Michael A. B. Lobo vs Smitha Michael Lobo & Ors.

The present Writ Petition arises out of the order passed by the Judge, Family Court, Mumbai on 29.08.2022 in Interim Application No.143 of 2016, below Exhibit–6 in Petition No.A– ^PRAKASH 2405 of 2016, thereby granting interim maintenance to the two children of the parties at the rate of Rs. 20,000/- each per month from the date of Application.

The Petitioner is the husband, who has approached this Court challenging the impugned order dated 29.08.2022, by invoking supervisory jurisdiction of this Court under Article 227 of the Constitution of India.

The brief facts of the case can be summarized as under

The Petitioner and the Respondent were married on 23.12.2005, at St. Thomas Church, Goregaon East Mumbai, as per Christian rites. They have two children from the wedlock: a daughter, Mallishka, aged 15, who lives with both parents in Mumbai, and a son, Merviin, aged 12, who has been living with his maternal grandmother in Goa since infancy, contrary to the wishes of the Petitioner.

The Respondent filed a Petition for divorce on the grounds of cruelty and desertion on 02.09.2016, before the Family Court, Mumbai, along with an Application for interim maintenance and custody of minor children. The Respondent has admitted that she is a science graduate and is employed. It is also undisputed that the Petitioner, the Respondent, and their minor daughter are all living together in the same house on Dockyard Road, Mumbai.

It is alleged by the Respondent that, the Petitioner’s mother has never had a cordial relationship with her. She has never cooperated with the Respondent, even during her pregnancy. Instead of supporting the Respondent, the Petitioner’s mother has opted for a cataract operation. Even when the son was born, the Petitioner’s mother refused to take responsibility and expressed her inability to care for him. As a result, the Respondent had to entrust custody of her newborn baby to her mother, who was residing in Goa.

In February 2011, after the death of the Respondent's father, she brought her son, Merviin, back to Mumbai. However, due to lack of cooperation from the Petitioner’s mother, she was forced to place both the children in a creche, and eventually, her son had to be sent back to Goa. Currently, the son is residing with his maternal grandmother in Goa and is being supported by the Respondent (wife). Based on this situation, the Respondent has filed a Petition for divorce along with an Application for maintenance. The Respondent has claimed permanent maintenance of Rs. 50,000/- per month for both children, along with their permanent custody. She has also prayed for an injunction against their jointly owned flat in Goregaon, Mumbai. In her Interim Application, the Respondent has requested maintenance of Rs. 50,000/- per month for each child. The interim Application was contested by the Petitioner.

While resisting the Interim Application, the Petitioner has inter alia contended that, the Respondent is earning a monthly salary of Rs. 60,000/- as a Marketing Manager at Renaissance Jewellery, and is also working part-time with a company named Maanicare, earning Rs. 36,000/- per month. According to the Petitioner, their son was kept in Goa by the respondent, against his wishes, with the sole intention of depriving the Petitioner’s mother of the company of her grandchildren. The Respondent is guilty of separating the siblings, thereby depriving them of the opportunity to grow up together.

In support of their rival claims, the parties have produced documentary evidence, including salary slips, insurance policies, Income Tax Returns (ITR), etc. They have also submitted Affidavits of Assets and Liabilities. Based on these documents, the Judge of the Family Court has awarded Rs. 20,000/- per month to each of the two minor children, from the date of the Application, with a direction to the Petitioner to continue to bear the educational expenses of the minor daughter.

The Petitioner is, therefore, challenging the impunged order on the ground that, the learned Judge of the Family Court has granted relief on the Petitioner’s salary of Rs.93,691/- , as stated in his affidavit of Assets and Liabilities submitted on 03.08.2021. This salary is made basis for awarding maintenance from the date of the Application, i.e., 02.09.2016. The Petitioner contends that, the learned Judge of the Family Court, has erred in this regard by awarding maintenance for the year 2016, based on his income of 2021. According to him, his salary for the year 2016-17, was assessed at Rs. 74,000/- per month. Therefore, the maintenance amount quantified for 2016-17 is significantly higher than his actual salary for that year. This is an error apparent on the face of the record, which warrants interference in the impugned order. It is further submitted that, although the salary slips for the previous years were available on record, the maintenance was granted based on income derived at a future date, without any reference to those documents.

