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Whether Husband can infer that Wife is earning but adducing evidence?

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO. 1572 OF 2015

Deepak Laxminarayan Verma
Age about 40 years
Occupation – unemployed
Indian Inhabitant henceforth reside during encampment – Dehriyava Post Sultanpur
Dist Lucknow, U.P.
presently staying during 249/D-45, Charkop, Kandivali (W) Mumbai 400 067 ..Petitioner

Vs.

1 The State of Maharashtra
through Govt. Pleader
High Court, Criminal appellate
Jurisdiction, Bombay

2 Mrs. Kiran Deepak Verma
(parental name) Miss Kiran K Pandey
Indian Inhabitant staying at
24/A, Banshi Nagar, W.E. Highway,
Kulupwadi highway Borivali (E)Mumbai 400 066 ..Respondents

WITH
CRIMINAL MISC APPLICATION NO.24 OF 2016
IN
CRIMINAL WRIT PETITION NO.1572 OF 2015

Mrs. Kiran Deepak Verma
(parental name) Miss Kiran K Pandey
Indian Inhabitant staying during 24/A, Banshi Nagar, W.E. Highway,Kulupwadi highway Borivali (E)Mumbai 400 066 ..Applicant

In a matter between

Deepak Laxminarayan Verma
Age about 40 years
Occupation – unemployed
Indian Inhabitant henceforth reside during encampment – Dehriyava Post Sultanpur Dist Lucknow, U.P.
presently staying during 249/D-45, Charkop, Kandivali (W) Mumbai 400 067 ..Petitioner

Vs.

1 The State of Maharashtra
through Govt. Pleader
High Court, Criminal appellate Jurisdiction, Bombay

2 Mrs. Kiran Deepak Verma
(parental name) Miss Kiran K Pandey
Indian Inhabitant staying during 24/A, Banshi Nagar, W.E. Highway, Kulupwadi highway Borivali (E) Mumbai 400 066 ..Respondents

Mr. S. I. Shelke for a Petitioner
Mr. Prakash Dhopatkar a/w Mr. S. S. Vhatkar for a Respondent No.2

CORAM : R. M. SAVANT, J.
DATE : 1st APRIL, 2016

ORAL JUDGMENT

1 Rule, carrying courtesy to a plea lifted done returnable forthwith and heard.

2 The Writ Jurisdiction of this Court is invoked opposite a sequence antiquated 10-3-2015 upheld by a Learned Judge of a Family Court No.4,Mumbai by that order, a focus Exhibit 4 filed by a Respondent No.2 herein for upkeep underneath Section 125 of a Criminal Procedure Code (CrPC), came to be partly authorised and a Petitioner who was a Respondent in a pronounced record was destined to compensate halt upkeep @ Rs.4000/- per month to a Petitioner mother from a date of a focus i.e. 9-7-2012 (wrongly mentioned as 9-7-2014 in a order).

3 The Petitioner and a Respondent No.2 got married on 11-2-2005. The Petitioner father had filed a Marriage Petition No.A-1935 of 2007 for divorce on a belligerent of cruelty. The pronounced Marriage Petition it seems has been discharged by a Family Court, Mumbai. The family between a Petitioner and a Respondent No.2 are disloyal on comment of that they are withdrawal separately. The Respondent No.2 herein i.e. mother filed a focus being No.E299 of 2012 underneath Section 125 of a CrPC for maintenance. The pronounced focus is founded on a fact that a Respondent No.2 yet a law connoisseur is posterior post connoisseur studies in law i.e. LLM and is a student. It was a box of a Respondent No.2 that she has no source of income and that she is some how progressing herself with a assistance of friends and good wishers. It was also a box of a Respondent No.2 that a Petitioner is user as a publisher and also has lot of ancestral properties.

