Whether husband can prove that wife is earning without adducing evidence in that regard?

 In   the   instant   case,   though   there   are
assertions and counter assertions, the Petitioner husband has not placed on
record   any   material  to   indicate   the  income  of  the   Respondent  No.2   as  a
practicing Advocate. This was necessary to be placed in view of the fact that it
is the case of the Petitioner husband that the Respondent No.2 is capable of
earning for herself. It is required to be noted that on the basis of facts which
are on record without there being any evidence produced in support of the
said   facts,   the   matter   cannot   be   approached   by   a   process   of   drawing
inferences. As indicated above it was the endeavour of the Learned Counsel for
the Petitioner to pursue this Court to draw a inference from the facts on record
namely that the Petitioner is an Advocate practicing in the High Court and that
she has an office in Borivali. The second set of facts is that the Respondent
No.2 was wearing some jewellery when she was present in Court on the date
of hearing. I am afraid that by a process of drawing inference, the income of
the Respondent No.2 cannot be presumed. It has come on record that though
the Respondent No.2 is an Advocate practicing in High Court and having office
at Borivali which addressed is found on her letter head. The Respondent No.2

is involved in prosecuting her own personal case, even notices which are on
the letter head of the Respondent No.2 if read show that it relates to her own
case and not those of her clients. It was therefore necessary for the Petitioner
to produce cogent material to indicate the income of the Respondent No.2.
The Trial Court in the absence of any such material by observing that it is the
obligation of the Petitioner to provide for the shortfall, has fixed the interim
maintenance @ Rs.4000/­ 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 1572 OF 2015 
Deepak Laxminarayan Verma 
Vs.
  The State of Maharashtra  
CORAM : R. M. SAVANT, J.
DATE   : 1st APRIL, 2016
Citation:2016 ALLMR(CRI)4846

1 Rule,   having   regard   to   the   challenge   raised   made   returnable
forthwith and heard.
2 The Writ Jurisdiction of this Court is invoked against the order
dated  10­3­2015  passed  by  the   Learned  Judge   of   the   Family  Court  No.4,

Mumbai by which order, the application Exhibit 4 filed by the Respondent
No.2 herein for maintenance under Section 125 of the Criminal Procedure
Code  (CrPC),  came  to  be  partly  allowed  and the  Petitioner  who was  the
Respondent in the said proceedings was directed to pay interim maintenance
@ Rs.4000/­ per month to the Petitioner wife from the date of the application
i.e. 9­7­2012 (wrongly mentioned as 9­7­2014 in the order). 
3 The Petitioner and the Respondent No.2 got married on 11­2­
2005. The Petitioner husband had filed the Marriage Petition No.A­1935 of
2007 for divorce on the ground of cruelty. The said Marriage Petition it seems
has been dismissed by the Family Court, Mumbai. The relations between the
Petitioner and the Respondent No.2 are estranged on account of which they
are   leaving   separately.   The   Respondent   No.2   herein   i.e.   wife   filed   the
application   being   No.E299   of   2012   under   Section   125   of   the   CrPC   for
maintenance. The said application is  founded on the fact that the Respondent
No.2 though a law graduate is pursuing post graduate studies in law i.e. LLM
and is a student. It was the case of the Respondent No.2 that she has no source
of income and that she is some how maintaining herself with the assistance of
friends and well wishers. It was also the case of the Respondent No.2 that the
Petitioner is working as a journalist and also has lot of ancestral properties.
The Respondent No.2 has claimed maintenance in the sum of Rs.25,000/­ per
month. In the said application for maintenance the Respondent No.2 filed an

