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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
ig 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
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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
statute book by
to section 125 which was
Maharashtra Act No.21 of 1999.
brought on
The said
the
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
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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
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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.
ig 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
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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
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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
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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
department
Judge
had
has
searched
observed
his
that
business
central
premises.
excise
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.
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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
reflect on
plantations at Mahabaleshwar.
the financial and
All the aforesaid factors
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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