Bombay High Court

Pinky W/O. Mahendra Kumar Jain vs The State Of Maharashtra And Anr on 6 October, 2017

Bench: Dr. Shalini Phansalkar-Joshi

Dixit
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CRIMINAL APPELLATE JURISDICTION

                          CRIMINAL WRIT PETITION NO.2270 OF 2016

        Pinky Mahendra Kumar Jain,                         ]
        Aged about 38 years,                               ]
        Adult, Indian Inhabitant,                          ]
        R/at 56-C, 2nd Floor, Vasant Villa,                ]
        'C' Block, S.B.S. Road,                            ]
        Colaba Market, Mumbai - 400005.                    ] .... Petitioner
                         Versus
        1. The State of Maharashtra                        ]
        2. Mahendra Pukhraj Jain,                          ]
           Aged about 38 years,                            ]
           Indian, Inhabitant,                             ]
           R/at C/o. G.P. Jain,                            ]
           56-C, 2nd Floor, Vasant Villa,                  ]
           'C' Block, S.B.S. Road,                         ]
           Colaba Market, Mumbai - 400 005.                ] .... Respondents




        Mr. Ajit J. Shobhawat for the Petitioner.
        Mr. Dinesh Rathod, i/by Mr. Surendra C. Jadhav, for Respondent No.2.



                                 CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.

                                 DATE    : 6TH OCTOBER 2017.





        WP-2270-16.doc


 ORAL JUDGMENT :

1. Rule. Rule is made returnable forthwith. Heard finally, by consent of

learned counsel for the Petitioner and Respondent No.2.

2. This Writ Petition is directed against the order dated 5 th May 2016

passed by Family Court No.2, Mumbai, thereby allowing the application

filed by the Petitioner for interim maintenance in the proceedings bearing

Petition No.E-199 of 2015, filed for maintenance, under Section 125 of the

Cr.P.C.

3. The only grievance raised by the Petitioner is about the quantum of

interim maintenance awarded by the Trial Court. It is submitted that the

trial Court has granted interim maintenance @ Rs.5,000/- per month,

each, to the Petitioner and her two minor school going children. However,

the said amount of maintenance is not at all sufficient and it is quite

meager, having regard to the income of Respondent No.2. It is submitted

that, Respondent No.2 is dealing in the Gold and Silver business. He is

having three Shops, situate at Colaba Market. He is the owner in respect

of five Flats; out of which, three Flats are situate at Shahid Bhagatsingh

Road, Colaba Market, and two Flats are situate at Pasta Lane, Colaba.

His monthly income from the business is more than Rs.20,00,000/- per

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month and, therefore, it is contended that the Trial Court should have

awarded maintenance @ Rs.2,00,000/- per month to the Petitioner.

4. This submission of learned counsel for the Petitioner is, however,

strongly resisted by learned counsel for Respondent No.2, by pointing out

that Respondent No.2 has produced his Income Tax Returns on record,

which show that his income is not more than Rs.15,000/- to Rs.20,000/-

per month. The business details, which the Petitioner has given, pertain to

the joint family business and not to the business of Respondent No.2

individually. He is working as an employee in the Shop and getting salary

only, which is not more than Rs.20,000/- per month. In such situation, the

demand for enhanced amount of maintenance, as made by the Petitioner

in this Writ Petition, is totally unjustified.

5. The perusal of the impugned order passed by the Trial Court

reveals that the Trial Court has considered the Income Tax Returns filed

by Respondent No.2 and found that, in the column of 'Balance Sheet', his

various assets, as on 31st March 2011, have been shown and those

assets reveal that he holds Mangal Keshav Securities of Rs.5,00,000/-;

Silver Palace Assets of Rs.5,25,000/-, Assets of Mukesh P. Jain to the

tune of Rs.13,00,000/- and the assets of Citizen Co-operative Bank Ltd. to

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the tune of Rs.4,33,000/-. These assets are very much reflected in the

Income Tax Returns itself. There may be some liabilities, as submitted by

learned counsel for Respondent No.2, but the Income Tax Returns clearly

reflect that Respondent No.2 and his family is dealing in the business and

earning substantial income. Therefore, he could have his assets and

liabilities.

6. Needless to state, that whatever income is given to the Income Tax

Authorities in the 'Returns' may not be necessarily reflecting the true

picture and, therefore, Court has to take into consideration the lifestyle of

the parties and all other aspects. If one considers the same, then, it goes

without saying that, Respondent No.2 has made every attempt to conceal

his real income, just in order to avoid the payment of maintenance.

7. The Hon'ble Supreme Court in the case of Manish Jain Vs.

Akanksha Jain, CDJ 2017 SC 352, has observed, in paragraph No.39,

that;

"39. .................................... It has now become a matter of routine that as and when an application for maintenance is filed, the non-applicant becomes poor displaying that he is not residing with the family members, if they have a good business and movable and immovable properties, in order to avoid payment of maintenance. Courts cannot, under

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these circumstances, close their eyes when tricks are being played in a clever manner."

8. In the case of Tejas B. Naukudkar Vs. Urmishta Tejas Naukudkar &

Anr., CDJ 2016 BHC 1568, the learned Single Judge of this Court has

observed, in paragraph No.7, that;

"7. In case of Shirish H. Garg Vs. Nidhi S. Garg, 2011 (5) Bom. C.R. 372, this Court has held that the ascertainment of the income has to be done judicially and sensibly and not arbitrarily or only arithmetically. In consideration of income contemplated under these proceedings, cognizance need not be restricted to only the numerical figures shown in the Income Tax Returns, nor can such figures be taken for the gospel. The Court is required to take into consideration the attendant circumstances, before the figures stated in the Income Tax Return are accepted as they stand."

9. In this Writ Petition, the Petitioner has given the details of the

expenses of her both the children and it can be seen that she has to pay

Rs.65,346/- in the year 2015-16 for the education of her son Harshil and

Rs.61,780/- for the education of her other son Sidh. Thus, that the school

expenses of the children alone come to the tune of more than Rs.5,000/-

per month, each, for both the children. Hence, the interim maintenance

awarded by the Trial Court @ Rs.5,000/- per month to the minor children,

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can hardly be called as sufficient, as, in the said amount, the Petitioner is

unable to cater to their other requirements. The children are growing and,

therefore, their development needs need the amount more than

Rs.5,000/- per month.