MRS. with respect to the expenses incurred

MRS. with respect to the expenses incurred

MRS.

RASHMI/ RIA RAHUL LUTHRA VERSUS MR. RAHUL BHUPINDER LUTHRA. Facts of the Case: The petitioner Mrs Rashmi Luthra(Petitioner) lawfully married Mr Rahul Luthra as per the Special Marriage Act, 1954 on 16th November,2005 which has been registered by the Registrar of Mumbai (Marriage Certificate). The Marriage has also been performed as per the Hindu rites and ceremonies on 23rd Nov,2005.

The expenses for the marriage ceremonies were borne by the petitioners father(Bill of the expenses) The Reception of the marriage was held on 24th Nov 2005,and the expenses of the marriage reception was equally paid by both the parties as per the understanding . The total expenses for the marriage spent by the petitioners father is approximately Rs 10 lacs. On 27thNov, 2006 a daughter was born out of the wedlock, named Tiessha in Indore who is in the care and custody of Rashmi Luthra The petitioner filed a suit for Divorce u/s 13(1)(ia) of The Hindu Marriage Act,1954. n the Family Court At Bandra, Mumbai Petition No A-2441 Of 2007 dated 2oth Nov along with an interim application claiming maintenance of Rs 30,000 /month for the minor child and the petitioner and also the Respondent pay a deposit of Rs1 crore in the minor’s daughters name. (Bills with respect to the expenses incurred by the Petitioners parents for the minor child have been produced). CONSENT TERMS: During the pendency of the said petition It has been mutually decided between the petitioner and the Respondent Vide Consent Terms dated 9th May,2008 that Divorce by Mutual Consent be filed in the Hon’ble Family Court.

The petitioner and the respondent are staying separately from 24thApril 2007 onwards and the petitioner have stated that the marriage has irretrievably broken down and hence have mutually agreed to divorce . In the consent terms it was agreed that the custody of the daughter is with the petitioner mother and will continue to remain with the mother . The respondent father shall avail access once a month at Mumbai , as per the convenience of both the parties .The respondent has to return the articles & ornaments as per the list. The issue raised by the petitioner is regarding maintenance, alimony and accommodation for the petitioner and the minor child who is 1year and 5 month old.

AFFADAVIT OF PETITIONER: As per pleading of the petitioner, the respondent is having 2 houses at Mumbai, 2 storey houses in Indore, Delhi, & a lavish house in Dubai as shown in the Income tax filed by the respondent. He is theChairman of Imperial Academy in Indore, (as shown in the e mail) and is the owner of the Export House of cars’ in Dubai and has various other business. (Marriage card showing the various business ventures) The Respondent and the family members are Non Resident Indian and they have travelled to Dubai every now for Business. In her affidavit the petitioner has stated that she has also on 3 occasions travelled to Dubai by Business class (as shown in the passport) The monthly income of the respondent is Rs 15 lacs which he is trying to conceal before the Honb ’le Court.APLICATION FOR CUSTODY & / OR ACCESS OF THE MINOR CHILD BY THE RESPONDENT: On 21st February, 2oo8 an interim application has been made, in which the Respondent states that the petitioner is working for gain, she is most of the time out of the house . She has no love for the child, and there is no one to look after the progress of the child, and hence she is not fit to have care &custody of the child. The Respondent states the custody of the child be given to him and he can look after the education, prospectus, of the child.

REPLY TO THE APPLICATION: On 21st February the Respondent in reply to the interim maintenance application has stated that the allegation is not maintainable as there is no justification and to be dismissed. In his reply statement he has stated that he is employed with Imperial Academy and getting a salary which can be substantiated from the Income tax return which the Respondent have filed for the past 3 years, and not doing business as stated and earning 50 lacs .Due to the frivolous and vexatious allegation made by the petitioner, the Respondents parents have been hurt and hence he has been removed from the house ,and now is residing in a rented apartment(rent receipt annexed)and also has deprived the Respondent from the love &affection of the daughter and the marital bliss.

All the expenses for the marriage ceremony and the wedding reception was spent by the Respondent . The instant proceedings has been done only with a view to harass the Respondent and make financial benefit to the petitioner ,and to extort maximum monetary benefits by causing hardship to the Respondent.INTERIM APPLICATION BY THE PETITIONER: On 3rd April 2008,an interim application was filed by the petitioner under s-19 &S-22 of the Domestic Violence Act 2005 for an act of mental cruelty and emotional distress caused to the petitioner by the Respondent and his family members ,and therefore under s-22 of the Act the petitioner claimed damages of Rs 5 lacs and a place of residence and the return of stridhan and also the jewellery and cash which has been gifted to the minor child by the parents and the relatives of the respondents.REPLY BY THE RESPONDENT (WRITEEN STATEMENT) : In its reply dated 21st April 2008 the Respondent states that the allegation made by the petitioner is not maintainable in law as there is no justification and proof of facts and ought to be dismissed. The petition for divorce is filed under different Act , and relief is also under different Act and hence the Hon’ble court have no jurisdiction to try the present application under s-19 &S-22 of the Domestic Violence Act, 2005.The Respondent denies all the allegations made by the petitioner as false and that there is no matrimonial dispute .

