Thursday, 29 December 2016

Whether income of husband for grant of maintenance to wife can be determined on basis of income tax return produced by him?

 It is also clear from evidence that husband
has tried to hide his earning activity so also
his income and he has not come forward with clear
evidence regarding his income and therefore, I do
not see any irregularity or illegality by the
trial Court in holding that he must be earning
Rs.1,25,000/- p.m. considering the available
evidence on record. If at all applicant is clear
and certain that his income is not as has been
presumed by the trial Court, then, he should have
come forward with relevant documentary evidence.

An attempt was made by the applicant – husband to
prove that his yearly income is only
Rs.1,46,000/- by producing one I.T. Return, but
trial Court has rightly observed that since it is
a self-declaratory statement of the opponent and
that too pending the trial, same cannot be
considered as a reliable piece of evidence to
confirm the income of the husband. Whereas, wife
has categorically stated and deposed on oath that
husband and his family members are dealing with
manufacturing and selling of embroidery machines
and he is earning Rs.2 Lacs to Rs.3 Lacs p.m.
Thereby, when applicant – husband confirms that
he is doing the job work of embroidery work, it
is clear that he is doing some business and in
that case, he should have come forward with
proper and reliable evidence so as to disallow
the trial Court to presume his income. Though
applicant has tried to prove his Income-Tax
Returns of previous years, he has not bothered to
prove his income by proper and reliable evidence
so as to believe that he is earning only
Rs.15,000/- p.m.
8. In cross-examination the opponent – husband
has admitted that he is residing with his father
and that he has already filed Hindu Marriage
Petition for divorce and therefore, it is certain
and clear that he does not want to keep the wife
and children; whereas, so far as the earning
activity of his father and himself is concerned,
though he admits that he is doing the business of

selling and manufacturing embroidery machines, he
does not want to disclose several details and
even did not admit though proved on record by
documentary evidence that from the partnership
firm with his father, he has received an amount
of Rs.10,25,647/- in his personal account by one
single transaction on 31.10.2009. He further
states that he does not know as to how many
properties he is holding, but in next breath, he
has to admit that he holds more than 15 shops
jointly with her mother’s sister. He admits that
his family is having fleet of cars viz. Mercedes
Benz, Skoda, Corolla and Hyundai i-20 and that
they are holding Sawlani Estate, comprising of
5000 Sq.Yds., though he is saying that it is in
joint name. He also admits that his Bungalow is
of 500 – 600 Sq.Yds. and that their factory is in
two different sheds. He also admits that he does
not know that in which school his son is
studying, but has an audacity to say that the
school fees is paid by him, without disclosing
any proof. However, he also admits that school
fees is Rs.78,000/- p.a. All this evidence goes
to show that applicant has enough income to pay
reasonable and substantial amount of maintenance
to the wife and children. It cannot be ignored
that at Exh.20, the applicant has filed an
affidavit, wherein he has included his arguments
and therein though there is reference of I.T.
Returns for the years 2008 – 2009 and 2009 – 2010
with some other documents, practically, those

documents are thereafter never proved by the
applicant on record and therefore, when any
documents, which are simple xerox copies, and not
proved on record of the trial Court, then, those
documents cannot be looked into.
9. As already stated, this being a revision
application, there is limited scope of
interference and more particularly, when
applicant has not came forward with proper
evidence to prove his income by producing
statement of accounts and has instead produced
self-declaratory statement of I.T. Returns, and
more particularly, when he is residing with his
father and when they both are having valuable
properties and business and therefore, only
because of education of wife, it cannot be stated
that she is not entitled to maintenance or that
she is able to maintain herself.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 278 of2015

AMIT RAMCHAND SAWLANI.
V
CHITRA AMIT SAWLANI 
CORAM: MR.JUSTICE S.G.SHAH
Date : 09/08/2016
Citation:2016 CRLJ(NOC)340 Guj

1. Heard learned advocate Mr.Anand B.Gogia for
the applicant, learned advocate Mr.N.L. Ramnani

appearing for learned advocate Mr.G.T. Dayani for
the respondents No.1 to 3 and learned APP
Mr.Manan Mehta for the respondent No.4 being a
formal party.
2. The applicant herein is husband, whereas
respondent No.1 is his wife and respondents No.2
and 3 are their minor children. The applicant has
challenged the judgment and order dated
19.03.2015 by the Family Court of Surat in
Criminal Misc.Application No.478 of 2010
preferred by respondents No.1 to 3 u/s.125 of the
Code of Criminal Procedure (‘Code’, for short)
seeking maintenance. By such impugned judgment,
the Family Court has considering the income of
the applicant as Rs.1,25,000/- p.m., awarded an
amount of Rs.30,000/- towards maintenance of wife
and Rs.10,000/- each for two minor children,
thereby awarding in total Rs.50,000/- towards
maintenance.
3. So far as the relation between the parties
are concerned, it is undisputed fact and
therefore, the only issue in the revision
application is whether the amount of maintenance
is proper or not, because the record
categorically confirms that there is matrimonial
dispute between the husband and wife and it is
also clear that wife is not working woman and
thereby, she is unable to maintain herself so
also the minor children.