It is submitted that, the learned Judge of the Family Court failed to appreciate that the Respondent was admittedly employed and earning a salary of Rs. 71,820/- per month in 2021, yet, she did not contribute to the household expenses. This aspect has not been considered by the Judge, Family Court. Furthermore, one more important aspect that has been completely overlooked by the Judge, Family Court, is that the minor daughter, Mallishka, for whom maintenance is awarded, is living with both the Petitioner and the Respondent in the same household, therefore, no separate maintenance should have been awarded for her. All the expenses are already being covered by the Petitioner, who is also bearing the educational and medical expenses of their daughter. It was, therefore, unnecessary to award separate maintenance for their daughter when she is already residing with them in the same household.

He has further drawn my attention to the contents of Affidavit of Assets and Liabilities, wherein the Respondent has disclosed Rs. 15,000/-, as her monthly expenses. The expenses incurred for the maintenance of dependents is claimed to be ranging from Rs. 20,500/- to Rs. 22,000/- per month. Thus, the quantum of maintenance awarded, is significantly higher than the expenses shown by the Respondent.

He further submits that, it is undisputed that the Respondent is employed and receiving a salary of Rs. 71,820/- per month, as stated in her Affidavit of Assets and Liabilities, hence, it is also her duty to contribute to the maintenance of their children. As such, the amount granted by the Judge of the Family Court, at the rate of Rs. 20,000/- for each child, is too exorbitant and warrants interference by this Court.

The prayer of the Petitioner is resisted by the Respondent (wife), who contends that, there is no error in the order passed by the Family Court, Mumbai. The amount awarded by the Family Court is just, fair and reasonable. She has not concealed any information about her income from the Family Court, Mumbai, and has disclosed her income in the Affidavit of Assets and Liabilities.

It is further submitted that the Respondent has not claimed any maintenance for herself; her claim is solely for the maintenance of their two children. The Respondent asserts that the Petitioner has falsely claimed, that he is taking care of their dependent daughter, Mallishka, in fact, it is the Respondent who is covering all of her expenses, including education and other expenses.

According to the Respondent, she is supporting herself as well as their daughter. The Petitioner does not contribute to household expenses. In addition to the household expenses, the Respondent is also responsible for supporting her widowed mother, who is dependent on her.

The Petitioner and the Respondent jointly purchased a residential flat in Goregaon, the Respondent has also contributed for it, and also acted as a guarantor by depositing her LIC policy as security with the bank. Although they took possession of the house on 05.03.2008, the Petitioner has refused to move into the said house. Instead the Petitioner has rented it to various licensees, forcing the Respondent to continue to live in their old house.

Apart from paying the school fees, computer class fees of the minor daughter, and expenses for her yearly picnic (amounting to Rs. 5,000/- per year), the Petitioner does not bear any other expenses for their children. On the contrary, it is the Respondent who is covering expenses related to their daughter’s clothing, hobbies, outings, and occasional visits to Goa to meet her younger brother. Hence, her claim for Rs. 50,000/- per month towards maintenance, is both reasonable and justified. The learned Judge of the Family Court has awarded Rs. 20,000/- each to the minor children, which is a reasonable amount.

It is further submitted that, the Application for interim maintenance has been filed to claim maintenance solely for the children, since the Respondent is managing her own expenses. The Petitioner is equally responsible for the upbringing of their children and the associated expenses. It is submitted that the Respondent has borne all the expenses of the children for the past six years, without any contribution from the Petitioner. As a father of the children, the Petitioner is equally responsible to contribute towards their day-to-day expenses, as well as their educational and other necessary expenses.