The petitioner has approached the Hon’ble Court with un clean hand be evidenced from the fact that during her refusal to return to Matrimonial home and upon calling her to return back the petitioner only threatened with proceedings under Section 498-A of the Indian Penal Code and threatened the Respondents entire family with dire consequences.AFFIDAVIT IN LIEU OF ORAL EVIDENCE OF THE RESPONDENT: On 5th Sept 2008, an affidavit has been filed by the Respondent stating that ,he is working at Imperial Academy and getting a salary of Rs14000/-per month( as shown in the income tax returns) and not Rs 15,00,000/,and that it is in correct that he is the chairman of Imperial academy at Indore or the owner of the Export House of cars in Dubai or has various other business. The Respondent states that the petitioner has brought with her some ornaments and articles for her personal use and was under her custody and was using as per her wish .The Petitioner took some of her ornaments and articles to Mumbai and some she left at Indore .

As per the consent terms the Respondent has agreed to return the list of articles to the petitioner, and there is no articles lying with the Respondent and his family members at Indore. In his affidavit he stated that the petitioner is working and earning sufficient for herself and the child , and he is willing to pay Rs 2000/-as maintenance for his daughter. CROSS-EXAMINATION BY THE RESPONDENT:In his cross-examination he has stated that:1)He has no idea as to what ornaments were given from his side to his wife.

)He has no idea as to what articles she has taken with her. 3)He can produce documents to show that he has obtained the house on rent. 4)He is an NRI and whenever he went to Dubai, he stayed at his friend’s house. 5) His mother is having custody of house at Dubai and he cannot produce the papers. 6)His mother is the owner of the Company which is mentioned 7)His father has prepared a will and he can produce the same. 8)In his income-tax return, income from business is shown but he is not doing any kind of business. 9) He has admitted that an amount of Rs.

7,591/-is shown towards expenses in the income-tax returns. AFFIDAVIT OF THE PETITIONER: An affidavit has been filed by the petitioner on 24th Sept 2008 stating that the on 27th August 2008, the cross examination which was conducted, by the Advocate of the Respondent the question was misunderstood and the evidence was wrongly recorded as. ”I am working in the call center since June 2007 and getting salary of Rs10,000/- per month. The learned Judge has also accepted the said version and has found that she was working at the call center in the past.

The fact is that she took up the job to feed her daughter and herself as she did not want to be a burden on her parents and thereafter on October, 2007 she left the job and now onwards have no source of income. CROSS–EXAMINATION OF THE PETITIONER: In the cross–examination she has denied that she is the partner in the business with her father. In the cross-examination she has reiterated her say that the husband is working in Imperial Academy at Indore. She has denied the suggestion that he was getting Rs. 20,000/-per month and that he is not doing any other job.In the cross-examination she denied the suggestion that the said bills are false and bogus. RECALLING WITNESS: On 24th Nov, 2008 the petitioner made an application to the court in recalling the petitioner’s father in the interest of justice in respect to the payments made for jewelries that have not been returned to the petitioner.

CROSS-EXAMINATION OF THE PETITIONERS FATHER: During the cross examination the advocate for the Respondent had alleged that the receipts are bogus, and therefore to prove the contention it is necessary to recall the father.The father was examined and in his examination- in-chief he has started that at the time of marriage , a reception card was printed in which various business has been mentioned. The witness has stated that a list of jewellery was shown to him.

On behalf of the petitioner another witness Rajinder Kapoor was examined in order to prove that the disputed jewellery was purchased from his shop and that he is doing jewellery business in the name of Daulat Ram & sons Karol Baugh,New Delhi .The said witness produced original bill receipt book . In his cross-examination he stated that he had prepared the jewellery after receiving cash in advance, and he has denied that he had prepared bogus bills. REPLY TO APPLICATION OF RECALLING WITNESS:The Respondent in his reply statement of recalling witness that after the evidence is completed on 6th Sept 2008 &cross examination by 15th Oct 2008&that on 15th Oct the petitioner has closed her witness.

The Respondent states that there is no provision in law to recall witness &the application made is not maintainable & only made with the intention to delay the matter & hence the application be dismissed. LIST OF DOCUMENTS BY THE RESPONDENT: As agreed by the Respondent during the cross examination he has produced before the court the following documents on 15th Dec 2008;1)Title deed of the flat in the name of the Respondent’s late father & mother. 2) List of articles of the petitioner returned on June 12, 2008.