4. This being a revision application, the Court
has to simply verify that whether there is any
illegality or irregularity in the impugned
judgment so as to interfere with or to modify it
or not. Thereby, though this is first revision
after the impugned judgment by the Family Court,
re-appreciation of entire evidence would not be
proper when issue is pertaining to maintenance of
deserted wife and children only, if there is no
arbitrariness or perverseness and thereby, if
there is no irregularity or illegality in any
manner whatsoever, there is no reason to
interfere with or to modify the same. Moreover,
the quantum of maintenance is purely based upon
the earning of the husband and requirement of the
wife and minor children, so also based upon the
standard of living and status of the parties and
thereby, there is no rule of thumb that
maintenance cannot be beyond certain limit or
restricted to some upper limit in any manner
whatsoever, more particularly after the amendment
of Section 125 of the Code w.e.f. 24.9.2001
since, now, the upper limit of amount of
maintenance has been omitted from the statute. It
is for obvious reasons that an amount of Rs.500/-
is in any case not only meagre, but it may result
into mockery of the judicial proceedings,
considering the fact that because of devaluation
of money, so also inflation and the standard of
living, Rs.500/- per person is absolutely
inadequate amount for survival of a living person

in these days.
5. Therefore, now, when there is no upper limit
of awarding maintenance even in proceedings
u/s.125 of the Code, though the word
“maintenance” is not defined in the Code, it is
settled legal position that the word
“maintenance” includes every requirement of the
wife and children viz. lodging, boarding,
medicines, transportation, education of children
and thereby, practically, now, the maintenance to
be awarded u/s.125 of the Code would be same,
which may be awarded in any other similar
proceedings under different statutes viz. The
Protection of Women from Domestic Violence Act
2005, Hindu Adoption and Maintenance Act, 1956 or
The Hindu Marriage Act, 1956 or any other
provision of law, which entitles the wife and
minor to get maintenance. Thereby, the only
restriction in the proceedings of maintenance
u/s.125 of the Code, would be to the effect that,
at the most, though such proceedings are to be
carried out in summary manner, the amount of
maintenance may be determined based upon actual
earnings of the husband or atleast his earning
capacity and may be based upon the properties or
wealth held by the husband, but not creating any
right in such properties as permissible under the
Domestic Violence Act or Hindu Adoption and
Maintenance Act. Therefore, at the most, it may
not be for luxurious life by the wife and
children, but it must be for living in similar

status of the husband. Therefore, for e.g. if
husband is having luxurious vehicles viz.
Mercedes Benz Car, BMW Car etc. though wife and
children may not ask for or may not be entitled
to luxurious car, but at the same time, they are
certainly entitled to small car for
transportation. This is just an example, but in
any case, it is settled legal position that the
quantum of maintenance would certainly be based
upon the earnings or earning capacity of the
husband, so also the basic requirement of the
wife, which includes not only for food and
lodging, but for everything.
6. In view of above discussion, if we peruse the
facts and circumstances, so also evidence
emerging from the record, it becomes clear that
in the present case, the family of applicant –
husband is using luxurious cars and therefore,
wife and children is atleast entitled to good
amount of maintenance rather than a meagre amount
being awarded in terms of few thousand rupees,
which is generally awarded in most of the cases,
but such award are always in absence of proper
cogent and reliable evidence regarding income or
earning capacity of the husband. Whereas, in the
present case, there is positive evidence that
husband is doing business with his father and
they are not only well to-do, but enjoying their
life by utilizing luxurious items and vehicles
and living high-standard life. As against that,
what is pleaded and tried to be proved by the

husband, to avoid to maintain wife and children,
is to the effect that wife has studied upto B.Com
and she is running tuition classes and she is
having her separate income and therefore, she is
not entitled to any amount of maintenance. He is
also relying upon the admission by the wife
regarding her ignorance about the details of the
business activities and business details of the
husband, so also her admission regarding owning a
car by her, and that in past, she was running
tuition classes. However, that alone cannot be
considered as an effective and conclusive
evidence to refuse to pay the amount of
maintenance. On the contrary, as discussed herein
above, if wife is having small car, and if
husband is having a luxurious car, then,
practically, husband does not have to provide a
new car, but atleast the amount of maintenance
would certainly include expense or cost of
petrol/diesel and maintenance of such car.
7. It is also clear from evidence that husband
has tried to hide his earning activity so also
his income and he has not come forward with clear
evidence regarding his income and therefore, I do
not see any irregularity or illegality by the
trial Court in holding that he must be earning
Rs.1,25,000/- p.m. considering the available
evidence on record. If at all applicant is clear
and certain that his income is not as has been
presumed by the trial Court, then, he should have
come forward with relevant documentary evidence.