The learned Advocate has made a categorical statement that, the Petition for Divorce was filed by her on 12.09.2016, when the children were aged about 9 and 6 years old, respectively. Her claim was made according to their existing needs, limiting the claim to Rs. 50,000/- per month based on which the impugned order was passed by the Family Court on 29.08.2022. There has been a significant rise in the cost of living, travel, and other day-to-day expenses in a city like Mumbai during the intervening period, therefore, the amount granted by the Judge, Family Court falls short of meeting the basic requirements of the children. It is, thus, submitted that the Writ Petition filed by the Petitioner–husband deserves to be dismissed with costs.

I have considered the rival submissions made by the respective parties. The Petitioner–husband has challenged the grant of interim maintenance of Rs. 20,000/- per month to each of the children. It is his contention that, since the Respondent is also employed and earning, he alone cannot be burdened with full expenses of the children. Accordingly, to him, with a monthly salary of Rs. 60,000/- he is required to support his elderly mother, as her only son. His finances do not permit him to shell out Rs. 20,000/- per month to each child. He is already covering the medical and educational expenses of their daughter and is willing to incur expenses for his son, if the son is brought back to Mumbai.

It is the case of the Petitioner that, since the Respondent is financially independent, she does not require any maintenance. On the other hand, the Respondent asserts that the income of the Petitioner is Rs. 1,10,000/- per month, he has a permanent job with a reputed company, and a take-home salary of Rs. 71,000/-per month. Therefore, she contends that the Petitioner is obligated to maintain their two children, for whom he is equally responsible.

This is a peculiar case where, despite the divorce proceedings having been filed by the Respondent (wife), the parties are still living together. It appears that even the Petitioner’s mother is residing with the Respondent in the same house. Both parties have filed their Affidavits of Assets and Liabilities, disclosing their income and expenses.

The Petitioner filed his Affidavit on 03.08.2021, in which he disclosed that the parties are living under the same roof, with monthly household expenses, including medical bills, amounting to Rs. 25,000/-. Under the category of dependents, he has listed his mother, wife, and daughter, with a total expenditure ranging from Rs. 35,000/- to Rs. 40,000/- per month. He has provided a summary of expenses, including Rs. 33,060/- per year for his daughter’s school fees and Rs. 23,162/- per year for his daughter’s insurance policy.

The Respondent filed her Affidavit of Assets and Liabilities on 30.11.2021, in which she has disclosed her monthly expenses to be Rs. 15,000/-. As regards her daughter’s expenses, she has claimed that she covers all other expenses, requiring at least Rs. 5,000/- per month to be contributed by her. She is also supporting her aged mother, who resides with their son in Goa. The expenses towards dependents, is claimed to range between Rs. 20,500/- and Rs. 22,000/- per month. Additionally, she has stated that, there are various other expenses for both the children, which need to be taken care of. Admittedly, the Petitioner has not contributed to any of those expenses, except for the school fees of daughter.

From the Affidavits of both parties, it is evident that both the parties are earning sufficiently and are maintaining themselves without depending on the other spouse. The only issue regarding maintenance is related to the children, which is the subject matter of the present Petition. The documents on record and the statements of the parties clearly show that, apart from a few expenses like school fees and the yearly premium of the insurance policy, the Petitioner does not seem to be contributing to the children’s expenses or the household expenses. On the other hand, the Respondent is taking care of both, the daughter, and the minor son, who is residing with her mother in Goa. Therefore, the financial burden on the Respondent is comparatively greater than that on the Petitioner. As the primary caregiver of the children, all their necessities are met by the Respondent. She is also responsible for the maintenance of her elderly mother, who is caring for her minor son in Goa.

Upon perusing the Affidavits of Assets and Liabilities filed by both parties, along with other documents submitted by the Respondent, the Judge of the Family Court has awarded an amount of Rs. 20,000/- per month, to each of the two children. This amount is quantified, after considering that, their six-year-old son was residing with the Respondent’s mother in Goa. The Judge, Family Court also taken into account the respective salaries and investments made by the parties in shares and fixed deposits (FDRs). Relying on the claim of the Respondent regarding the expenses required for maintaining her minor son, the learned Judge held that the Petitioner has failed to maintain his son. Apart from essential expenses, the Petitioner has not provided maintenance for his daughter either.

