Crl. Misc. No. M – 3499 of 2009 v. Jag Mohan Bhola

CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. Ajay Kumar Kansal, Advocate, for the petitioner. None for the respondent. Gurdev Singh, J (oral) The petitioners – Chanchal Rani and Shivani Bhola, who are the legally wedded wife and daughter, respectively, of Jag Mohan – respondent have filed this petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') for modifying the orders dated

11.8.2007 passed by Chief Judicial Magistrate, Jind; and order dated

9.9.2008 passed by Sessions Judge, Jind; being illegal, erroneous and based upon mis-reading of evidence and against the well settled proposition of law. The petitioners filed an application under Section 125 of the Code for directing the respondents to pay them maintenance allowance at the rate of Rs.15,000/- (Rs.7500/- each) on the ground that they have no source of income and are unable to maintain themselves whereas the respondent is a healthy person owing an Auto Parts Industry and income tax payee and his monthly income from that business is Rs.30,000/- / Rs.40,000/-. The Crl. Misc. No. M – 3499 of 2009 -2- application was contested by the respondent, who admitted his relationship with the petitioners. He pleaded that petitioner No.1 herself left the matrimonial home stealthily on 23.8.2002 and tried to get the false case registered against him and his family members and application is counter- blast to the criminal case which was registered at Delhi on account of the death of his sister-Rashmi under Section 304, 498-A, 406 and 120-B IPC. Rashmi was given injuries by Dilbag Rai, brother of petitioner No.1 and one Sanjay and she succumbed to those injuries. In support of the averments made in the application petitioner No.1 examined herself. She offered herself for cross-examination, but learned counsel for the respondent failed to do so and pleaded no instructions on behalf the respondent. On the basis of that statement and in view of the arguments advanced before the Chief Judicial Magistrate, the application was allowed and the applicants were awarded maintenance allowance to the tune of Rs.2000/- (Rs. 1200/- to petitioner No.1 and Rs.800/- to petitioner No.2). The petitioners preferred a revision against that order challenging the quantum of maintenance, which was contested by the respondent. After hearing learned counsel for both the sides, the learned Sessions Judge vide his order dated 9.9.2008, modified the order of the Chief Judicial Magistrate and enhanced the maintenance to Rs.1300/- per month. The respondent did not come present before this Court inspite of his service. I have heard learned counsel for the petitioners. It was submitted by learned counsel for the petitioners that the statement of petitioner No.1, made before the Chief Judicial Magistrate, that Crl. Misc. No. M – 3499 of 2009 -3- respondent was running Auto Parts Industry in the two names and was having income of Rs.3 lacs per annum, remained un-rebutted. The respondent never challenged the statement of the petitioner by cross- examining her. Inspite of that the maintenance allowance of the petitioners was fixed at meager amount of Rs.1200/- per month and Rs.800/- per month, respectively, by the Chief Judicial Magistrate. Though the finding was recorded by the revisional Court that the maintenance allowance of the petitioners was being enhanced, but in fact the consolidated maintenance allowance of Rs.2000/- was reduced to Rs.1300/- per month. He prayed that the maintenance amount be fixed at the rate mentioned in the application filed by the petitioners. In the application filed under Section 125 of the Code, it was pleaded by the petitioners that the respondent was having a monthly income of Rs.30,000/- / Rs.40,000/-. In order to substantiate that plea she herself entered the witness box as PW-1. At that time she stated that the respondent has got two auto parts industries in which he is manufacturing clamps of iron, silver and steel and is an income tax payee. She also stated that his income is about Rs.3 lacs per annum. She was partly cross-examined by learned counsel for the respondent on the day her examination-in-chief was recorded, but the same was not completed as the Court time was over. On the next date learned counsel for the respondent pleaded no instructions and the petitioners closed their evidence. Thus there is un-rebutted statement of the petitioner regarding the income of the respondent. Even if there is no rebuttal evidence and there is no cross- examination of the petitioner even then the Court is not to take the income Crl. Misc. No. M – 3499 of 2009 -4- of the respondent so stated by petitioner No.1 as gospel truth. The judges are not computers and for interpreting the evidence they are required to bring in aid their day to day experience and other facts of the case are also to be looked into. The petitioners pleaded that the respondent is income tax payee and was running two auto part industries. They did not produce any documentary evidence in support of those pleas, though they could have done so. Reliance is being placed only on the oral statement of petitioner No.1. It is a matter of common knowledge that in order to get maintenance at enhanced rate the wives alway try to exaggerate the income of their husbands. At the same time judicial notice is also taken of the fact that the husbands try to conceal their actual income. In this case, the respondent has pleaded in his reply to the application that his monthly income is Rs.5000/-. He also stated therein that he is not running any such auto parts industry and is trading in those auto parts near Delhi. It cannot be said that such a trader would have meager income of Rs.5000/- per month. At the same time it also cannot be held on the basis of oral statement of petitioner No.1 that his income is Rs.3 lacs per annum. The best evidence was the income tax returns of the respondent, as according to the petitioners he is an income tax assessee. No such income tax returns or assessment orders passed by the income tax authorities were got produced. In these circumstances, this Court is left with no other option but to make some guess work for assessing the income of the respondent. After taking into consideration all the facts of the present case and other circumstances, I am of the considered opinion that the income of the Crl. Misc. No. M – 3499 of 2009 -5- respondent cannot be less then Rs.15,000/- per month. The maintenance allowance of the petitioners is to be affixed accordingly. The revisional Court committed an illegality by holding that it enhanced the maintenance of the petitioners from Rs.1000/- per month to Rs.1300/- per month. They had been awarded Rs.2000/- per month by the Chief Judicial Magistrate and by virtue of order of the revisional Court that maintenance allowance stands reduced to Rs.1300/- per month. In view of the above discussion, this petition is hereby accepted. The order passed by the revisional Court is modified to the effect that the maintenance allowance of petitioner No.1 is enhanced from Rs.1200/- per month to Rs.2500/- per month and the maintenance allowance of petitioner No.2 is enhanced from Rs.800/- per month to Rs.1000/- per month. February 24, 2010 tripti (Gurdev Singh) Judge