the  petition  came  to be served upon the  petitioner  only after  a 

period of one year.   The petitioner has narrated in detail of the 

treatment   meted   out   to   her   and   her   children   and   would   allege 

cruelty   in   all   forms.   The   petitioner   has   instituted   proceedings 

underSection   12,18,19,20,22and23of   the   Protection   of 

Women from Domestic Violence Act, 2005 in the Family Court at 

Bandra, Mumbai, by filing a Miscellaneous Application in Petition 

No.D-44 of 2013 filed by the respondent husband seeking custody 

of the children.  It is the case of the petitioner that she had moved 

an application seeking an alternate accommodation for herself and 

her   children   in   view   of   the   cruelty   inflicted   upon   her   and   the 

Family Court was pleased to allow the said application and had 

directed   the   respondent   to   provide   alternate   accommodation   to 

the petitioner and the children for their residence, to be of similar 

standard of the present flat in the same vicinity.   According to the 

petitioner, this order has not been complied  by the respondent.::: Uploaded on - 02/05/2018                          ::: Downloaded on - 03/05/2018 23:30:39 :::Tilak                                  4/14                        WP-13144-17




3                 On   an   application   filed   by   the   petitioner   belowExhibit-108,   seeking   interim   maintenance   for   herself   and   her 

children, the Family Court has passed an interim order.   By the 

application, the petitioner claimed maintenance of  Rs.5,00,000/- 

(Rupees Five lakhs) for herself   and Rs.1,50,000/- (Rupees One 

lakh   Fifty   thousand)   for   every   child   i.e.   total   amount   of 

Rs.8,00,000/- (Rupees Eight Lakhs) was claimed by her by way of 

monthly   maintenance.     As   against   this,   the   Family   Court   has 

granted maintenance of Rs.75,000/- in total to the petitioner and 

her children and it is this order which is assailed by the petitioner.



4                 Learned   counsel   Ms.Taubon   Irani   representing   the 

petitioner would submit that the petitioner has been subjected to 

Domestic   Violence,   and   in   the   petition   filed   by   her,   she   has 

narrated the details about the same.   According to the petitioner, 

she was practically made to stay away from her matrimonial home 

and the children were made to stay in clubs and hotels and later 

on, she shifted to Lodha Bellissimo.  Ms.Irani would submit that on 

an application, seeking access filed by the husband, on 27 th  May 

2016, the Family Court had granted vacation access to the father, 

but  the  father  sought  assistance   of   the   police  for   procuring   the::: Uploaded on - 02/05/2018                       ::: Downloaded on - 03/05/2018 23:30:39 :::Tilak                                  5/14                         WP-13144-17

custody of the minor children.  Ms.Irani would invite the attention 

of the Court to the various instances narrated in the application 

filed   by   her   in   the   proceedings   instituted   under   the   Domestic 

Violence Act and would submit that the respondent husband has 

flouted   the   order   passed   by   the   Family   Court,   directing   him   to 

provide   alternate   accommodation   of   the   same   standard   of   the 

present flat in a similar vicinity.   Ms.Irani would submit that the 

parties   belong   to   a   higher   strata   of   society   and   she   has 

demonstrated the high standard of living of the parties from the 

application,   and   would   submit   that   in   this   backdrop,   she   had 

claimed maintenance to the tune of Rs.8 lakhs from the husband 

in   order   to   enable   her   and   her   children   to   maintain   the   same 

standard of life which they were leading.   Ms.Irani would submit 

that   the   Family   Court   has   erred   in   granting   a   paltry   sum   of 

