Dismissed

Shri. Sameer Shah v. Kanchan Shah

Bombay HC5 Feb 2013LPA/111/2012

Case brief

AI extract

What is this about?

In this Letters Patent Appeal, the High Court of Bombay Bench dismissed the husband's challenge against the lower court's interim maintenance order. The court held that interfering with the order would disrupt the children's education in a reputed school where both parents had previously made a joint admission decision. Consequently, the appeal was dismissed, and the civil application stood dispos

What did the court decide?

The appeal was dismissed and the civil application was disposed of.

Shri. Sameer Shah Vs Kanchan Shah — Maintenance and Alimony | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, CIVIL JURISDICTION

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LETTERS PATENT APPEAL NO.111 OF 2012 WITH CIVIL APPLICATION NO.162 OF 2012

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Samir Shah ...Appellant Versus Kanchan Shah ...Respondent

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Mr.Vaibhav Krishna i/b. Juris Consillis for the appellant. Ms. Mrunalini Deshmukh with D. Deshmukh and Mr. Sanjay Udeshi i/b. Sanjay Udeshi & Co., for the respondent.

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CORAM : MOHIT S. SHAH, C.J. & N.M. JAMDAR, J. DATE : 05 February 2013

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P .C.

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This appeal is directed against the order of the learned Single Judge of this Court dismissing the appellant-husband's Writ Petition challenging the order of interim maintenance passed by the Family Court under Section 24 of the Hindu Marriage Act. After noting that the parties have two children the Family Court has given a prima facie finding that the requirements of the two children of the parties are:

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About Rs.80,000/- per month for the son who is presently studying in Standard X and

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Rs.50,000/- per month for the daughter who is studying in the Standard II.

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The Family Court has further held that since both the parents are earning, they should contribute equally towards the welfare and

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up-bringing of the children. On that basis the Family Court has passed the impugned order directing the appellant-husband to pay Rs.40,000/- per month for maintenance of the son and Rs.25,000/- per month for the maintenance of the daughter.

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Learned Single Judge has dismissed the Writ Petition. Hence

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this Appeal.

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Learned counsel for the appellant has submitted that since the appellant's income is only Rs.25,000/- per month as per the Income Tax returns, the Family Court and the learned Single Judge could not have passed an order awarding higher amount of maintenance. It is further submitted that the respondent-wife is also earning and that as per the Income Tax return filed by the wife, her income is higher than the income of the appellant. It is also submitted that merely because the appellant's father was providing the funds for the education and maintenance of the children, when the appellant and respondent both were staying together at the flat of the appellant's parents, that cannot be a ground for directing the appellant to pay such heavy amount of Rs.65,000/- per month as against the appellant's income of Rs.25,000/- per month. The learned counsel for the appellant has also placed reliance on the judgment of a learned Single Judge of this Court in Smt. Anita Tambe etc. vs. State of Maharashtra & Anr. Etc., 2007 (4) AIR Bom. R.470 in support of the contention that normally the income should be assessed on the basis of the Income Tax returns.

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On the other hand learned counsel for the respondent-wife has opposed the appeal and submitted that both the children were admitted to

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the reputed school where they are presently studying school which was a joint decision of the appellant as well of the respondent and having been a party to the said decision, the appellant cannot now be permitted to contend that the appellant cannot afford to pay even 50% of the fees of the children. Learned counsel further submits that only the monthly fees of the son are Rs.55,000/- per month and, therefore, the assessment made by the Family Court for son's needs is reasonable so also the assessment made for the daughter's needs is also reasonable.

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Learned counsel has also placed reliance on several decisions in support of the contention that for determining the amount of maintenance to be paid by the husband to the wife, the Court need not necessarily rely upon the income as mentioned in the Income Tax returns.

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Having heard the learned counsel for the parties, we are of the view that in the peculiar facts and circumstances of the case, it is not necessary to express any opinion on the issue whether the income of the appellant-husband should be decided on the basis of the Income Tax returns. The fact that the appellant and the respondent both had taken a joint decision to get the children admitted to a reputed school and the son is in the standard X and the daughter is in the Standard II, interfering with the impugned order of the Family Court as confirmed by the learned Single Judge would result into dislocation of the studies of the children in a reputed school where they were admitted at the behest of the appellant as well as the respondent. For this reason alone, we are not inclined to interfere with the impugned order of the Family Court as confirmed by the learned Single Judge, which has only determined the amount of interim maintenance during pendency of the divorce proceedings.

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Learned counsel for the appellant, however, states that the Courts below relied upon the Memorandum of Understanding dated 9 March 1994 for assessing the wealth of the appellant. However the said MoU in favour of the family of the appellant and his father has not been implemented by the other parties to that MoU and the matter is in litigation being Suit No.1022 of 2007 on the Original Side of this Court as well as Arbitration Petition Nos.974 of 2011 and 1069 of 2011. It is further stated that the proceedings are pending before different Benches of this Court.

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In view of the above, we leave it open to the appellant to move a Praceipe for clubbing the matters together and for expeditious disposal of all the proceedings.

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Subject to the above liberty and observations the Appeal is dismissed. In view of the dismissal of the Appeal, the Civil Application does not survive. Hence Civil Application stands disposed of accordingly.

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CHIEF JUSTICE

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N.M. JAMDAR, J.

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Shri. Sameer Shah v. Kanchan Shah

Case brief

What is this about?

What did the court decide?

Shri. Sameer Shah v. Kanchan Shah

Case brief

What is this about?

What did the court decide?

What the court decided

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