The Respondent No.2 has claimed upkeep in a sum of Rs.25,000/- per month. In a pronounced focus for upkeep a Respondent No.2 filed an focus for halt upkeep that is numbered as Exhibit 4. The box of a Respondent No.2 was controverted by a Petitioner. It was a box of a Petitioner that a Respondent No.2 is an Advocate practicing in several courts in Mumbai and earning a good volume as veteran fees and therefore she is really good able of progressing herself. It was his box that a Respondent No.2 has her possess bureau during a residence mentioned in her minute conduct from where she is carrying out her authorised practice. It was serve a box of a Petitioner that before to she apropos an Advocate a Respondent No.2 was a journalist. The Petitioner had therefore sought a rejecting of a focus for halt maintenance. The pronounced focus for halt upkeep it seems was proceeded in a deficiency of a Petitioner herein and by usurpation a box of a Respondent No.2 a Learned Judge of a Family Court No.4 by her sequence antiquated 21-11-2013 postulated halt upkeep of Rs.25,000/- per month to a Respondent No.2. It seems that a Petitioner after a pronounced sequence antiquated 21-11-2013 was upheld practical for a environment aside on a belligerent that a same was upheld but conference a Petitioner and that a halt upkeep postulated was extreme and exorbitant. The pronounced focus filed by a Petitioner came to be authorised by a Trial Court i.e. a Learned Judge of a Family Court by sequence antiquated 10-9-2014. The focus filed by a Respondent No.2 Exhibit-4 in a pronounced upkeep Petition No.E-299 of 2012 came to be deserted and a sequence antiquated 21-11-2013 was called behind by a Trial Court. The user partial of a sequence antiquated 10-9-2014 is reproduced herein underneath for a consequence of prepared anxiety :

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“1) The Application stands rejected.
2) The sequence antiquated 21-11-2013 stands called behind in perspective of rejecting of this application.
3) Call behind a trouble aver if released earlier.”

The Respondent No.2 herein challenged a pronounced sequence antiquated 10-9-2014 upheld by a Learned Judge of a Family Court by filing Criminal Writ Petition No.4253 of 2014. A Learned Single Judge of this Court (R.G.Ketkar J.) by sequence antiquated 11-2-2015 upheld in a pronounced Writ Petition set aside a sequence antiquated 10-9-2014 and easy a Interim Application No.117 of 2012, Exhibit 4 to a record fo a Family justice for a denovo care of a same. It is pursuant to a pronounced sequence antiquated 11-2-2015 that a uninformed adjudication took place and has resulted in flitting of a impugned sequence antiquated 10-3-2015 by a Learned Judge of a Family Court whereby as indicated above a halt upkeep of Rs.4000 per month has been postulated to a Respondent No.2 herein i.e. Wife from date of a filing of a focus i.e. 9-2-2012 (wrongly mentioned as 9-7-2014 in a order). Prior to a pronounced sequence being passed, a parties were given an event to lead evidence. In a pronounced context it is compulsory to be remarkable that a Petitioner has not placed mmj 5 of 10 any element on record from that a income of a Respondent No.-2 mother can be seen. On a other palm a Respondent No.2 has placed on record a income of a Petitioner by approach of a matter right from a Assessment Year 2006-2007 to a Assessment Year 2012-2013, formed on a income taxation earnings that were constructed on interest of a Petitioner.

5 The Trial Court i.e. a Learned Judge of a Family Court Mumbai deliberate a pronounced focus for halt upkeep and as indicated above by a impugned sequence antiquated 10-3-2015 has partly authorised a pronounced focus to a border of extenuation halt upkeep @ Rs.4000/- per month to a Respondent No.2. The Learned Judge has adverted to a fact that yet a Respondent No.2 is an Advocate, no element has been placed on record by a Petitioner to come to any end as to a income of a Respondent No.2. The Trial Court has adverted to a income of a Petitioner as was sought to be asserted on interest of a Respondent No.2 and in support of that a matter has been placed on record by a Respondent No.2. The Trial Court resolved that given a Petitioner is a father of a Respondent No.2, he is underneath an requirement to yield a shortfall in a volume of upkeep to a mother and accordingly has partly authorised a pronounced focus Exhibit 4 by a impugned order.

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6 Heard a Learned Counsel for a parties.

