JUDGMENT
C.L. Pangarkar, J.
1. Rule, heard finally with consent of parties.
These two applications can be conveniently decided together, since they arise out of same order passed by the Judge of the Family Court on an application under Section 125 of Criminal Procedure Code.
2. Application No. 294 of 2006 is filed by wife Anita for enhancement of the maintenance granted and also for an order that it should be granted from the date of application, while the husband has filed Application No. 31 of 2007 for reduction of the maintenance granted.
3. A few facts may be stated thus-Anita, the applicant, in Criminal Revision No. 294 of 2006 was married to non-applicant Anand on 28.8.1979. Soon after the marriage, the relations between them got strained. It resulted into filing of divorce petition which came to be decided in the year 1987 and decree for divorce was passed. Thereafter, An application No. 452 of 2001 came to be filed in the Family Court for grant of maintenance. The wife claims maintenance at the rate of Rs. 3,000 per month alleging that non-applicant’s monthly income is Rs. 10,000. It is her case that the N.A. has large property and agricultural land and his income is more than Rs. 10,000 per month.
4. The non-applicant resisted the application. He denied that his income is Rs. 10,000 per month. On the other hand, he contended that he has agricultural land from which he was getting less income and there is no other source of income. He owns only small piece of dry crop land.
5. The learned Judge of the Family Court, upon consideration of the evidence found that the applicant was entitled to maintenance at the rate of Rs. 2,500 per month from the date of order. Being aggrieved by that order, these two revision applications have been preferred.
6. I have heard the learned Counsel for the applicants and the non-applicants.
The scope of revision is very limited. The Court can only look into the propriety and legality of the order. Both the learned Counsel restricted their argument only with regard to the quantum of maintenance and the date of award of maintenance.
7. The wife has led evidence about the sale of the property etc. but has not given the exact source of income of the non-applicant except agricultural land. Sale of property cannot have nexus with the determination of question of maintenance. What is to be seen is regular source of income. It is observed by the learned Judge of the lower Court in para No. 12 of the judgment that the agricultural land to the extent of 41.50 Acres, the non-applicant is not the owner but the land is owned by the maternal uncle and aunts of the non-applicant. Obviously the land does not exclusively belong to the non-applicant but is owned by his maternal uncle and aunts. If it is a land owned by his maternal uncle and aunts, it can certainly be said that he has no interest in that land at all. It is stated by the non-applicant on oath that the said land is also sold and he does not get any income from it. There is no reason to dispute this fact.
8. T The best evidence available, therefore, was the income tax returns. Those income tax returns are filed on record. The learned Judge very strangely observed with regard to the returns that normally less income is shown in income tax returns. This is a wrong and unwarranted observation, unnecessarily attributing dishonesty to non-applicant. The assessment orders are the perfect proof of the income. For the year 2005-06 the income is shown to be Rs. 67,000. The other returns prior to 2005 show that the income was around Rs. 48,000 to Rs. 27,000. In any case average income was not more than Rs. 50,000 per annum. Considering this aspect, award of Rs. 2,500 per month is certainly excessive. Normally the maintenance should not exceed 1/3rd of the total income. Hence, it errs on hire side. To my mind, Rs. 2,000 per month would be the most appropriate sum, considering the average income during last five years, as can be seen from the income tax returns (Exhs. 69 to 72).
9. The learned Judge has awarded maintenance from the date of order. Section 125 of Criminal Procedure Code does say that it should be awarded from the date of order but while interpreting the provision, the Court has held in 1990 Mh. L.J. 108 that it should be from the date of application and in exceptional cases from the date of order. I concur with what has been observed in this ruling. The applicant is certainly entitled to maintenance from the date of order. Hence, the following order.
10. The Criminal Revision Application No. 294/2006 is partly allowed. The applicant is entitled to claim maintenance from the date of application but only to the extent of Rs. 2,000 per month.
The Criminal Revision Application No. 31 of 2007 is partly allowed. Instead of Rs. 2,500 the applicant do pay to the non-applicant Rs. 2,000 per month from the date of application.