Rs.75,000/- as an amount of maintenance, which is not befitting 

the standard which the parties are used to, and she therefore prays 

for quashing and setting aside of the said order.Per   contra,   Mrs.Mrunalini   Deshmukh   appearing   for 

the respondent would submit that the Court would be required to 

examine whether a case has been made out for Domestic Violence 

which would permit the wife to claim the interim maintenance by::: Uploaded on - 02/05/2018                         ::: Downloaded on - 03/05/2018 23:30:39 :::Tilak                                  6/14                          WP-13144-17

invoking the  provisions under the said enactment.   The learned 

counsel invited the attention of the Court to the reply filed by the 

petitioner and where certain allegations about the conduct of the 

petitioner.  She would submit that the husband was required to file 

a petition underGuardians and Wards Act, 1890in order to seek 

custody of the children, and though an order of interim access was 

granted, the petitioner has made every attempt to make the order 

unworkable.     As   far   as   the   status   of   the   parties   is   concerned, 

Mrs.Deshmukh   would   submit   that   the   respondent   husband   is   a 

Director in a Company along with the other members of the Family 

and it is the joint family business.  She would submit that the flat 

in   which   the   parties   were   residing   was   in   the   name   of   the 

Company and he is getting a fixed salary from the Company.   As 

regards the allegation that the husband has instituted proceedings 

while they were residing under the same roof, it is submitted by 

the learned counsel that though the proceedings were instituted by 

the husband, on account of the ill-treatment meted out to him in 

the capacity as a husband, the mediators were being involved and 

the discord was being attempted to be settled and therefore, the 

copy of the petition was not served upon the petitioner.::: Uploaded on - 02/05/2018                          ::: Downloaded on - 03/05/2018 23:30:39 :::Tilak                                     7/14                       WP-13144-17

                 Mrs.Deshmukh would also submit that in pursuance 

of the order passed by the Family Court on 4 th  September 2015, 

directing the husband to provide alternate accommodation to the 

petitioner   and   their   children   for   their   residence   of   a   similar 

standard   of   the  present   flat   in   the   vicinity,  she  would   take  this 

Court through the various e-mail exchanged between the counsel 

for the parties.     She would submit that by an e-mail dated 10 th 

September 2015 addressed to the counsel for the petitioner, the 

respondent   had   given   the   details   of   the   flats   having   similar 

standard of the present flat (Lodha Bellissimo) in the same vicinity 

of Mahalaxmi).  It is submitted that by the said e-mail, a request is 

made   to   the   petitioner   to   set   up   a   date   and   time   mutually 

convenient to enable the broker to show the places as suggested. 

The said e-mail then sets out the details of the flat along with its 

location which is reflected as follows :-Building         Location         Floor Bedrooms Area          Property 
                                                               Details
Lodha            Mahalaxmi        30th     2BHK     1300       Semi   furnished, 
Primero                                             bu         harbour   facing, 
                                                               2 car parks
Lodha            Mahalaxmi        45th    2 BHK     1300       Semi   furnished, 
Primero                                             bu         harbour   facing, 
                                                               2 car parks
Lodha            Mahalaxmi        35th    3 BHK     1800       Semi   furnished, 
Primero                                             bu         2 car parks::: Uploaded on - 02/05/2018                          ::: Downloaded on - 03/05/2018 23:30:39 :::Tilak                                    8/14                          WP-13144-17




                 She would further submit that in response to the said 

communication,   the   wife   has   responded   by   stating   that   an 

alternate accommodation shall be made available which should be 

approximately of 3100 sqft 4 BHK  with similar standard clubs and 

other   facilities.     In   the   e-mails   exchanged,   it   is   stated   that   the 

current rate of accommodation is Rs.2.88 lakhs approximately per 

month, and if an alternate accommodation is not being arranged 

for,   then   the   said   amount   should   be   paid   to   the   wife.Mrs.Mrunalini   Deshmukh   would   also   invite   my   attention   to   the 

order   passed   by   the   Family   Court   in   execution   proceedings 

instituted by the wife vide Petition No.RD 429 of 2015 which is a 

Darkhast Petition filed for recovery of Rs.9,90,000/- (Rupees Nine 

lakhs Ninety thousand) from the judgment debtor in pursuance  of 

order dated 4th September 2015.  She would submit that the said 

Darkhast came to be rejected by an observation that the order was 

to provide alternate accommodation by the respondent for their 

residence of similar standard, but no where the amount of rent is 

awarded to the petitioner as alternate prayer and the executing 

court would not go beyond the judgment and decree.  She would 

submit   that   all   the   attempts   to   provide   alternate   residential 

accommodation were refused by the petitioner wife by declining to::: Uploaded on - 02/05/2018                            ::: Downloaded on - 03/05/2018 23:30:39 :::Tilak                                    9/14                         WP-13144-17

accept the said accommodation on the ground that they are not 

similar to the standard of the flat in which they were residing.