8 The Learned Counsel appearing for a Petitioner Mr. Shelke would find to make submissions as regards a income of a Respondent No.2 formed on inferences to be drawn on a basement of contribution that are on record. The Learned Counsel would find to pull this courts courtesy to a fact that a Respondent No.2 is an Advocate practicing in a High Court, has bureau in Borivali that residence is mentioned in a minute heads and has been addressing notices to several bureaucratic authorities. The Learned Counsel also sought to pull this courts courtesy to a justification available that associated to a bullion ornaments that a Respondent No.2 was wearing on a day when she attended a Court. It was a acquiescence of a Learned Counsel that a Petitioner is a physically infirm chairman and therefore a halt upkeep bound during Rs.4000/- in further to a volume of Rs.1000/- bound underneath a Domestic Violence Act is excessive.

9 Per contra, Mr. Dhopatkar a Learned Counsel appearing for t he Respondent No.2 would support a impugned order. It was a acquiescence of a Learned Counsel that a volume awarded as halt upkeep is not such in honour of that a Petitioner can have a protest carrying courtesy to a income of a Petitioner right from a Assessment year 2006-2007. It was a acquiescence of a Learned Counsel that a Respondent No.2 is also a disabled chairman and therefore she needs support as and by approach of maintenance. It was a acquiescence of a Learned Counsel that a Petitioner has not placed on record any element to uncover that a Respondent No.2 has any income as an Advocate.

10 Having listened a Learned Counsel for a parties we have deliberate a opposition contentions. In a benefaction case, yet there are assertions and opposite assertions, a Petitioner father has not placed on record any element to prove a income of a Respondent No.2 as a practicing Advocate. This was compulsory to be placed in perspective of a fact that it is a box of a Petitioner father that a Respondent No.2 is able of earning for herself. It is compulsory to be remarkable that on a basement of contribution that are on record but there being any justification constructed in support of a pronounced facts, a matter can't be approached by a routine of sketch inferences. As indicated above it was a attempt of a Learned Counsel for a Petitioner to pursue this Court to pull a deduction from a contribution on record namely that a Petitioner is an Advocate practicing in a High Court and that she has an bureau in Borivali. The second set of contribution is that a Respondent No.2 was wearing some trinket when she was benefaction in Court on a date of hearing. we am fearful that by a routine of sketch inference, a income of a Respondent No.2 can't be presumed. It has come on record that yet a Respondent No.2 is an Advocate practicing in High Court and carrying bureau during Borivali that addressed is found on her minute head. The Respondent No.2 is endangered in prosecuting her possess personal case, even notices that are on a minute conduct of a Respondent No.2 if review uncover that it relates to her possess box and not those of her clients. It was therefore compulsory for a Petitioner to furnish reasoning element to prove a income of a Respondent No.2.

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The Trial Court in a deficiency of any such element by watching that it is a requirement of a Petitioner to yield for a shortfall, has bound a halt upkeep @ Rs.4000/- As indicated above on interest of a Respondent No.2 a matter of a income of a Petitioner right from a Assessment Year 2006-2007 has been placed on record. In so distant as a year 2013-2014 is concerned, his sum income is Rs.1,27,000/-. The Petitioner is privately benefaction in Court. Prima facie from his coming it looks like that he is pang from some earthy incapacity as he is pang from a form of spondylitis that has altered his speed while walking. However, it can't be mislaid steer of that a Petitioner is thankful to say his mother compartment such time as they are legally separated.

11 In my view, however, a volume of Rs.4000/- postulated per month carrying courtesy to a income that is disclosed in a matter that is annexed to a above Petition during page 257, that is partial of a confirmation in respond antiquated 21-3-2016 filed on interest of a Respondent No.2, as also carrying courtesy to a fact that a Respondent No.2 has already been awarded Rs.1000/- underneath a Domestic Violence Act, it would be only and correct to mmj 9 of 10 revoke a upkeep postulated by a Family Court @ Rs.4000/- per month to Rs.3000/- per month. However, a same would work prospectively i.e. from Apr 2016. It is simplified that compartment Mar 2016, a Petitioner would be probable to compensate during Rs.4000/- per month. The Petition is authorised to a aforesaid extent. Rule is accordingly done comprehensive with parties to bear their particular costs of a Petition.

12 In perspective of a ordering of a above Writ Petition, it is not compulsory to cruise a service prayed for in a above Criminal Misc Application No.24 of 2016 as it would be open for a Respondent No.2 to record an suitable focus in honour of a reliefs claimed therein before a Family Court. The above Criminal Misc Application is accordingly likely of.

[R.M.SAVANT, J]

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