2013(2) ALL MR 271
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.M. KANADE AND P.D. KODE, JJ.
Smt. Vrinda Bharat Mhapsekar Vs. Shri Bharat Prabhakar Mhapsekar
Civil Application No. 108 of 2012,Family Court Appeal No. 60 of 2011
27th September, 2012
Petitioner Counsel: Mr. J.J. Saxena,Narayana Suvarna
Respondent Counsel: Mrs. Shobha V. Shet
A) That this Hon'ble Court may be pleased to Order and direct the Respondent to pay an amount of Rs. 25,000/- p.m. to the Appellant towards the maintenance of son Uday; and a further sum of Rs. 25,000/- p.m. towards maintenance of the Appellant; and
B) That the Respondent be Ordered and directed to provide residence i.e. a Flat comprising of atleast One room-kitchen, for the Appellant and her son Uday;
C) That the respondent be Ordered and directed to forthwith return to the Appellant the remaining gold ornaments and 3 articles of son Uday, which are ear-marked at Ex" " annexed herewith, as decreed by FC, and directed by this Hon'ble Court, OR alternatively, the Respondent be directed to pay to the Appellant an equivalent amount/value of the said gold/articles lying in custody/possession of Respondent.
D) That pending the hearing and final disposal of the Appeal the Respondent be ordered and directed to repay Rs. 1,00,000/- (Rupees One lakh) to the Appellant, her money which is re-invested in Fixed deposit of Rs. 30,000/- (Rupees thirty thousand only) which amount belongs to Appellant and has been dishonestly withdrawn by the Respondent from her Joint-Bank Account, without her knowledge, by the Respondent, in 2002, after deserting the Appellant, which is admitted fact on record.
E) For Interim and ad-interim reliefs in terms of prayer clauses (A), (B), (C) and (D).
F) Costs of the application be provided for;
G) For such other and further reliefs, as this Hon'ble Court may deem fit and proper, in the nature and circumstances of this case.
2.1 The applicant filed a M.J.Petition no. A-1396 of 2002 in the Family Court, Bandra, Mumbai against her husband-respondent herein seeking divorce on the ground of mental cruelty and for custody of her son Uday and for her maintenance and maintenance of her son. An application for interim relief was filed by her in the said M.J.Petition The family court by Judgment and Order dated 10.1.2011 allowed the divorce petition and granted divorce and permanent custody of son Uday to the applicant herein and further granted maintenance of Rs. 5,000/- per month to her son Uday, however refused to grant any maintenance to her.
3. The respondent-husband filed a Family Court Appeal no. 39 of 2011 and the applicant-wife being aggrieved by the said order filed Family Court Appeal no. 60 of 2011. The said Family Court Appeal was admitted and pending for final hearing. In the said Family Court Appeal the applicant filed an application claiming enhancement of maintenance granted to her son and also claimed maintenance for herself. This Court by order dated 29th September, 2011 was pleased to direct the respondent-husband to pay sum of Rs. 7,500/- per month as maintenance to the child. A further direction was given to the husband to hand over all the articles which were kept in the steel-box.
4. It was submitted that this application was filed by the applicant for enhancement since she had learned that the respondent-husband had been promoted as 'General Manager' and was now earning a salary of Rs. 1,00,000/- (Rupees One lakh) per month and therefore the applicant was entitled to seek enhanced maintenance for her son. It was submitted by the learned counsel appearing on behalf of the applicant that her son Uday was now studying in 8th Standard and therefore she had to incure huge expenses for his education and extra curricular activities. It was submitted that therefore maintenance amount should be enhanced to Rs. 25,000/- per month. It was contended that the respondent owned 3 flats in Mumbai and had Savings Account in six banks. He had two cars and no dependents upon him since his parents were also financially well off. On the other ground learned counsel appearing on behalf of the respondent-husband submitted that all the education expenses of Uday, son of the applicant and respondent were taken care of in the amount of maintenance of Rs. 7,500/- which was paid by him every month. She submitted that the total expenses of his son were to the tune of Rs. 79,682/- per annum whereas the total maintenance paid by him was Rs. 90,000/- per annum. It was submitted therefore the amount of maintenance was liable to be reduced. It was then contended that in September, 2011 the Division Bench of this Court (Coram: D.B. Bhosale & M.L. Tahaliyani, JJ.) had by consent of the parties granted maintenance of Rs. 7,500/- per month to the son Uday and within six months the present application is filed by the applicant. It is submitted that since the earlier order was passed the present application was not maintainable. It was further contended that there was no change in the circumstances. Learned Counsel appearing on behalf of the respondent produced the salary certificate of the respondent and contended that his salary was Rs. 74,910/- per month.
5. We have heard learned counsel appearing on behalf of the applicant and learned counsel appearing on behalf of the respondent at length. We had on earlier occasion interviewed the husband and wife in order to find out whether there was any possibility of settlement. Before us the husband in terms stated that he had no objection to bear the actual expenses incurred by his wife in respect of the educational, extra-curricular and other expenses of his son, Uday. The said statement was recorded by us on 23rd August, 2012 in our Chamber. When the matter was kept in the court, however the respondent's counsel produced a chart and submitted that the actual expenditure incurred on the son was Rs. 79,682/- per annum and the maintenance amount which was paid to him was Rs. 90,000/- per annum. It was contended therefore there was no reason to enhance the maintenance amount which was payable to them.
6. In our view the application for enhancement is maintainable particularly in view of the change of the circumstances viz. the promotion of the respondent as a 'General Manager'. The fact that the respondent is working as a General Manager is not disputed by the respondent. We cannot accept the submission made by learned counsel appearing on behalf of the respondent that the applicant was aware about the promotion of the respondent to the post of 'General Manager' when the earlier order was passed by the Division Court of this Court. Learned Counsel appearing on behalf of the applicant had submitted that the applicant had to pay tuition fees payable to the coaching class. It was to the tune of Rs. 4,00,000/- (Rupees Four lakhs) per annum and also incurred various other expenses for her son. It is common knowledge that a student who wishes to pursue a carrier in either medical or engineering field has to be very often admitted in a coaching class and the tuition fees which are payable to such coaching classes are very high. The respondent in principle had agreed before us that he was willing to pay all the expenses incurred by the wife on their son Uday. This statement was recorded by us in the presence of the parties in our chamber on 23rd August, 2012. It is therefore not open for the Advocate to take now a contrary stand in the court.
7. We feel this is a fit case for enhancement of maintenance which is payable to the son Uday from Rs. 7,500/- per month to Rs. 15,000/- per month. The respondent is earning a salary of about Rs. 74,910/- which is evident from the Salary Certificate annexed by him in the reply and his net pay is Rs. 57,748/-. The application accordingly is partly allowed. The respondent shall pay maintenance of Rs. 15,000/- per month to his son Uday from the date of the application.
The application accordingly is partly allowed.