Manoj S/O Late Mr. Anganamal ... vs Krishna D/O Mr. Arjunlal Todi And ...
2021 Latest Caselaw 4014 Bom

                                                                   10-WP.589.2021.doc

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                           CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL WRIT PETITION NO.589 OF 2021

Manoj Anganamal Jindal                                  ...       Petitioner
               V/S.
Smt. Krishna Arjunlal Todi & Anr.                       ...       Respondent


Mr. Vivek Tambe, Advocate for Petitioner.
Mr. A. M. Saraogi, Advocate for Respondent No.1.
Mr. Amit Palkar, APP for Respondent No.2 - State.


                                      CORAM      : A. S. GADKARI, J.

                                      DATE       : 4th MARCH, 2021.

P.C. :

1. By the present Petition under Article 227 of the Constitution of

India, the Petitioner-husband has impugned Judgment and Order dated

21st November 2020, passed in Petition No.E-14 of 2016 by the learned

Judge, Family Court No.2, Mumbai, allowing the said Application filed by

Respondent No.1-Wife for maintenance under Section 125 of the Code of

Criminal Procedure, 1973 (for short 'Cr.P.C.').

2. Heard Mr. Tambe, learned advocate for the Petitioner, Mr.

Saraogi, learned advocate for Respondent No.1 and Mr. Palkar, learned

APP for Respondent No.2 State.

3. The Petitioner and Respondent No.1 married each other on 8 th

February 2012. As there was matrimonial discord between them, the

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Respondent No.1 filed proceedings under Protection of Women from

Domestic Violence Act, 2005 and also, under Section 125 of Cr.P.C.

claiming maintenance.

4. Respondent No.1 filed the present Application on 8th December

2015. It further appears from record that, the efforts of Marriage

Councilor for bringing amicable settlement amongst the parties have

failed. It is the contention of Respondent No.1 that, the Petitioner and his

family are having four firms. That the Petitioner is earning handsome

amount from his business and is not taking necessary care of Respondent

No.1. It was the further contention of Respondent No.1 that, the

Petitioner is earning Rs.5,00,000/- per month. The Petitioner appeared in

the matter and filed his written statement below Exhibit 11. The

Petitioner denied all the contentions of Respondent No.1. The Petitioner

contended that, he is not earning Rs.5,00,000/- per month and the

amount claimed by Petitioner of Rs.50,000/- per month as maintenance is

beyond his salary. The record further indicates that, Respondent No.1 led

oral evidence before the Trial Court. The Petitioner filed various

documents before the Trial Court, however did not examine himself or

allowed Respondent No.1 to cross-examine him before the Trial Court.

The Trial Court after hearing the parties to the said Application

has directed the Petitioner to pay a maintenance @ Rs.50,000/- per month

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under Section 125 of Cr.P.C. from the date of filing of the said Petition and

has also granted other consequential reliefs, by its impugned Judgment

and Order dated 21st November 2020.

5. Learned counsel for the Petitioner submitted that, Respondent

No.1 has suppressed material documents from the Trial Court. The

observations made by the Trial Court that "The Respondent ought to have

examined himself. He ought to have entered into witness box." have been

wrongly mentioned, though the Petitioner never refused to enter into the

witness box. He further submitted that, in a proceeding under Section

125 of Cr.P.C., it is not necessary for the Petitioner to enter into witness

box. When this Court confronted him with the aspect of 'rebuttal of

presumption' and for that entering in to witness box, he submitted that, it

is also not necessary. He submitted that, directing the Petitioner to pay

Rs.50,000/- per month would amount to double jeopardy. He

emphatically submitted that, this Court 'should and must' allow his

Petition to have equity in the matter. He submitted that, dismissing his

Petition at the threshold would mean saddling the Petitioner with

unreasonable amount of maintenance and punishing him. He submitted

that, the impugned Judgment and Order is bad in law. He, therefore,

prayed that the Petition may be allowed.

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                                                                       10-WP.589.2021.doc

6. Per contra Mr. Saraogi, learned counsel for Respondent No.1

opposed the Petition and supported the impugned Judgment and Order.

He submitted that, as a matter of fact, the Petitioner has not annexed

necessary and relevant documents even to this Petition disclosing his true

and correct income. He submitted that, the maintenance awarded by the

Trial Court is just and unreasonable. He submitted that, there are no

merits in the Petition and it may be dismissed summarily.

7. At the outset, it is to be noted that, the learned advocate for the

Petitioner advanced various arguments before this Court without any basis

for it. Though, the Petitioner has not annexed any documents in support

of his contention, learned advocate for the Petitioner wants this Court to

believe in his statements as gospel truth. He also submitted that, to have

equity in the matter, the documents which he now intends to produce

before this Court across the bar be looked into, even if, those are not

annexed to the Petition and opportunity to deal with the said documents

was not given to the other side. This cannot be countenanced.

8. Perusal of record indicates that, the marriage between the

Petitioner and Respondent No.1 was a lavish marriage. The Petitioner

himself has produced on record compilation of the documents (Exhibit 24)

before the Trial Court. Respondent No.1 has given a list of valuable

articles and expensive gifts given to the Petitioner and his relatives at the

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time of marriage. The income tax return filed by the Petitioner for the

year 2014-15 discloses his income of Rs.10,08,759/-. The record further

indicates that, though the Trial Court granted an opportunity to the

Petitioner to enter into the witness box he did not do so. He has cross-

examined Respondent No.1 at length. However, nothing beneficial to the

Petitioner has been brought on record. As the Petitioner did not enter

witness box and / or made him self available for the cross-examination by

Respondent No.1, an adverse inference has to be drown against him. It

appears that, the Petitioner wants to suppress his real and true income

from the Courts. Even if the Petitioner has denied that, he has no concern

with the four firms mentioned by Respondent No.1 in her Application, it

appears that atleast one of the firm in the list belongs to him as it is in his

name. The Trial Court has recorded a finding that, the Petitioner is trying

to suppress his real income from it and that is the reason, he did not enter

into witness box and faced cross-examination. That the Petitioner has

earning much more than what is disclosed in his income tax return and it

is the reason, he did not entered into witness box. I find substance in the

findings recorded by the Trial Court.

9. After perusing record, this Court is of the view that, the

maintenance awarded by the Trial Court is a reasonable maintenance,

which is commensurate with the facts and record. The Trial Court has not

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committed any error either in law or in facts, while passing the

impugned Judgment and Order.

10. Petition being dehors of merits is accordingly dismissed in

limine.

                                       (A. S. GADKARI, J.)




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