)Original passbook of Bank of Baroda A/C No 050048243. 4)Will prepared by the defendant’s father. Decision: The order passed by the Family court in Petition No A-2441/2007 dated 17th February, 2009 by which the Family court dissolved the marriage by the decree of divorce by mutual consent and granted Rs 8,000 per month to the wife and Rs 4000/ per month to the daughter towards the maintenance from the date of petition and the claim of her stridhan was rejected by the learned trial Judge.Findings: After studying the facts of the case, and going through the evidence produced in the court and the cross-examinations of the witnesses the learned Judge of the Family Court has not considered: 1) The wife is entitled to have the same style of living at par with the live style of the husband while awarding maintenance of only Rs. 8000/-per month. 2) The amount of Rs30,000/-claimed was reasonable looking to the cost of living and the amount she has to spend towards the upbringing of the child and looking to the income of the husband. ) A part of the stridhan which has not been handed to the wife because the court has held that the evidence produced by the wife regarding stridhan is not believable and therefore rejected the claim.

4) The claim for providing separate residence is required to be considered along with the maintenance which has not been decided by the family court and the same has been rejected on the ground that the said prayer has not taken care in the consent terms. 5) An interim application under the Protection of Women from Domestic Violence Act, 2005 has been submitted during the pendency, the application has been rejected on the round that it is not tenable and it has become infructuous. Appeal; The Plaintiff filed a separate Family court appeal No 99/2009 against the rejection of her claim by the trial court regarding return of stridhan, claim for separate residence and maintenance at the rate of Rs. 30,000/ per month and the Respondent has also filed Family court appeal No91/2009 in the Hon’ble High Court. Both the appeals were taken up for hearing and since the issue about divorce is already concluded by consent of the parties before the Family Court.

The present appeal is required to consider whether the maintenance amount granted by the Family Court is required to be reduced or enhanced and also whether the wife is entitled to a separate residence and return of stridhan. In order to substantiate her case the learned counsel relied upon the decision of the Supreme Court in the case of Komalam Amma Vs Kumara Pillai Raghavan Pillai, AIR 2009 S. C. 636. read as ”Maintenance as we see it, necessarily must encompass a provision for residence.

Maintenance is given so that the lady can live in the manner. ore or less to which she was accustomed. The learned judge has negative the claim about separate residence on the ground that in the consent terms she has not specifically mentioned his claim. However since there is no satisfactory evidence the matter be remitted to the Family Court.

The Hon’ble Court before analyzing the evidence also went through the consent terms arrived at between the parties before the Family Court. The evidence of documents which was presented in the Family Court ,the same was presented in the High Court as there was no specific order to lead fresh evidence.The appeal was disposed of by the Hon’ble High Court and the order was passed by the Hon’ble Court on 25. 09. 2009 wherein 1)Appeal filed by the husband is dismissed 2)Maintenance was increased and it was granted to the petitioner at the rate of Rs.

25000/ per month, whereas to the minor child at the rate of Rs. 5000/- per month. 3) The husband shall return to the wife articles weighing 168 articles of gold.

4)The claim of the wife towards separate residence, the matter is remitted to the Family Court . APPEAL— An Appeal was filed in the Family Court against the order before the Hon’ble High Court, by the petitioner Mrs Rashmi. R.Luthra for the purpose of deciding claim towards separate residence.

Since there is no order of fresh evidence to be lead, the Court rely on the evidence already stated in the application dated 21s The petitioners argument was since she resided with her husband she enjoyed the life as per his status, and in such circumstances she is entitled for separate accommodation or that the respondent pay Rs. 15,000/- per month to her towards rent of leave and licence Order; The petition is allowed. The respondent shall pay Rs. 15,000/- per month to her towards rent for her accommodation or he shall arrange separate accommodation as per their status.The following questions were asked by me to the petitioners lawyer Questionnaire: 1) What kind of cases do you get in matrimonial matters ? 2) How do you ensure the women gets justice in matrimonial disputes? 3) What evidence do you look for in order that woman gets justice? 4) What incontrovertible evidence do you look for in favour of you client? 5) What strong arguments do the courts look for in the legal proceedings in matrimonial matters? 6) What all documents you were asked to produce in the court ? 7) Was your client able to produce all these documents? If not, Why? 8) Do you prepare your client before cross-examination ? ) Did your client face any difficulty during cross-examination? 10) Why did your client subsequently make an application for divorce by mutual consent? 11) Have you referred to any case law in your argument ? 12) Why did you go in for an appeal ? Where you not content with the judgement of the Family court? Why? 13) In your opinion what does the court look in giving justice to women? For the PETITIONER QUESTIONNAIRE 1What is your name? 2) When did you get married ? 3) Why did you apply for divorce? 4) Did your husband /in-laws mentally torture you in your matrimonial home.? 5 Did you or you husband try to reconcile? ) What evidence did you produce in the court? 7) Where you nervous at the time of cross-examination ? 8) Did you feel the cross-examination did not allow you to speak ? 9) Did the opposite party try to show that you are an unreliable character? 10) Did they ask question to show that you did not fulfill your responsibility as a wife? 11) Was there frivolous or false evidence shown as document ? 12) Why did you go for consent terms? 13) How far did the legal system help you to get justice? 14) What is your experience about the court ? 15) Was your lawyer over confident in ensuring justice for you?

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