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Judgments of Supreme Court of India and High Courts

Vikas S/O. Omprakash Kejriwal vs Archana W/O. Vikas Kejriwal on 16 August, 2019

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.

WRIT PETITION 404 OF 2018
WITH
CRIMINAL WRIT PETITION 930 OF 2018

WRIT PETITION 404 OF 2018

Vikas s/o. Omprakash Kejriwal,
aged about 38 yrs, Occ. Medical Practitioner,
Balaji Hospital, Pachora,
Tq. Pachora, Dist. Jalgaon …. PETITIONER

VERSUS

Archana w/o. Vikas Kejriwal,
aged about 35 yrs, Occ. Medical Practitioner,
r/o.C/o.Shriramji Nangaliya,
r/o. Bachhraj Plot, Amravati,
Tq. Dist. Amravati …. RESPONDENT

CRIMINAL WRIT PETITION 930 OF 2018

1 Vikas s/o Omprakash Kejriwal,
aged about 36 yrs, Occ. Doctor,

2 Omprakash s/o. Sawalram Kejriwal,
aged about 62 yrs, occ. Retired Servant

3 Sau Ushadevi w/o. Omprakash Kejriwal,
ageda bout 50 yrs, occ. Business

4 Vinay s/o. Omprakash Kejriwal,
aged about 40 yrs, occ. Business

5 Sau. Urmila w/o. Vinay Kejriwal,
ageda bout 38 yrs, Occ. Household

all r/o. Balaji Hospital,

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Pachora, Tq. Pachora, Dist.Jalgaon
(P.S. Pachora) …PETITIONERS

VERSUS

1 Archana w/o. Vikas Kejriwal,
aged about 33 yrs, Occ. Household,

2 Mst. Radhesh s/o. Vikas Kejriwal,
aged about 7 yrs, Occ. Education
through its guardian respondent 1

both r/o. C/o.Shriramji Nangaliya
Beccharaj Plot, Near Bye-pass,
Amravati, Tq. Dist. Amravati. …RESPONDENTS
__
Shri Tejas Deshpande, counsel for petitioners.
Shri Poras Kotwal, counsel for respondents.
__
CORAM : ROHIT B. DEO, J.

DATED : 16th AUGUST, 2019

ORAL JUDGMENT :

These petitions are heard together and decided by this

common judgment since the factual issues are intrinsically inter-wined.

2 Writ Petition 404/2018 questions the order dated

23.6.2016 rendered by the learned Judge, Family Court, Amravati

under Sectionsection 24 of the Hindu Marriage Act, 1955 (HM Act) awarding

maintenance of Rs. 40,000/- per month to the respondent – wife and

the order dated 13.12.2017 whereby the learned Judge, Family Court,

Amravati declined to review the order dated 23.6.2016.

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3 Criminal Writ Petition 930 of 2018 assails the order dated

26.5.2018 rendered by the Judicial Magistrate First Class, Amravati in

Miscellaneous Criminal Application (D.V. Case) 159 of 2015 whereby

the learned Magistrate granted interim maintenance of Rs. 20,000/- per

month to the respondent – wife and the confirmatory judgment dated

7.8.2018 in Criminal Appeal 116 of 2017 rendered by the Additional

Sessions Judge – 3, Amravati.

4 The averments in Writ Petition 404 of 2018 to the extent

they are relevant, may be noted.

i) The petitioner (who shall be referred to as “the husband”

hereinafter) contends that he and the respondent (who shall be

referred to as “the wife” hereinafter) married on 27.2.2009 and

are blessed with a son Radhesh who was born on 31.3.2010.

ii) The husband states that he holds the qualification M.B.B.S,

M.D. and the wife holds a masters degree in

neuro-physiotherapy.

iii) The husband contends that the couple established a small

nursing home “Balaji Hospital” in rented premises at Pachora

which is a small town situated in the district of Jalgaon.

iv) The husband contends that since advanced medical

facilities are not available at Pachora, he is treating the patients

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by charging nominal fees. The husband is an income tax payee

and the annual income in the preceding three years is

Rs. 4,63,270/- for the year 2015-16, Rs. 4,65,852/- for the year

2016-17 and Rs. 3,01,835/- for the year 2017-18.

v) The husband contends that the wife deserted his company

on 11.5.2014. The husband lodged a missing report at Police

Station, Pachora on 11.5.2014 and the police recorded the

statement of the wife who stated that she had left the company of

the husband and shifted to her maternal home.

v) The husband contends that he tried to convince his wife to

resume matrimonial cohabitation, but in vain. Au contraire, the

wife filed a petition for divorce on 12.8.2015 (Petition A-

186/2015) before the Family Court, Amravati alleging cruelty.

