Karnataka High Court
Rehana Fatima W/O Wajid Ahmed Anr vs Wajid Ahmed S/O Syed Amir Ahmed on 31 July, 2012
Author: Dilip B.Bhosale
Bench: Dilip B. Bhosale
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 31ST DAY OF JULY 2012
BEFORE
THE HON'BLE MR.JUSTICE DILIP B. BHOSALE
R.P.F.C.NO.577/2011 C/W RPFC NO.538/2012
RPFC NO.577/2011:
BETWEEN:
Wajid Ahmed S/o Syed Amir Ahmed
Age: 41 years, Occ: business,
R/o in the house of Munaf Police Constable,
Payan Chota Roza,
GULBARGA-585103.
... Petitioner
(By Sri Liyaqat Fareed Ustad, Adv.)
AND:
1. Rehana Fatima W/o Wajid Ahmed,
Age: 37 years, Occ: Household,
R/o Javid Miyan's house,
Rehamat Nagar, Old Jewargi Road,
Gulbarga-585102.
2. Shamama Butul D/o Wajid Ahmed,
Age: 12 years, minor, Occ: Student,
Under Guardian of her mother
Petitioner No.1. ... Respondents
(By Sri R.S.Sidhapurkar for R-1, Adv.)
2
RPFC NO.538/2012:
BETWEEN:
1. Rehana Fatima W/o Wajid Ahmed,
Age: 34 years, Occ: Household,
R/o Javid Miyan's House,
Rehamat Nagar, Old Jewargi Road,
Gulbarga-585102.
2. Shnamma Butul D/o Wajid Ahmed,
Age: 10 years, minor, Occ: Student,
Under Guardian of her mother
Petitioner No.1. ... Petitioners
(By Sri R.S.Sidhapurkar for R-1, Adv.)
AND:
Wajid Ahmed S/o Syed Amir Ahmed
Age: 41 years, Occ: business,
R/o in the house of Munaf Police Constable,
Payan Chota Roza,
GULBARGA-585103.
... Respondent
(By Sri Liyaqat Fareed Ustad, Adv.)
FPFC 577/2011 is filed U/S.19(4) of the FC Act, against the
judgment dated 5.8.11 passed in Crl.Misc. No.89/07 onn the file of
the District Judge, Family Court at Gulbarga partly allowing the
petition filed U/S.125 of Cr.P.C.
RPFC No.538/2012 filed U/S.19 (4) of FC Act, against the
Judgment dated 05.08.2011 passed in Crl.Misc. No.89/2007 on
the file of the Dist. Judge, Family Court at Gulbarga, wherein,
partly allowing the petition U/S.127 of Cr.P.C.
These petitions coming on for admission this day, the
Court made the following;
3
(ORAL ORDERS) DILIP B.BHOSALE J.
1. This revision petition is directed against the judgment and order dated 05.08.2011 passed by District Judge, Family Court, Gulbarga in Crl. Misc. No.89/2007 whereby an application filed by the respondent-wife, under section 127 of the Code of Criminal Procedure, has been allowed and the amount of maintenance awarded earlier has been enhanced.
2. By consent of learned counsels for the parties, the revision petition itself is taken up for final hearing/disposal at the stage of admission.
3. I have heard learned counsel for the parties and perused the entire material placed before the court.
4. By the impugned judgment, the family court has enhanced the maintenance amount of Rs.1,300/- to Rs.2,000/- awarded in favour of respondent No.1-wife and from Rs.1,000/- to Rs.1,500/- in favour of respondent No.2- 4 daughter. The amount of Rs.1,300/- and Rs.1,000/- in favour of the respondents was initially awarded in February 2005 in Crl. Misc. No.55/2005. In 2007 the application for seeking enhancement of the maintenance under section 127 of Cr.P.C. was filed contending that there was a considerable change in the income of the petitioner. It was contended by them that the petitioner has started the business of selling mobile phone instruments and getting income of Rs.25,000/- per month from the said business. Apart from that, it was further contended that the petitioner-husband is dealing in sale of second hand cars and getting income of Rs.10,000/- to Rs.15,000/- per month from the said business. In the circumstances, they prayed for enhancement of the maintenance amount to Rs.4,000/- together.
5. It appears that their enhancement application (Crl.Misc. No.89/2007) was disposed of vide judgment and order dated 31.12.2009 enhancing the maintenance from Rs.1,300/- to Rs.2,000/- for respondent No.1 and in favour of 5 respondent No.2 from Rs.1,000/- to Rs.1,500/-. That order was challenged before this court by way of revision bearing RPFC No.542/2010. This court disposed of the said revision vide order dated 18.03.2011, setting aside the order dated 31.12.2009 and remanded the matter to the Family Court allowing both the parties to lead further evidence. Accordingly, both the parties led further evidence, and the Family Court on the basis thereof enhanced the amount of maintenance as aforementioned for the reasons recorded in the impugned judgment, more particularly, in paragraphs-13, 14 and 15 thereof. Observations made in paragraphs No.13, 14 and 15 read thus;
" 13. So far, as the income of the respondent is concerned, this court has also given its finding in Crl. Misc. No.4/2003 as well as Crl.Misc. No.55/2005 that he is doing selling of mobile phones and earning money from it. The said finding has become final as the respondent has not challenged the same before competent court. As against the order passed by this court in Crl. Misc. No.4/2003 and Crl.Misc. No.55/2005, respondent has not preferred any revision or appeal before the Hon'ble High Court of Karnataka. Respondent allowed the said orders to attain finality. Therefore, at present the 6 respondent is estopped from contending that he is not doing mobile phone selling business and not earning money. It is not the case of the respondent that, earlier he was doing said business and after passing the orders in the said two Criminal Miscellaneous cases, he stopped his business. His defence in the present case is that he is not at all doing the said business. Therefore, on the basis of said business and inference can be drawn that, respondent is having sufficient means to provide separate maintenance to the petitioner by way of enhancement.