5                 On   perusal   of   the   record   placed   before   the   Court, 

including the compilations filed by the parties and on hearing the 

learned   counsel   for   the   respective   parties,   the   question   to   be 

decided   is   whether   an   amount   of   maintenance   awarded   by   the 

Family   Court   is   just   and   proper   in   the   peculiar   facts   and 

circumstances of the case.6                 The   application   seeking   maintenance   filed   by   the 

petitioner wife gives the details of the  standard of living of the 

parties.  It is alleged by her that the respondent is running a family 

business in the name of Modern India Limited and he is the owner 

of   immovable   property   at   Modern   Mill     Compound,   Modern 

Centre, Mahalaxmi, Mumbai, and residential flats  at 38, 39 th and 

40th  floors   of   Belvedere   Court   Mahalaxmi.     It   is   the   specific 

contention of the petitioner wife that she was subjected to cruelty 

and was abused physically and verbally along with her children. 

In an application filed underSection 12of the Domestic Violence 

Act,   she   prayed   for   multiple   reliefs,   including   the   relief   of 

maintenance   of   Rs.8,00,000/-   (Rupees   Eight   lakhs)     for   herself 

and her children, and also prayed that the husband be made liable::: Uploaded on - 02/05/2018                          ::: Downloaded on - 03/05/2018 23:30:39 :::Tilak                                      10/14                           WP-13144-17

to pay the school fees of the children and bear all their educational 

expenses.It   is   no   doubt   true   that   the   parties   have   levelled 

reckless allegation against one another and the issue of access of 

the children have been mutually settled between the parties  in the 

three writ petitions filed before this Court and this Court, by an 

order dated 28th  March 2018 was pleased to dispose of the said 

three writ petitions.7                 The   claim   of   maintenance   by   the   petitioner   wife   is 

based on the allegation that she was subjected to cruelty and the 

respondent   had   intimidated   her   and   had   left   her   without   any 

home, which left her with no option than to relocate herself to a 

rental accommodation.  According to her, she and her children are 

literally   left   to   the   mercy   of   her   relatives   and   it   is   the   moral 

responsibility of the husband to take care of the wife.  However, on 

perusal of the exchange of e-mails between the parties, it can be 

seen that pursuant to the order passed by the Family Court on 4 th 

September   2015,   directing   the   husband   to   provide   an   alternate 

accommodation, the husband had communicated to the wife about 

the alternate residential accommodation in the same area.  Perusal 

of the said alternate accommodation would reveal that the flats::: Uploaded on - 02/05/2018                             ::: Downloaded on - 03/05/2018 23:30:39 :::Tilak                                   11/14                           WP-13144-17

which   were   offered   to   the   petitioner   wife   are   in   the   "Lodha 

Primero" and the location is Mahalaxmi.  The two options offered 

are   of  2  BHK,  whereas one   option   is  3  BHK  flat  which  is  semi 

furnished with  two  car  parkings.   The   brochure  of  the  building 

"Lodha Primero" reflect that the  said building premises have the 

amenities like Gymnasium, full size swimming pool, play area for 

children and club facilities as well as recreation sports and skill 

building activities.  The petitioner wife, however, refused to accept 

the   said   apartment   as   an   alternative   accommodation   on   the 

ground   that   it   do   not   meet   the   same   standard   where   she   was 

residing.  During the course of hearing of the matter, the learned 

counsel for the respondent husband has tendered on record a list 

of similar flats available, and had asked the petitioner to exercise 

her   choice   about   the   said   flats.     The   respondent   husband 

categorically   made   a   statement   that   he   intends   to   honour   the 

order passed by the Court and he has no intention to leave the 

wife   and   the   children   in   a   destitute   condition,   and   he   would 

submit that the wife is at liberty to chose the flats which have been 

offered  with   the   assistance   of   the   broker   in   the   similar   locality. 