vi) The husband filed written statement Exh. 17 dated

21.3.2016 denying every material averment in the divorce

petition.

vii) The wife preferred an application Exh.5 dated 12.8.2015

under section 24 of the HM Act for interim maintenance. The

wife alleged that she did not have any source of income and that

the monthly income of the husband was Rs. 5 lacs.

viii) The Judge, Family Court, vide order dated 23.6.2016

directed the husband to pay monthly interim maintenance of

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Rs. 40,000/- to the wife w.e.f. the date of the application and

additionally directed the husband to pay Rs. 25,000/- to the wife

as litigation expenses.

ix) The husband preferred application Exh. 27 invoking the

provisions of Sectionsection 114 read with Order 47 Rule 1 of the Civil

Procedure Code seeking review of the said order. This

application came to be rejected by the Judge, Family Court vide

order dated 13.12.2017.

5 In Writ Petition 404 of 2018, the thrust of the submission

of Shri Tejas Deshpande, the learned counsel for the husband is that the

learned Judge of the Family Court failed to appreciate that the wife is a

highly qualified and experienced physiotherapist and that the monthly

maintenance of Rs. 40,000/- is exorbitant. Shri Tejas Deshpande

contended that the learned Judge of the Family Court did not

appreciate the income tax returns placed on record. Shri Tejas

Deshpande would further submit that the wife was an income tax payee

and the income tax returns for the assessment year 2009-10 records her

income as Rs. 1,67,768/-. Shri Tejas Deshpande, the learned counsel

would submit that after leaving the company of the husband, the wife is

practicing and is an income tax payee. The husband submitted an

application in the office of the income tax officer, Ward 1 under the

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provisions of the Right to SectionInformation Act seeking information of the

income tax returns filed by the wife. However, since the wife objected,

the information was not disclosed to the husband. Shri Tejas

Deshpande would submit that the wife is granted interim maintenance

of Rs. 20,000/- per month in proceedings under Protection of Woman

from SectionDomestic Violence Act (D.V. Act). Shri Tejas Deshpande would

submit that the statutory provisions which sub-serve the laudable object

of ensuring that the wife is not driven to destitution are clearly misused

and the total interim maintenance in the two proceedings i.e.

Rs. 60,000/- per month is a bounty and not a measure to provide

succor and solace to the wife.

6 The wife has filed written submissions dated 14.2.2019.

Several allegations are incorporated accusing the husband and his

family members of cruelty and dowry demand. It is stated that the wife

was compelled to leave the matrimonial home since she perceived

threat to the life and limb of her son and to her personally. The wife

contends that the fact that she is capable of earning is not sufficient to

reduce the maintenance in the absence of proof of actual income.

7 At this stage, the reasons recorded by the learned Judge,

Family Court, Amravati to grant maintenance pendente lite of

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Rs. 40,000/- per month from the date of the application, may be

scrutinized.

It appears that when the learned Judge rendered the order dated

23.6.2016, she did not have the benefit of perusing the income tax

returns of the husband. The learned Judge observes that while the wife

has not placed on record any documentary evidence to show the exact

income of the husband, she must have been aware of the financial

status of her husband since the couple was working together. The

learned Judge deals with the submission that the wife was in a position

to earn, and actually earns, thus:

“7. Dr. Vikas has filed several documents pertaining to Dr.
Archana viz certificate of completion of course of seminars and
workshops for obtaining special skills of physiotherapy,
photographs of establishment of Dr. Vikas and Dr. Archana
and photographs of equipments of various machines of
physiotherapy and OPD register to show that Dr. Archana is
having sufficient means to maintain herself and child. I find,
whatever documents are placed on record are related to place
Pachora, District Jalgaon pertaining to source of income Dr.
Archana during her coverture with Dr. Vikas. But there is
nothing on record to show that at her maternal house at
Amravati Dr. Archana is in practice of physiotherapy and has
sufficient source of income and earning for her livelihood with
child. Undoubtedly, Dr. Archana has no hospital at Amravati.
She does not possess any equipment i.e. IFT, A1 Sound

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Diathermy, traction unit, CPM, Muscle Stimulator, Nerves
Stimulator, Was Bath machine etc. for professing her
profession of physiotherapist.

Since May 2014 Dr. Archana is residing at her maternal
home along with child Radhesh aged about 6 years. Under
such circumstances survival at parental home along with child
aged about 6 years with agony of desertion it can not be
expected that Dr. Archana would earn significantly for her
support with equal standard of Dr. Vikas. Without facilities it
is not expected that physiotherapy clinic can be run. Thus
being legally wedded wife of Dr. Vikas, living in desertion
having no sufficient source of income for own support to get
maintained with equal standard of Dr. Vikas, I find, Dr.
Archana is entitled for maintenance pendent lite for her
livelihood along with child Radhesh.”