It is rightly observed by the learned Judge that, even though the Respondent is earning, Petitioner cannot shirk his responsibility to maintain his children. Based on the extracts of the affidavit of Assets and Liabilities, filed by the respective parties the learned Judge has arrived at a conclusion that, Rs. 20,000/- per child would be a reasonable amount for the upkeep and maintenance of the child.

Considering the income of both parties, I do not find any error is committed by the learned Judge of the Family Court in granting maintenance of Rs. 20,000/- per month for both children in these days of inflation. Significantly, although the interim maintenance was filed on 02.09.2016, the impugned order came to be passed on 29.09.2022. During the intervening period, the Respondent alone was responsible for taking care of all the needs of the children. Therefore, the ground raised in the Petition that, the quantum of maintenance granted to the children is not proportion to his income of the year 2016–17, bears no merit. The objection raised by the Petitioner holds no substance, since the Respondent did not receive any financial support since 2016 while raising the children, i.e. during the pendency of her Interim Application.

It is trite law that, an Application for Interim maintenance is to be granted from the date of filing the Application. Thus, falling in line with the observations made by the Hon'ble Supreme Court in Rajnesh Vs. Neha & Anr.^{11.(2021) 2 SCC 324} thereby removing the ambiguity about the date from which the maintenance is to be granted, the learned Judge has rightly passed an order granting maintenance from the date of the Application.

As observed herein above, it is primary responsibility of the father to support the child with expenses for food, clothing, residence, education and medical expenses. All these basic requirements are required to be taken into account while quantifying the maintenance of children. While doing so, the Judge has to award a reasonable amount according to the necessities and requirements and should not be overly extravagant just because the income of the father is comparatively very good. If both the parties are earning, in such case, the responsibility of maintaining the minor children is required to be proportionately divided between the parties. This settled view has been once again recorded by the Hon’ble Supreme Court in the case of Rajnesh Vs. Neha & Anr. (Supra), after taking into account various judicial pronouncements rendered by the High Courts as well as the Hon’ble Supreme Court.

While considering the issue of the date of grant of maintenance, it is observed by the Hon’ble Supreme Court that maintenance is required to be granted from the date of filing of the Application. This observation is made on the basis of the rationale that the children and wife, upon being deserted are compelled to face destitution and vagrancy. If the maintenance is not awarded from the date of the Application, the parties seeking maintenance would be deprived of sustenance due to the time taken in deciding the Application, which often extends over several years. Applying the guiding principles laid down by the Hon’ble Supreme Court, the learned Judge, Family Court, has allowed the Application of the Respondent from the date of the Application.

Although the income of the Petitioner for the year 2021 has been taken into account while quantifying the maintenance, it also needs to be appreciated that the Respondent has been providing for both the children from the date she filed the Application for maintenance in the year 2016. She has been deprived of the financial support from the Petitioner for raising the two children since 2016. Considering that the affidavit of Assets and Liabilities was filed by the Petitioner on 03.08.2021, the learned Judge has determined the quantum of maintenance on the income of that particular year. Therefore, there is no error committed by the learned Judge while passing the order impugned.

The Petitioner has failed to make any ground for interference in the impugned order, hence, the impugned order does not deserve any interference and the same is dismissed being devoid of any merits.

Upon pronouncement of the Judgment, the learned advocate for the Petitioner makes a request that, initially this Court vide order dated 11.07.2023, had granted stay to the impugned order, subject to deposit of an amount of Rs. 15,00,000/-. Therefore, in view of the stay granted by this Court, that is operating during pendency of proceedings he is praying for stay to the execution of this order, for a period of eight weeks. In view of the request of the learned Advocate for the Petitioner and that the order of stay is still in operation, the execution of this order shall remain stayed for a period of four weeks from today.