When Child Is Sent For Higher Education Abroad, Concurrence Of Both Parents, Particularly One Who Is Paying For It Is Necessary: Bombay HC

Division bench of Justice Akil Kureshi and Justice SJ Kathawalla were hearing an application filed by one Sheetal Bhatija in her appeal against the family court order wherein the respondent husband was directed to pay both daughters maintenance of Rs.50,000 per month.

Case Background

The marriage between Sheetal and husband Deepak was dissolved by the family court by mutual consent under Section 13-B of the Hindu Marriage Act, 1955. However, the wife being aggrieved by the dismissal of her claim for maintenance, lumpsum alimony, residence and litigation expenses; insufficient maintenance with regard to her daughters, Shloka and Shrishti and her claim for reinstatement of her associate membership in Khar Gymkhana, filed the present family court appeal.

In her appeal, Sheetal had sought interim maintenance of Rs.50,000 per month for herself; further a sum of Rs.55,000 per month towards rent for herself and two daughters. She has also prayed for the reimbursement of a sum of Rs.1.20 crores to be made by the respondent-husband which she has spent for the higher education of her daughter in Australia. Yet another prayer for payment of a sum equivalent to 2100 Australian dollars per month for the educational expenses for the elder daughter Shristi for the remaining period. Along with this, a maintenance of Rs.1,00,000 per month for younger daughter Shloka and reimbursement of litigation cost of Rs.2,00,000.

Submissions

Advocates Abhijit Sarwate and Ajinkya Udane appeared on behalf of the applicant wife and Ashish Kamat along with Ramchandra Yadav for the respondent husband.

Applicant's counsel argued that the respondent husband has multiple sources of income, which he has systematically withheld from the family court as well as this Court. He was engaged in the businesses of money lending and financing. He also financed popular Hindi feature films in the past and has multiple immovable properties, lives life of comfort, Sarwate submitted.

Moreover, he submitted that when the husband and wife were together, they would travel abroad on vacations frequently and at times, they would also take the care taker with them abroad to take care of their young daughters, clearly revealing lavish life style and sufficient income.

As per the appeal, Sheetal sent her elder daughter Shrishti for studies to Australia by taking an education loan, mortgaging her flat situated at Paramount Towers. Shrishti joined graduate programme at Edith Cowan University, Australia in the year 2014. According to the applicant, the estimated total expenditure for the five-year course is Rs.1.20 crores.

On the other hand, Kamat argued that his client suffers from a heart ailment and is no longer in any active business. Barring two immovable properties, one of them which is occupied by him for his residence and another is on lease, he has no other immovable properties.

The applicant, on the other hand, continues to be involved in her business. Even otherwise, she earns income from house property. The fat owned by the two daughters also generates monthly lease rent closed to Rs.1.30 lakhs. Recently she has been engaged as a retainer by M/s. Laries Impex at a retainer fee of Rs.75,000 per month, Kamat told the Court.

Order

At the very outset the bench observed-

"Both sides have thus, tried to project rather bleak financial picture of their resources as against rosy picture of the opponent's. We would have to wade through the documents on record in order to come to just conclusion."

After determining the applicant's financial status and monthly income, the bench noted – "the husband undoubtedly had sizeable financial resources in the past, nevertheless there is no clear direct proof of his current income".

However, Court acknowledged that not too far back, the husband was engaged in multiple businesses, such as film financing and private financing. Finally, the bench said-

"Surely, such investments would not be wiped out overnight. Thus, we refuse to believe the entire version of the husband about his financial resources. At the same time, we do not find it appropriate to direct him to bear the entire educational expenses. This is so because

(i) the applicant has not been able to produce clear evidence of the current financial capacity of the husband

(ii) Concededly the decision to send the daughter for higher education abroad was taken out consultation of the husband, whatever the reason for non-consultation may be;

(iii) when a ward is being sent for higher education abroad at a relatively young age, which entails considerable expenditure, the concurrence of both the parents, particularly one who is expected to bear the expenditure thereof, would be necessary.

"The husband certainly would have a right to enquire about the university where the child is likely to be admitted, the course being pursued, the aptitude of the child in the particular branch of education etc., which would be relevant factors. The applicant cannot take a unilateral decision of such magnitude and simply send the bill for the expenditure to the father."

Therefore, looking at the resources of the husband and the fact that their daughter Shrishti was doing well in Australia, Court directed the husband to pay Rs.25 lakh to the applicant wife within four weeks.