“8. To calculate exact income of Dr. Vikas no material is
available on record. Various documents of qualification and
certificates are placed on record by Dr. Vikas titled as “OPD
Patient” list of Dr. Archana” to high light flow of patients and
earnings of Dr. Archana. It is contention of Dr. Vikas that Dr.
Archana can earn Rs. 1,50,000/- per month and can maintain
herself.

It is significant that Dr. Vikas is well qualified than that
of Dr. Archana as he holds degree of M.B.B.S., M.D. and in
profession at same place. On comparison of qualification and
experience of Dr. Vikas who is running well equipped hospital,
version of Dr. Archana regarding income of Dr. Vikas is most
believable. Dr. Vikas has no other responsibility to shoulder. I

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find Dr. Archana is entitled for maintenance of Rs. 40,000/-
per moth pendent lite for her support”.

It is revealed from record that alongwith the review application,

the husband placed on record income tax returns. The reasons

recorded by the learned Judge for declining to consider the documents

placed on record in support of the review application are thus:

“4. Heard learned advocates for both the parties and also
perused the documents filed on record by the respondent-
husband along with present application along with list Exh. 28
and even at the time of argument of this application suddenly
the respondent filed some more documents along with list
Exh.40. Before dealing in with the application in hand it is
necessary to see under which provision of law this application
is filed. The present application is filed u/s 114 or O. XLVII
R.1 of C.P.C. Order XLVII R.1 of C.P.C. clearly states that
review application can be entertained only if the applicant
satisfies the court that there is discovery of some new and
important matter or evidence which after exercise of due
diligence was not in his knowledge or could not be produced by
him at the time when the order was passed. Secondly, if there
is some mistake or error apparent on the face of the record,
this review application can be filed or for any other sufficient
reason also the court can entertain review application. In the
present application in hand the respondent has tried to bring
some documents on record along with list Exh.28 Exh. 40.
Prior to it when the hearing on Exh.5 was heard, at that time

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the respondent relied on bunch of documents filed along with
list Exh.23. While passing order below Exh.5 it is found that
the court has taken into consideration all the documents filed
by the concerned parties on record. It is important to note that
when the application u/s 24 of SectionHindu Marriage Act, 1955 is
heard, at that time prima facie evidence only needs to be seen.
Court does not enter into the merits of the case at this stage.
Prima facie evidence means the evidence which is as it is filed
on record. So naturally the documents which were filed on
record along with list Exh.23 by the respondent are taken into
consideration by the court and even the educational
qualification of both the parties, their capacity of earning has
been taken into consideration. It is clearly held that the
documents filed by the respondent were of the period when the
parties were cohabiting together and admittedly the petitioner
was practicing along with her husband i.e. the respondent. So
on perusal of order below Exh.5 it is seen that on merit court
has decided the said application and no error on the face of it
is seen.

5. So far as filing of documents is concerned the party
filing application for review has to satisfy the court that the
documents which are filed now were not available with him
when the order below Exh.5 was passed. Here it is seen that
the documents which are filed now by the respondent are not
new, they are of the year 2012, 2013, 2014, 2015 and 2016.
The parties are residing separately from 2015 and the petition
is filed on 12-08-2015. The order below Exh.5 is passed on

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23-06-2016 i.e. till date there was opportunity for the
respondent to file whatever documents were available with
him. Now suddenly he cannot file old documents. Moreover,
there is no pleading as to why these documents were not filed
at the relevant time. Even the documents filed along with list
Exh.40 are old one. Only some mutual fund or fixed deposit
receipts are of the year 2017, other all documents are old one.”

8 In so far as Criminal Writ Petition 930 of 2018 is

concerned, the order of interim maintenance is granted under the

provisions of SectionD.V. Act and the reasons recorded by the learned

Magistrate are summed up in paragraph 13 and 14 of the order dated

26.5.2017.

“13. In view of Section 20(d) of the Domestic Violence Act the
court can grant maintenance to the aggrieved person as well as
to her children including an order under or in addition to the
order of maintenance under Section 125 of the Cr.P.C. In this
case, the Hon’ble Family Court has granted interim
maintenance of Rs. 40,000/- per month. In view of the above
provision this court can grant maintenance in addition to this
amount. The exact amount of income of non-applicant 1
earning per month is not on record at this stage. It is seen that
non-applicant no. 1 is holding degree of M.B.B.S., M.D.. On
comparison of educational qualification of non-applicant no.1
with applicant no.1 and his practice since the year 2011, it
can be gathered that he can earn more than applicant no.1.

