Bombay High Court
Vikas S/O. Omprakash Kejriwal vs Archana W/O. Vikas Kejriwal on 16 August, 2019
Author: Rohit B. Deo
Bench: Rohit B. Deo
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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 section 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. ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 21:48:16 :::
3 wp404of18withcrwp930of18 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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 21:48:16 ::: 4 wp404of18withcrwp930of18 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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 21:48:16 ::: 5 wp404of18withcrwp930of18 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 section 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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 21:48:16 ::: 6 wp404of18withcrwp930of18 provisions of the Right to Information 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 Domestic 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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 21:48:16 ::: 7 wp404of18withcrwp930of18 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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 21:48:16 ::: 8 wp404of18withcrwp930of18 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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 21:48:16 ::: 9 wp404of18withcrwp930of18 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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 21:48:16 ::: 10 wp404of18withcrwp930of18 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 Hindu 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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 21:48:16 ::: 11 wp404of18withcrwp930of18 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 D.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.::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 21:48:16 :::
12 wp404of18withcrwp930of18 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. ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 21:48:16 :::
13 wp404of18withcrwp930of18 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 Vinod 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 D.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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 21:48:16 ::: 14 wp404of18withcrwp930of18 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 Information 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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15 wp404of18withcrwp930of18 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 ::: Uploaded on - 16/08/2019 ::: Downloaded on - 18/08/2019 21:48:16 :::