1 cam304.09 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.304 OF 2009 IN FAMILY COURT APPEAL NO. 45 OF 2009 Sarita Ravindra Kedare. ....Appellant. Vs. Ravindra P. Kedare. ....Respondent. Mr. N.R.Bubna for applicant. Mr. G.B.Manurkar for respondent. CORAM:- A.M.KHANWILKAR AND A.A.SAYED, JJ DATED:- JULY 27, 2010 P.C. 1. Heard Counsel for the parties. By this application, the wife has applied for interim maintenance during the pendency of the appeal. The appeal is filed by the wife questioning the correctness of the decree of divorce, which according to wife, has been passed exparte and without notice to her. 2. By the present application, it is prayed that monthly maintenance of amount of Rs.75,000/- to the wife and further sum of Rs.75,000/- per month 2 cam304.09 towards monthly maintenance of minor son Prathamesh from the date of filing of the application be provided to the applicant wife. To justify the claim of maintenance, in paragraphs- 4 and 5 of the application, it is averred thus: “4. The Petitioner has no source of income and is dependent upon her relatives for her maintenance. The Respondent is a very rich man and is having number of properties viz. More than 2 acres of agricultural land at village Dhodambe, Tal. Chandvad, District Nashik, four Lottery centre shops at Dadar and near C.S.T. Obtained by giving hefty deposits, a flat in Chembur Tilak nagar Bldg. no. 66, Room no.103 Dhananjay Co-op Housing society having area of Rs.373 sq.ft. Carpet having value about Rs.3500000/-, a two room kitchen flat at Mulund, Tambenagar valued about Rs.150000/-, a two room kitchen flat bearing Room no.103 at Kirti Villa, Station Road, Vasai valued about Rs.150000/-, one Tata sumo bearing registration no.MH01U4163 worth about Rs. 400000 and one Tavera car bearing registration no.MH04BD4141 worth about Rs.900000/- besides other properties. The Respondent in year 2006 constructed 3 floor Building at village Dhodambe, Tal.Chandvad District Nashik at cost of Rs.1500000/- approximately. The Respondent has also purchased land at village Dhodambe, Tal. Chandvad District Nashik in year 2005 for Rs.215000. 5. The petitioner further submits that the respondent has paid hefty deposit of Rs.900,000/- for 4 shops in which he is running lottery centre and brass band business and is paying monthly rent of Rs.60,000/-. The respondent has employed about 24 servants in said shops and is paying salary exceeding Rs.1 Lakhs per month to said staff. The respondent is having flourishing business of lottery as well as brass band and is earning about Rs.5 Lakhs per month from the same. The petitioner submits that assets and business carried out as well as vehicles used and lifestyle enjoyed by respondent does not leave any doubt about his income. 3 cam304.09 Hereto annexed and colly. Marked as Exh. ‘A’ are the documents, photographs showing various properties & assets of respondent and copy of the Judgment & order dated 24-4-2007 passed by J.M.F.C. Ist class, Malegaon in Cri. Application No.172/2005.” 3. Indeed, the Respondent-husband has denied the claim of maintenance pressed into service on the assertion that he does not have sufficient means of income. According to the Respondent-husband, he is running only one licensed Lottery shop and earning meager income therefrom, which is not exceeding more than Rs.5 Lakhs as gross amount from that business. According to the Respondent-husband, he has no other source of income. 4. However, from the pleadings and the documents which are produced on record, prima facie, we find force in the stand taken by the applicant-wife that the respondent-husband has sufficient means of income and has not disclosed the same in its entirety. It is stated that the agricultural land, which is irrigated land admeasuring 2 Hectors 10 Ares(i.e. over 5 Acres) is owned and possessed by the Respondent-husband. In support of this assertion reliance is placed on 7/12 extract at page 6C. Indeed, it mentions the name of the father of the Respondent-husband as owner and occupant, situated at village Dhodambe Tal. Chandvad, District-Nashik. It is an irrigated land where crops such as onion, tomato and bajjari are produced. Further, reliance is also placed on 7/12 extract 4 cam304.09 at page 6E, which indicates that the Respondent-husband is co-owner alongwith his brothers-Jitendra and Surendra of another agricultural land admeasuring over 2 acres. Even this agricultural land is irrigated land where crops like onion, tomato and maze are produced. The fact that the Respondent-husband is running licensed Lottery shop is not in dispute. According to the Respondent- husband he has only one shop, whereas according to the applicant-wife, he is running four such shops at different places. We will go by the statement made by the Respondent-husband that he is running atleast one licensed lottery shop at Dadar in a prime locality. We need not delve upon the question as to whether he is occupying the said business premises as owner or tenant. The fact remains that he is running business of lottery from the said place known as ‘Parasmani Lottery Centre’. Photograph of the said shop is produced at page-6OO. According to the Respondent-husband, the name of the shop is ‘Panchratna Lottery Shop’. From the document at page 6K, it is noticed that the Respondent-husband has visiting card which mentions that he is involved in the business of Trimurti Travels. He has mentioned residential address as Room No. 759, Trimurti Niwas, opposite Venkatesh Shop, Bhim Nagar Lane, behind Sarvodaya Hospital, Ghatkopar(W), Mumbai 400 086. The Respondent has denied the correctness of the photograph of the shop Parasmani produced by the applicant-wife. However, we find that the document at page 6K indicates that 5 cam304.09 the Respondent-husband is not only engaged in the business of licensed lottery shop but also in the business of Travels and Brass Band. However, no disclosure about the income derived from the said business has been made in the income tax return filed for the assessment year 2009-2010. From the details of the income-tax return, it is noticed that he has disclosed his income only from sale of government lottery for the year ended 31st March, 2009 as Rs.4,58,070/- only. No other income has been disclosed by him. Before us, it is conceded that he is co-owner atleast alongwith his brothers of agricultural land, which is an irrigated land and crops of