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Mr.Parvez Saghir Ahmed Ansari-vs-Mrs.Sana Parvez Ansari & Ors on 15 July, 2009

Bombay High Court Mr.Parvez Saghir Ahmed Ansari-vs-Mrs.Sana Parvez Ansari & Ors on 15 July, 2009
Bench: A.S. Oka

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL REVISION APPLICATION NO. 513 OF 2008 Mr.Parvez Saghir Ahmed Ansari .. Applicant vs

1. Mrs.Sana Parvez Ansari & ors … Respondents ..

Mr.Kunal Bhange for Applicant

Ms.Pooja Jalan for Respondent nos. 1 to 3

Mr.Y.M.Nakhawa APP for State

CORAM: A.S.OKA, J

DATED : 15th July, 2009

JUDGMENT

1. The submissions of the learned counsel appearing for the parties were heard on the last date. By this Revision Application the applicant-husband has taken an exception to the judgment and order dated 30th June 2008 passed by the learned Judge of the Family Court on a petition under section 125 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the said Code,of 1973) filed by the 1st to 3rd respondents. The marriage between the applicant and the 1st respondent was solemnised on 14th November 1997. It appears that they resided together till 28th December 2004. The 2nd and the 3rd respondent are daughters born from the wedlock. By the impugned order, the learned Judge of the Family Court directed the applicant to pay maintainance at the rate of Rs.5000/- to the 1st respondent-wife and maintainance at the rate of Rs.10,000/- per month each to the 2nd and 3rd respondents. Thus, the applicant was – 2 –

directed to pay total monthly maintainance amount of Rs. 25,000/- to the 1st respondent, 2nd and 3rd respondents with effect from 13th June 2006 which is the date of the filing of the said application under section 125 of the said Code.

2. Various contentions have been raised by the learned counsel appearing for the applicant. The first contention raised by the learned counsel is based on the Maharashtra Amendment to section 125 which was brought on the statute book by Maharashtra Act No.21 of 1999. The said amendment came into force with effect from 20th April 1999. Prior to the said amendment, in the sub section 1 of section 125 of the said Code of 1973, there was a upper ceiling of Rs.500/- per month on maintainance amount. By the Maharashtra Act No. 21 of 1999, the ceiling of Rs.500/- was enhanced to Rs.1500/- per month. Thereafter, by the Central Act being Act No. 50 of 2001, section 125 was amended and the upper ceiling of was altogethe removed. The said Central act was brought into force with effect from 30th September 2001. The effect of the Central Act, is that there is no ceiling on the amount which could be granted in terms of sub-section 1 of section 125 of the said Code of 1973. The submission of the learned counsel for the applicant was that the said Code of 1973 is an enactment on the concurrent list. He submitted that the Maharashtra Amendment was not – 3 –

repugnant to Central Act No.50 of 2001 and in any event, the Maharashtra Amendment of 1999 has not been repealed by the Central Amendment and therefore Courts in Maharashtra will be governed by the Maharashtra Amendment made by the Maharashtra Act No. 21 of 1999 and not by the Central Amendment.

3. It must be stated here that in Criminal Revision Application NO.400 of 2008 the same issue arose before this Court and it has been held by this Court by order dated 2nd July 2009 that with effect from 24th September 2001 the Central Amendment made by Act No.50 of 2001 will prevail. For reasons recorded in the said judgment and order, the aforesaid first contention cannot be accepted.

4. The learned counsel appearing for the applicant has also argued on merits. He pointed that there was absolutely no evidence adduced by the 1st respondent to substantiate her claim for maintainance of Rs.25,000/- per month. He invited my attention to the various defences raised by the applicant. He submitted that the finding recorded by the learned Judge of the Family Court that the applicant has refused and neglected to maintain the 1st respondent and the two minor daughters is completely erroneous. He pointed out that at the instance of the 1st respondent the applicant was prosecuted for an offence under section 498A of IPC and – 4 –

he has been exonerated. He submitted that the allegations made by the 1st respondent-wife of commission of an offence under section 498A of the Indian penal code could not be substantiated and therefore, the 1st respondent-wife cannot contend that due to acts of cruelty on the part of the applicant she is residing away from the applicant.

5. He invited my attention to the income tax returns filed on record. He pointed out that for the Assessment year 2005-2006 the income of the applicant is not more than Rs.1,48,000/-. He pointed out that for the Assessment year 2006-2007 the income is even lesser than that. He invited my attention to the findings recorded by the learned Judge of the Family Court. He pointed out that the bakery business at Kurla is not the business of the applicant. He pointed out that there is no evidence adduced on record to show that the land at Mahabaleshwar was sold by the applicant and that there was a strawberry plantation on the said land. He pointed out that the 1st respondent has not adduced any evidence to show that any particular amount was received by the applicant from the said land by way of sale price. He pointed out that the flats referred to in the impugned judgment are not owned by the applicant. He submitted that by no stretch of imagination the maintanance at the rate Rs.25,000/- per month can be justified as there not even a finding – 5 –

recorded that the monthly income of the applicant is Rs. 25,000/-. He invited my attention to the notes of evidence and submitted that the impugned order deserves to be quashed and set aside. The learned counsel appearing for the 1st respondent supported the impugned judgment and order.

6. I have given careful consideration to the submissions. It must be noted here that the remedy under section 125 of the said Code of 1973 is a summary remedy. The order passed under section 125 of the said Code of 1973 is not final in the sense that the same can be varied by taking recourse to the provisions of section 127 of the said Code of 1973.

