1 Cr.Revn.Apln. 253/2010 mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CRIMINAL JURISDICTION CRIMINAL REVISION APPLICATION NO.253 OF 2010 Mrs. Nasrin Bano Sabbir Shaikh ...Petitioner Vs. Mr. Sabbir Ahmed Shaikh ...Respondent Ms Shabana Ansari for Petitioner Ms. Murtuza Najmi amicus curiae CORAM : SMT. ROSHAN DALVI, J. DATED : 21ST OCTOBER, 2010 P.C. : 1. The Petitioner wife has challenged the order of interim maintenance granted by the Family Court and has applied for enhancement of the maintenance. Though the wife has applied for Rs.10,000/- interim maintenance of Rs.3000/- is given. 2. It was the case of the wife that the husband who was settled in Kuwait earned Rs.40,000/- per month. The husband had returned from Kuwait to Mumbai. 2 Cr.Revn.Apln. 253/2010 3. The husband contended that he was earning Rs.20,000/- per month. At the time of the evidence the wife had put a suggestion to the husband that he was getting a salary of Rs.15,000/- per month which was refuted by the husband. The husband contended that he earned a salary of Rs. 6000/-, which of course was not proved by him. 4. The wife only examined herself. She has been unable to prove any other income of the husband or even his properties. She has only made suggestion in his cross examination. These are that the husband purchased a flat in Mumbai for Rs.36 lakhs, that he owns certain vehicles, that his father does tailoring business, that the husband has a shop which is given out on rent and that he is doing private business as A.C. Technician besides his job. Unfortunately, all her suggestions are denied and none of her suggestion is substantiated by any other evidence. Hence the order of maintenance of Rs.3000/- does not require any interference. 5. It is contended by Ms.Najmi that the wife has sought execution of the order and thereafter she cannot challenge the same in revision. He contends that either the entire order has to be challenged or has to be upheld. This application is in the nature of an application for 3 Cr.Revn.Apln. 253/2010 enhancement of maintenance which can be filed only in the Family Court under Section 127 of the Cr.P.C. He contends that since the wife has adopted the remedy of execution, she is precluded from filing the Revision Application against the order she has herself sought to execute, because these reliefs are mutually exclusive. Whereas these contentions are attractive and correct in law and would apply as the general propositions of law, an order of maintenance which is essentially a temporary order amenable to change upon changed circumstances can be passed in revision and even pending final hearing. 6. Ms.Najmi also contends that any order passed in the Revision Application would be retrospective in effect and hence despite the execution being levied and that application being satisfied by payment made by the husband, the husband would be required to again pay further maintenance for the said period. That contention is incorrect. The order which could be made for any enhanced maintenance, upon the facts of the case and upon changed circumstances, would be effective only from the date of the Revision Application itself and not from an earlier date. 7. It is seen that in this case though the husband has not challenged the impugned order, he has not obeyed it either. 4 Cr.Revn.Apln. 253/2010 He has only paid so much of the amount as he was constrained to pay upon the pain of punishment after the execution application is taken out by the wife. The husband shall continue to pay the amount ordered. 8. However on the facts of this case the wife has not shown any error in law which would be required to be revised by this Court by any interference with the order of the Family Court. Consequently, though the application is maintenable no order can be passed on merits and hence the Criminal Revision Application is rejected. (SMT. ROSHAN DALVI, J.)