application for interim maintenance which is numbered as Exhibit 4. The case
of the Respondent No.2 was controverted by the Petitioner. It was the case of
the Petitioner that the Respondent No.2 is an Advocate practicing in various
courts   in   Mumbai   and   earning   a   good   amount   as   professional   fees   and
therefore she is very well capable of maintaining herself. It was his case that
the Respondent No.2 has her own office at the address mentioned in her letter
head from where she is carrying out her legal practice. It was further the case
of the Petitioner that prior to she becoming an Advocate the Respondent No.2
was a journalist.  The  Petitioner  had therefore  sought  the   rejection  of  the
application   for   interim   maintenance.   The   said   application   for   interim
maintenance it seems was proceeded in the absence of the Petitioner herein
and by accepting the case of the Respondent No.2 the Learned Judge of the
Family   Court   No.4   by   her   order   dated   21­11­2013   granted   interim
maintenance of Rs.25,000/­ per month to the Respondent No.2. It seems that
the Petitioner after the said order dated 21­11­2013 was passed applied for its
setting aside on the ground that the same was passed without hearing the
Petitioner   and   that   the   interim   maintenance   granted   was   excessive   and
exorbitant. The said application filed by the Petitioner came to be allowed by
the Trial Court i.e. the Learned Judge of the Family Court by order dated 10­9­
2014. The application  filed by the  Respondent No.2 Exhibit­4 in  the  said
maintenance Petition No.E­299 of 2012 came to be rejected and the order
dated 21­11­2013 was called back by the Trial Court. The operative part of the

order   dated   10­9­2014   is   reproduced   herein   under   for   the   sake   of   ready
reference :
“1) The Application stands rejected.
2) The order dated 21­11­2013 stands called back
in view of rejection of this application.
3) Call back the distress warrant if issued earlier.”
4 The Respondent No.2 herein challenged the said order dated 10­
9­2014 passed by the Learned Judge of the Family Court by filing Criminal
Writ Petition No.4253 of 2014. A Learned Single Judge of this Court (R.G.
Ketkar J.) by order dated 11­2­2015 passed in the said Writ Petition set aside
the order dated 10­9­2014 and restored the Interim Application No.117 of
2012, Exhibit 4 to the file fo the Family court for a denovo consideration of the
same. It is pursuant to the said order dated 11­2­2015 that a fresh adjudication
took place and has resulted in passing of the impugned order dated 10­3­2015
by the Learned Judge of the Family Court whereby as indicated above the
interim   maintenance   of   Rs.4000   per   month   has   been   granted   to   the
Respondent No.2 herein i.e. Wife from date of the filing of the application i.e.
9­2­2012 (wrongly mentioned as 9­7­2014 in the order). Prior to the said
order being passed, the parties were given an opportunity to lead evidence. In
the said context it is required to be noted that the Petitioner has not placed

any material on record from which the income of the Respondent No.­2 wife
can be seen. On the other hand the Respondent No.2 has placed on record the
income of the Petitioner by way of a statement right from the Assessment Year
2006­2007   to   the   Assessment   Year   2012­2013,   based   on   the   income   tax
returns which were produced on behalf of the Petitioner. 
5 The   Trial   Court   i.e.   the   Learned   Judge   of   the   Family   Court
Mumbai   considered   the   said   application     for   interim   maintenance   and   as
indicated above by the impugned order dated 10­3­2015 has partly allowed
the   said   application   to   the   extent   of   granting   interim   maintenance   @
Rs.4000/­ per month to the Respondent No.2. The Learned Judge has adverted
to the fact that though the Respondent No.2 is an Advocate, no material has
been placed on record by the Petitioner to come to any conclusion as to the
income of the Respondent No.2. The Trial Court has adverted to the income of
the Petitioner as was sought to be asserted on behalf of the Respondent No.2
and   in   support   of   which   a   statement   has   been   placed   on   record   by   the
Respondent No.2. The Trial Court concluded that since the Petitioner is the
husband of the Respondent No.2, he is under an obligation to provide the
shortfall in the amount of maintenance to the wife and accordingly has partly
allowed the said application Exhibit 4 by the impugned order.
6 Heard the Learned Counsel for the parties.

8 The   Learned   Counsel   appearing   for   the   Petitioner   Mr.   Shelke
would seek to make submissions as regards the income of the Respondent
No.2 based on inferences to be drawn on the basis of facts which are on
record. The Learned Counsel would seek to draw this courts attention to the
fact that the Respondent No.2 is an Advocate practicing in the High Court, has
office in Borivali which address is mentioned in the letter heads and has been
addressing notices to various governmental authorities. The Learned Counsel
also sought to draw this courts attention  to the evidence recorded which
related to the gold ornaments which the Respondent No.2 was wearing on the
day   when   she   attended   the   Court.   It   was   the   submission   of   the   Learned
Counsel that the Petitioner is a physically disabled person and therefore the
interim maintenance fixed at Rs.4000/­ in addition to the amount of Rs.1000/­
fixed under the Domestic Violence Act is excessive.
9 Per contra, Mr. Dhopatkar the Learned Counsel appearing for t he
Respondent No.2 would support the impugned order. It was the submission of
the Learned Counsel that the amount awarded as interim maintenance is not
such in respect of which the Petitioner can have a grievance having regard to
the income of the Petitioner right from the Assessment year 2006­2007. It was
the submission of the Learned Counsel that the Respondent No.2 is also a
handicapped     person   and   therefore   she   needs   support   as   and   by   way   of