onion, tomatoes and maze are being produced. Further, it is noticed that the respondent-husband owns luxury car of Tavera make, which is estimated to be around Rs. 9 Lakhs. That is shown in the income tax return. He has shown the value of the said motor car as Rs.8,14,646/-. It is stated that the said car has been purchased by taking loan from Sangali Urban Co-op. Bank. Even the loan amount has been disclosed in the balance sheet. The total loan shown in the balance sheet is over Rs.8 Lakhs. Certainly, the loan has been given to the Respondent-husband on the basis of his income and ability to pay EMI amount. It is stated across the bar that the EMI for the motor loan is around Rs.15,000.00 per month. That means the Respondent has sufficient means not only to pay EMI amount but also for other business activities and for personal expenditure. Significantly, from the said car Registration papers at 6 cam304.09 page 6H it is revealed that his address is shown as 103, Kirti Vila, Station Road, Vasai, Dist. Thane with land-line Phone No.25023238. That presupposes that he has one more residential property at Vasai. Further, it is also noticed from the said document that the said vehicle is hypothicated to UTI Bank Ltd. Whereas, in the Income Tax returns at page 27 it is disclosed that the car loan of Rs. 5,56,916/- only is taken from Sangali Urban Corporation Bank. The other loan is of Family Credit Ltd. of Rs.2,56,120/-. That does not appear to be for car loan. Besides, the Respondent has shown deduction to the extent of Rs. 1,22,869/- towards depreciation. That amount will have to be reckoned as available to the Respondent besides the net profit of Rs.1,37,470/- shown in his returns. To get over this it is submitted that the said car does not belong to the Respondent. This plea is to confuse the issue. In addition to the car, the Applicant has produced photographs of tractors and crusher, which according to the applicant are owned by the respondent-husband. Respondent-husband however, has denied the same. The applicant has also produced photographs of the three storyed house named as “Matoshri Niwas and Trimurti Niwas”. The Respondent-husband submits that the said property belongs to his father and he has no concern therewith. The Respondent-husband however, concedes that he is owner of Chembur flat admeasuring 373 sq.ft. carpet area which was purchased in the year 2004. But it is stated that said flat was purchased by the 7 cam304.09 Respondent from the financial assistance given by his maternal uncle. That is not reflected in the returns. Besides, photograph of vehicle standing in the name of the respondent-husband are produced at page 6NN. It is noticed that both these vehicles bear identical number i.e. 4141. The fact that the Respondent owns the motor cycle vehicle has not been disclosed in the income tax return. When confronted in court the Respondent who is present in court, states that as per his recollection, the said motor cycle vehicle belongs to his brother Surendra. 5. From the material on record and the stand taken by the Respondent- husband, we have no hesitation in inferring that the Respondent-husband is not disclosing his real income. Even the income tax returns filed by him are questionable, being inaccurate. It appears that to avoid liability to pay maintenance, the Respondent has made arrangement by purchasing properties in different point of time since 2004 either in his own name or alongwith his brothers jointly. Perhaps, a concerted family arrangement is made to defeat the claim of maintenance of wife and the son. The fact remains that without sufficient income, the Respondent could not have made such investment. Although the income-tax return produced by the Respondent discloses his net earning as only around Rs.1,37,000/- per annum, it is not possible to accept the 8 cam304.09 same as accurate and correct. On the other hand, we have no hesitation in taking the view that the real income of the Respondent is not forthcoming. Accordingly, we may have to indulge in some guess work to quantify the maintenance payable by the Respondent-husband to the wife and minor son Prathamesh. According to us, the Applicant may not be entitled for the amount as demanded in the application, but at the same time we have no hesitation in taking the view that the income of the Respondent husband is sufficient enough to take the liability to pay maintenance amount to the applicant for herself and for the minor son atleast in the sum of Rs.15,000/- per month. We say so because if the Respondent is paying EMI to the extent of Rs.15,000/- towards loan obtained for purchasing motor vehicle as conceded before us, which is for a luxury vehicle; coupled with the fact that he has invested in different properties from 2004 and is doing business of lottery shop and also Travels and Brass Band. It appears that all these businesses are family businesses, which fact is also reinforced from the marriage card of Respondent’s brother Jitendra at page 6L. It mentions the name of the organizers as Panchratna & Parasmani Lottery Centre groups. In other words, the Respondent-husband has not approached this Court with clean hands. 6. In the circumstances, we fix the maintenance amount payable by the 9 cam304.09 Respondent-husband to the applicant-wife and also the minor son Prathamesh in the sum of Rs.15,000/- per month with effect from the date of the application i.e. 6th October, 2009. We have limited the maintenance amount to Rs.15,000/- per month also for the reason that the applicant has submitted application before the Magistrate under Section 127 claiming enhancement of maintenance amount upto Rs. 15,000/- per month only. 7. In view of the finding recorded by us earlier and as there is serious doubt about the correctness of the returns submitted by the Respondent-husband to the Income-tax Authority for the year ended 31st March, 2009 in respect of PAN No. ANGPKO957R, we think it appropriate to forward this order to the Assessing Officer(Ward/Circle) 22(1)(4) for necessary investigation into the matter and take appropriate measures, as may be required in accordance with law. Besides, copy of the order be also marked to the concerned Commissioner of Income Tax, Zone-22, 3rd floor, Tower No.6, Vashi Railway Station Complex, Vashi 400 703 for information and necessary action. 8. Application allowed on the above terms. (A.A.SAYED, J) (A.M.KHANWILKAR, J)