However, the respondent has specifically denied the contention of 

the petitioner wife that the earlier residence in which they were 

residing is a flat of 20,000 sq.ft.::: Uploaded on - 02/05/2018                           ::: Downloaded on - 03/05/2018 23:30:39 :::Tilak                                  12/14                          WP-13144-17




8                 In any contingency, the wife is entitled for a flat to bechosen   as   a   residential   accommodation   which   is   of   the   same 

standard.   Same standard do not mean the standard by metes and 

bounds,  but it means the flat   in a good residential locality and 

preferably Mahalaxmi area since the matrimonial house was in the 

said locality with all the amenities and facilities which the  modern 

flat   scheme   in   Mumbai   provide   for,   and   it   should   be   sufficient 

enough   to   accommodate   the   mother   and   her   two   children   and 

permit them to continue them to lead the same life style which 

they   were   earlier   living.     The   offers   made   by   the   respondent 

husband therefore, needs to be looked into by the petitioner wife 

and it is open to the petitioner to chose one of the said flats, and 

the husband is directed to make available the flat in Mahalaxmi 

area with minimum 3 BHK with all the amenities.  The respondent 

is  directed   to  provide  such  an   accommodation   to  the   petitioner 

forthwith   in   compliance   of   the   directions   issued   by   the   Family 

Court   on   4th  September   2015,   and   the   petitioner   is   directed   to 

accede to such an accommodation, and failure to do so, would not 

make   the  husband   liable   for   breach  of   the  order   passed  by  the 

Family   Court   directing   him   to   provide   an   alternate 

accommodation.::: Uploaded on - 02/05/2018                        ::: Downloaded on - 03/05/2018 23:30:39 :::Tilak                                    13/14                          WP-13144-17

9                 As   far   as   the   amount   of   maintenance   is   concerned,though   the   petitioner   had   claimed   an   exorbitant   amount,   no 

evidence has been placed on record as to the earning capacity of 

the   husband   or   the   needs   of   the   wife,   except   making   a   bald 

statement   that   the   Family   was   living   a   luxurious   life.     In   any 

contingency, the amount of maintenance to be awarded is a matter 

of evidence and the Family Court by taking into consideration the 

status   of   the   parties,   have   directed   the   respondent   to   pay   an 

amount of Rs.75,000/- towards the wife and the two children by 

taking into consideration their economical status and standard of 

living.     The   Court   has   rightly   observed   that   the   issue   of 

maintenance as well as  other reliefs sought under theProtection 

of Women from Domestic Violence Act, is to be decided on merit 

after leading evidence by both the parties and the parties would 

avail   opportunities   to   file   their   respective   documents   about 

economical   status.     However,   the   provision   for   interim 

maintenance prompted the Court to fix the amount of Rs.75,000/- 

per month and it cannot be said that the said order is, in any way, 

perverse or illegal.   The Court has rightly observed that the said 

amount   would   be   just   and   sufficient   for   maintenance   of   the 

children and the said amount is directed to be paid as an interim 

maintenance.::: Uploaded on - 02/05/2018                          ::: Downloaded on - 03/05/2018 23:30:39 :::Tilak                                  14/14                           WP-13144-17




10               By the   impugned order, the  Court has  also  directedthe respondent to comply with the order as regards the alternative 

accommodation   and  also   directed   the   respondent   to   pay   school 

fees   for   the   Academic   Year   and   to   continue   to   pay   school   fees 

directly, till the disposal of the petition.     Since no perversity is 

found in the impugned order passed by the Family Court, the same 

is upheld.11               For   the   reasons   recorded   above,   the   present   writ 
petition is dismissed.No order as to costs.(BHARATI H. DANGRE, J)::: Uploaded on - 02/05/2018                          ::: Downloaded on - 03/05/2018 23:30:39 :::