maintenance. It was the submission of the Learned Counsel that the Petitioner
has not placed on record any material to show that the Respondent No.2 has
any income as an Advocate.     
10 Having   heard   the   Learned   Counsel   for   the   parties   I   have
considered   the   rival   contentions.   In   the   instant   case,   though   there   are
assertions and counter assertions, the Petitioner husband has not placed on
record   any   material  to   indicate   the  income  of  the   Respondent  No.2   as  a
practicing Advocate. This was necessary to be placed in view of the fact that it
is the case of the Petitioner husband that the Respondent No.2 is capable of
earning for herself. It is required to be noted that on the basis of facts which
are on record without there being any evidence produced in support of the
said   facts,   the   matter   cannot   be   approached   by   a   process   of   drawing
inferences. As indicated above it was the endeavour of the Learned Counsel for
the Petitioner to pursue this Court to draw a inference from the facts on record
namely that the Petitioner is an Advocate practicing in the High Court and that
she has an office in Borivali. The second set of facts is that the Respondent
No.2 was wearing some jewellery when she was present in Court on the date
of hearing. I am afraid that by a process of drawing inference, the income of
the Respondent No.2 cannot be presumed. It has come on record that though
the Respondent No.2 is an Advocate practicing in High Court and having office
at Borivali which addressed is found on her letter head. The Respondent No.2

is involved in prosecuting her own personal case, even notices which are on
the letter head of the Respondent No.2 if read show that it relates to her own
case and not those of her clients. It was therefore necessary for the Petitioner
to produce cogent material to indicate the income of the Respondent No.2.
The Trial Court in the absence of any such material by observing that it is the
obligation of the Petitioner to provide for the shortfall, has fixed the interim
maintenance @ Rs.4000/­ As indicated above on behalf of the Respondent
No.2 a statement of the income of the Petitioner right from the Assessment
Year 2006­2007 has been placed on record. In so far as the year 2013-­2014 is
concerned,   his   total   income   is   Rs.1,27,000/­.   The   Petitioner   is   personally
present in Court. Prima facie from his appearance it looks like that he is
suffering   from   some   physical   disability   as   he   is   suffering   from   a  form   of
spondylitis  which has altered his gait whilst walking.  However, it cannot be
lost   sight of that the Petitioner is obligated to maintain his wife till such time
as they are legally separated. 
11 In my view, however, the amount of Rs.4000/­ granted per month
having regard to the income which is disclosed in the statement which is
annexed to the above Petition at page 257, which is part of the affidavit in
reply dated 21­3­2016 filed on behalf of the Respondent No.2, as also having
regard   to   the   fact   that   the   Respondent   No.2   has   already   been   awarded
Rs.1000/­ under the Domestic Violence Act, it would be just and proper to

reduce the maintenance granted by the Family Court @ Rs.4000/­ per month
to Rs.3000/­ per month. However, the same would operate prospectively i.e.
from April 2016. It is clarified that till March 2016, the Petitioner would be
liable to pay at Rs.4000/­ per month. The Petition is allowed to the aforesaid
extent. Rule is accordingly made absolute with parties to bear their respective
costs of the Petition. 
12 In   view   of   the   disposal   of   the   above   Writ   Petition,   it   is   not
necessary   to   consider   the   relief   prayed   for   in   the   above   Criminal   Misc
Application No.24 of 2016 as it would be open for the Respondent No.2 to file
an appropriate application in respect of the reliefs claimed therein before the
Family Court. The above Criminal Misc Application is accordingly disposed of.
                
[R.M.SAVANT, J]

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