An attempt was made by the applicant – husband to
prove that his yearly income is only
Rs.1,46,000/- by producing one I.T. Return, but
trial Court has rightly observed that since it is
a self-declaratory statement of the opponent and
that too pending the trial, same cannot be
considered as a reliable piece of evidence to
confirm the income of the husband. Whereas, wife
has categorically stated and deposed on oath that
husband and his family members are dealing with
manufacturing and selling of embroidery machines
and he is earning Rs.2 Lacs to Rs.3 Lacs p.m.
Thereby, when applicant – husband confirms that
he is doing the job work of embroidery work, it
is clear that he is doing some business and in
that case, he should have come forward with
proper and reliable evidence so as to disallow
the trial Court to presume his income. Though
applicant has tried to prove his Income-Tax
Returns of previous years, he has not bothered to
prove his income by proper and reliable evidence
so as to believe that he is earning only
Rs.15,000/- p.m.
8. In cross-examination the opponent – husband
has admitted that he is residing with his father
and that he has already filed Hindu Marriage
Petition for divorce and therefore, it is certain
and clear that he does not want to keep the wife
and children; whereas, so far as the earning
activity of his father and himself is concerned,
though he admits that he is doing the business of

selling and manufacturing embroidery machines, he
does not want to disclose several details and
even did not admit though proved on record by
documentary evidence that from the partnership
firm with his father, he has received an amount
of Rs.10,25,647/- in his personal account by one
single transaction on 31.10.2009. He further
states that he does not know as to how many
properties he is holding, but in next breath, he
has to admit that he holds more than 15 shops
jointly with her mother’s sister. He admits that
his family is having fleet of cars viz. Mercedes
Benz, Skoda, Corolla and Hyundai i-20 and that
they are holding Sawlani Estate, comprising of
5000 Sq.Yds., though he is saying that it is in
joint name. He also admits that his Bungalow is
of 500 – 600 Sq.Yds. and that their factory is in
two different sheds. He also admits that he does
not know that in which school his son is
studying, but has an audacity to say that the
school fees is paid by him, without disclosing
any proof. However, he also admits that school
fees is Rs.78,000/- p.a. All this evidence goes
to show that applicant has enough income to pay
reasonable and substantial amount of maintenance
to the wife and children. It cannot be ignored
that at Exh.20, the applicant has filed an
affidavit, wherein he has included his arguments
and therein though there is reference of I.T.
Returns for the years 2008 – 2009 and 2009 – 2010
with some other documents, practically, those

documents are thereafter never proved by the
applicant on record and therefore, when any
documents, which are simple xerox copies, and not
proved on record of the trial Court, then, those
documents cannot be looked into.
9. As already stated, this being a revision
application, there is limited scope of
interference and more particularly, when
applicant has not came forward with proper
evidence to prove his income by producing
statement of accounts and has instead produced
self-declaratory statement of I.T. Returns, and
more particularly, when he is residing with his
father and when they both are having valuable
properties and business and therefore, only
because of education of wife, it cannot be stated
that she is not entitled to maintenance or that
she is able to maintain herself.
10. So far as quantum of maintenance is
concerned, though total amount of Rs.50,000/- may
seem to be a good amount or higher amount of
maintenance, practically, it is for three living
persons, out of which respondent No.2 is aged
about 16 years and therefore, liability to
maintain him would be for a limited period and
therefore, I do not wish to interfere with the
impugned judgment.
11. However, it is made clear that both the
parties are at liberty to apply for modification

of such judgment before the trial Court, based
upon the available evidence with them, either to
prove their case or to disprove and rebut the
case of other side for modification of such
judgment as provided u/s.127 of the Code. In that
case, the concerned trial Court shall decide such
application without being influenced by rejection
of this revision application.
12. It would be relevant to refer following
decisions on all such issues, which are raised in
this revision application;
1.Shamima Farooqui vs. Shahid Khan reported in AIR
2015 SC 2025;
2.Bhuwan Mohan Singh vs. Meena reported in AIR 2014 SC
2875;
3.Badshah vs. Urmila Badshah Godse reported in AIR
2014 SC 869;
4.Saygo Bai vs. Cheeru Bajrangi reported in AIR 2011
SC 1557;
5.Shail Kumari Devi vs. Krishan Bhagwan Pathak
reported in AIR 2008 SC 3006 and
6.Chaturbhuj vs. Sita Bai reported in AIR 2008 SC 530;
7.Ramesh Chander Kaushal, Captain vs. Veena Kaushal
reported in AIR 1978 SC 1807.
13. In view of above facts and circumstances,
there is no substance in the present revision
application and same is dismissed.
14. Record and proceedings be sent back to the
concerned trial Court forthwith.

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