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Considering the needs of applicant no.1 and 2 alongwith the
amount of interim maintenance granted by the Hon’ble Family
Court, I am of the view that applicant no.1 is entitled to
interim maintenance in this case for livelihood for herself and
applicant no. 2. There is nothing on record which will show
that the applicants are residing at any rented premises. It is
submitted that they are living at the material house of
applicant no.1: So, I do not think it to be just and proper to
grant rent amount at this stage. Hence, I answer point 3
accordingly.”

AS TO POINT NO. 4:

14. Considering the above discussion and the interim
maintenance granted by the Hon’ble Family Court, Amravati, I
come to the conclusion that it will be proper to grant Rs.
20,000/- towards the maintenance of applicant no.1 and 2
collectively per month. Hence, I pass the following order in
answer to point no.4:

(1) The application is partly allowed.
(2) Non-applicant No. 1 is directed to pay Rs. 20,000/- per

month towards interim maintenance of applicant no.1 and no.
2 collectively from the date of application till disposal of this
case.

(3) The copy be supplied to the parties and Police Station City
Kotwali, Amravati, free of cost”.

In fairness to the learned counsel for the husband, it is not even

argued that the wife is not entitled to reasonable maintenance.

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Shri Poras Kotwal, the learned counsel for the wife relies on the

decision of the Hon’ble Apex Court in Shailja and Anr .vs.

Khobbanna, AIR 2017 SC 1174 to buttress the submission that unless

it is shown that the wife is actually earning, maintenance cannot be

refused or reduced on the premise that she is highly qualified and

therefore capable of earning. Shri Poras Kotwal would then submit,

relying on the decision of this Court in SectionVinod Dulerai Mehta vs. Kanak

Vinod Mehta, AIR 1990 BOMBAY 120 that income tax returns do not

reflect the correct income and cannot be taken as the sole guide for

determining the income. Several other decisions are pressed in service

in support of the submission that maintenance can be granted in two

separate proceedings under separate statutes.

I do not find it necessary to consider in detail the enunciation of

law in the decisions pressed in service by learned counsel Shri Poras

Kotwal. The law is well settled, and the learned counsel for the

husband Shri Tejas Teshpande has not even argued that in view of the

interim maintenance granted in the H.M. Act proceedings, the learned

Magistrate could not have granted maintenance under the SectionD.V. Act.

The only rider is that the maintenance granted by the earlier order must

be factored in while awarding the maintenance by the later order.

9 Shri Poras Kotwal, the learned counsel for the wife

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vehemently submits that the income tax returns of the husband be kept

out of consideration. I am afraid, I do not agree. It is true that there is

a propensity not to disclose the actual income. It is equally true that

the income tax returns are not decisive of the income. However, in

view of the fact that the income tax returns were not placed on record

at the earliest opportunity, and were placed on record only alongwith

the review application, the significance thereof and the weightage to be

given thereto wold be an issue. However, judicial notice can be taken

that Pachora is indeed a small town and the monthly income of a

medical practitioner, even that of a specialist, would not be comparable

to the professional earnings in a large town or city. The averment that

the wife objected to the disclosure of her income tax returns under the

Right to SectionInformation Act is significant in the context of her stand that

there is no proof of actual income. In the affidavit in reply dated

14.2.2019, there is a guarded statement by the wife that merely

because she is capable of earning, the maintenance cannot be reduced

in the absence of proof of actual income. I can not but note that in the

entire affidavit the wife has not categorically stated that as of fact she is

not earning.

I am satisfied that the interim maintenance granted to the wife is

disproportionate.

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10 In the light of the discussion supra, the order dated

23.6.2016 (below Exh. 5) in Petition A-186/2015 rendered by the

learned Judge, Family Court, Amravati and the order dated 13.12.2017

whereby the learned Judge, Family Court, Amravati declining to review

the order dated 23.6.2016 are set aside and it is directed that the

husband shall pay monthly interim maintenance of Rs. 25,000/- to the

wife with effect from the date of the application. The husband shall

additionally pay to the wife Rs.25,000/- as litigation expenses. Further

the order dated 26.5.2018 rendered by the Judicial Magistrate First

Class, Amravati in Miscellaneous Criminal Application (D.V. Case) 159

of 2015 and the confirmatory judgment dated 7.8.2018 in Criminal

Appeal 116 of 2017 rendered by the Additional Sessions Judge - 3,

Amravati are set aside and it is directed that the husband shall pay

interim maintenance of Rs. 10,000/- per month to the wife.

11 These petitions are disposed of in the aforestated terms.

JUDGE

RSB

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