7. It will be necessary to refer to the evidence of the 1st respondent-wife as to the income of the applicant. She came out with the case that the applicant was the owner of two bakeries. She stated that he is the owner of a strawberry farm at Mahabaleshwar and that he owns buildings at Panvel and Karjat. She came out with the case that he is the owner of two vehicles viz; a Scorpio and Honda city. According to her the income of the applicant from om all sources is approximately is Rs. 4,00,000/-. She was cross-examined by the advocate for the applicant. In the cross-examination she admitted that she has not produced any balance sheet to show that the – 6 –

applicant is owner of two bakeries. She stated that she has not produced documentary evidence to show that the applicant is the owner of a strawberry farm at Mahabaleshwar. In short, questions were put to the 1st respondent-wife to the effect that she was not possessing any documentary evidence to substantiate her case regarding the income of the applicant.

8. The applicant adduced evidence in the form of an affidavit in lieu of examination-in-chief. He stated that the land in Panvel was standing in the name of his mother. He stated that he was conducting a bakery business in partnership and he was earning income of Rs. 1,00,000/- per year. He stated that he is required to spend some amount for himself and for his sick mother and his net income, therefore, is Rs.50,000/- to Rs.60,000/- per year.

9. It will be necessary to refer to his cross examination. He stated that he was residing in a flat A-1 at G.C.Apartments, Kalina, Santacruz along with his mother and divorced sister. He stated that the flat has been purchased by his father. He admitted the letter dated 7th November, 2007 written by him to the society and stated that the flat has not been transferred in his name.

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10. In cross-examination, he admitted that in the year 2001 and 2002 he has taken LIC policies in the amounts of Rs.5,00,000/- each. He stated that he has not produced documents regarding cancellation of the policies. He was shown the 7/12 extract dated 1st March 2007 of the landed property at Mahabaleshwar. He admitted the 7/12 Extract and stated that the land has been sold one year back but, he has not produced documents of sale. He denied the correctness of the suggestion that there was a strawberry plantation on the said land. His attention was invited to the property extracts of the property in Dhampur, Uttar Pradesh. He stated that he was not aware about the said property. He stated that his father has purchased the land at Panvel which was sold by him thereafter. In the cross-examination he admitted that his father started construction business in the name Sunshine Developers which was having office at Kurla and Karjat. When a suggestion was given to him that he was having account with the Development Credit Bank at Kurla, he stated that he was unable to remember the same and stated that he was having a bank account with Bharat Cooperative Bank at Kalina.

11. In the light of this evidence, now it will be necessary to refer to the findings recorded by the learned Judge of the Family Court. The learned Judge has noted that the 7/12 extract of the land at Parut, Taluka – 8 –

Mahabaleshwar shows that the applicant was holding 5 and 1/2 acres of landed property on which strawberry plantations have been made. The learned Judge noted that the applicant himself came out with the case that one year back the property was sold. However, the applicant did not disclose the price. Thus, what is established on evidence is that the 7/12 extract shows that the applicant was holding a land admeasuirng about 5 1/2 acres near Mahabaleshwar having strawberry plantations. The learned Judge has observed that central excise department had searched his business premises. The learned Judge noted that the documents show that the net sales were ranging from Rs.1.60 crores to Rs.2.60 crores from the year 2001-2002 to 2003-2004. The learned Judge has referred to the admission of the applicant that he has deposited a sum of Rs.13,00,000/- towards excise duty. The learned Judge on perusal of the record has recorded a finding that the flat at G.C.Apartment, C.S.T.Road, Kalina was standing in the name of the applicant. The learned Judge has referred to the documents at Exhibit 70 which show that the applicant was admitted as a partner in Sunshine Developers in 1996. The applicant admitted that the said firm had a project of development on a land admeasuring 21 gunthas. The learned Judge has observed that the applicant has been paying premium to LIC of Rs.40,000/- per year. The applicant is admittedly a partner of M/s Jamal Bakery. – 9 –

The income tax returns placed on record relate only to the income of the applicant as a partner of the said bakery.

12. All these findings which are based on documentary evidence have to be appreciated in the light of the fact that the applicant has not clearly come out with his exact income. He has not even disclosed the amount of income received by him from the land having strawberry plantations at Mahabaleshwar. All the aforesaid factors reflect on the financial and social status of the applicant. Considering these factual aspects reflected from the documentary evidence, a total maintainance of Rs.25,000/- per month has been fixed by the Family Court. In revisional jurisdiction it is impossible to find fault with the said amount fixed by the Family Court.

13. Reliance was placed on the fact that the applicant was exonerated from the prosecution under section 498-A of the Indian penal code. It must be noted here that the applicant has come out with the case that he had given talaq to the 1st respondent. However, the said aspect could not be established on evidence. That is the finding of the Family Court which has not been challenged. There is no evidence brought on record to show that the applicant is paying any amount to his wife and children towards maintainance.

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14. In the circumstances, the learned Judge was justified in recording a finding that the applicant has refused and neglected to maintain the 1st respondent- wife.

15. No case is made out to interfere with the impugned order in revisional jurisdiction. Revision Application is accordingly rejected. The amount deposited by the applicant in this Court in the sum of Rs.62,500/- shall be transferred to the Family Court, Bombay.

On a prayer made by advocate for the applicant interim relief granted by this Court will continue to operate for a period of eight weeks. It is clarified that the applicant will continue to pay maintainance of Rs. 12,500/- per month for the said period.

A.S.Oka, J

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