14. Besides the above said fact, respondent is serving as Darugah in Sri Khaja Bande Nawaz Dargah, Gulbarga. Respondent has produced the certificate issued by the Assistant Secretary, Sri Khaja Bande Nawaz Dargah, Gulbarga, dated 30/05/2011, it reveals that, respondent is serving as Darugah since March 1993 on a consolidated salary of Rs.5,200/- per month. The said certificate has been marked at Ex.D.1. The petitioners are still contending that, he is getting more salary than Rs.5,200/- p.m. In order to prove the genuinity of the said certificate, respondent could have produced some of the accounts of the said Dargah wherein he was serving, so as to show that, he is receiving only Rs.5,200/- per month from said Dargah. But respondent has not produced any accounts of the said Dargha or otherwise, he could have examined the Assistant Secretary of the said Dargah to prove the contents as well as the correctness of the said certificate Ex.D.1. But the respondent has not examined the said Assistant Secretary of the Dargah. Therefore, it cannot be said that, the respondent is only getting a sum of Rs.5,200/- per 7 month. The respondent may be getting more salary than what is mentioned in Ex.D-1 salary certificate. While examining the PW-1, respondent has put suggestion to the PW-1 i.e., petitioner No.1 stating that, earlier respondent was getting income of Rs.1,700/- per month and the same has been increased to Rs.2,300/- per month. The said suggestion has been denied by the PW-1. On perusal of the said suggestion, an inference can be drawn that, as on the date of cross-examination, i.e., 15/01/2009, the respondent was getting an income of Rs.2,300/- by serving as Darugah. But the suggestion put by the respondent to the PW-1 itself is directly contrary to the Ex.D.1 salary certificate. According to the salary certificate, respondent is getting consolidated salary of Rs.5,200/- per month, since March 1993. Therefore, under these circumstances, it can be very well said that, respondent is suppressing his real salary what he is getting from said Dargah by serving as Darugah. Hence, I am of the opinion that, respondent has got capacity to pay excess amount towards maintenance of the petitioners 1 and 2, than the amount of maintenance awarded in Crl.Misc. No.55/2005.
15. As on the date of passing of the order, petitioner No.2 was young and now the petitioner No.2 is school going girl, certainly she requires more money towards her education. Having regard to the status of the parties and income of the respondent, I am of the view that, the maintenance amount of Rs.1,300/- which is awarded in favour of petitioner No.1 as per the orders dated 29/7/2006 at Crl.Misc. No.55/2005 be enhanced to Rs.2,000/- per month and the maintenance amount of Rs.1,000/- which is 8 already receiving by the petitioner No.1 as per order in Crl.Misc. No.43/2003 to be enhanced to Rs.1,500/-, from the date of filing of the present petition, would be just and proper. Accordingly the above points No.1 and 2 are answered in the affirmative."
6. Having regard to the overall facts and circumstances of the case and considering inability of the mother and the daughter in proving the true and correct income of the appellant, I am not inclined to interfere with the impugned order. I am satisfied that the petitioner is suppressing his income. He is not bringing the true and correct income on record for the obvious reasons. It is unbelievable and unaccepted that a person who was having income to pay maintenance at the rate of Rs.2,300/- in 2005 is not in a position to pay Rs.3,500/- now and that he has no means to pay the said amount. He has placed salary certificate issued by Sri Khaja Banda Nawaz Dargah, Gulbarga showing his income of Rs.5,200/- per month from the said dargah. He has not placed any material on record regarding timing of his duties. It appears at the relevant time he was working there 9 as Manager. The learned counsel appearing for the appellant has fairly stated that after disposal of the Crl. Misc. application, he has been promoted and presently working as Asst. Secretary. He has not placed on record as to when he was promoted and what salary he is getting as Asst. Secretary. Keeping that all in view and for the reasons recorded in the impugned order, in my opinion, no case warranting interference by this court is made out by the petitioner. Hence, the petition is dismissed.
6. Learned counsel for the petitioners in RPFC No.538/2012 on instructions prays for withdrawal of the petition. Hence, the revision petition No.538/2012 is disposed of as withdrawn. Withdrawal of the petition shall not preclude them from approaching the concerned court for seeking further enhancement in future.
Sd/-
JUDGE NSP