: 1 : REVN-58-11=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.58 OF 2011 IN PETITION NO. E-1 OF 2007 Hutoxi Adi Kapadia nee Hutoxi Framroze Buhariwalla .. Applicant / (Orig. Petitioner) v/s. The State of Maharashtra & Anr. .. Respondents ......... Ms. Sharmila Deshmukh for the applicant Mrs. Manjula Rao for the respondents ......... CORAM : R.Y.GANOO, J. DATE : 5th APRIL, 2011 P.C. : 1. Rule. Rule made returnable forthwith. Learned Counsel for respondents waives service. By consent taken up for final hearing. 2. The respondent no.2 herein had filed proceedings in the Parsi Chief Matrimonial Court at Bombay for divorce under Section 32-B of the Parsi Marriage and Divorce Act, 1936. In the said proceedings, consent terms were filed and a sum of Rs.3,00,000/- was provided for : 2 : REVN-58-11=.sxw maintenance of the minor son Jamshyd. The petitioner did receive the said amount and thereafter the petitioner filed an application under Section 125 of Cr.P.C. so as to get maintenance for son Jamshyd. That application was filed in the Family Court at Bombay being Petition No.E-1 of 2007. The learned Judge of the Family Court decided the said application by judgment and order dated 15th July, 2010. The learned Judge of the Family Court fixed the quantum of maintenance @ Rs. 15,000/- per month for the son. The learned Judge of the Family Court came to the conclusion that the petitioner-wife will have to share the said burden to the extent of Rs.7,500/-. So far as the respondent no.2 is concerned, learned Judge of the Family Court, no doubt, came to the conclusion that a sum of Rs.7,500/- should be paid by the respondent no.2. Learned Judge gave credit of Rs.2,500/- per month by calculating it as interest which the petitioner would be earning on the sum of Rs. 3,00,000/-, which was already paid at the time of divorce proceedings and the learned Judge directed the respondent no.2 to pay to the petitioner a sum of Rs.5,000/- so that husband would be in a way taking responsibility to the tune of Rs.7,500/-. This order dated 15th July, 2010 directing respondent no.2 to pay a sum of Rs.5,000/- is challenged. 3. Learned Counsel appearing on behalf of the petitioner took me through the impugned order and submitted that respondent no.2 did : 3 : REVN-58-11=.sxw not produce salary certificate / salary slips and, therefore, the correct salary received by the respondent no.2 would not come before the Court. She no doubt pointed out that the respondent no.2 in the course of evidence stated that his salary is to the tune of Rs.70,000/- per month. According to learned Counsel for the petitioner if the respondent no.2 would have produced the salary certificate and / or salary slips, the learned Judge of the Family Court would have been able to arrive at exact amount of income earned by the respondent no.2 and then it would have been proper for the learned Judge to arrive at a figure equivalent to the monthly earnings of the respondent no.2. According to learned Counsel for the petitioner in the absence of salary certificate / slips, the exercise carried out by the learned Judge barely on the basis of the word of the respondent no.2 in the evidence is improper and it was necessary for the learned Judge to take steps to see that the respondent no.2 produces the salary certificate / slips. 4. Learned Counsel appearing on behalf of the respondent no.2 submitted that adequate material was placed before the learned Judge and the learned Judge has arrived at proper conclusion and no interference is required in the impugned order. 5. After having gone through the impugned order, it is clear that the : 4 : REVN-58-11=.sxw respondent no.2 did not produce Salary slips. At this stage, I do not wish to go into factual aspects and / or to appreciate the evidence given by the respondent no.2. Fact remains that the salary certificate / slips is not produced by the respondent no.2. In the absence of salary certificate / slip, the correct monthly income of the respondent no.2 has remained to be gone into. No doubt, the respondent no.2 has stated in the evidence that he is receiving salary of Rs.70,000/- per month. There is no other document produced before the Court to test whether this evidence is true or false. In such a situation, I am of the view that in the interest of the minor child, it would be proper if the impugned order is set aside and the respondent no.2 is directed to enter into the witness box, give additional evidence if he wants, also produce salary slips for the relevant period i.e. from the date of the application till the date he enters into the box for giving evidence so that proper record would be before the Court. The petitioner would be able to cross-exam the respondent no.2 on all counts. The respondent no.2 will also have to produce, his list of investments and assets which he holds other than the salary. Learned Judge shall give all opportunities to both the parties to place appropriate material as regards the income of the respondent no.2 and thereafter he will hear the parties through their counsels and pass an appropriate orders. Needless to mention that till the final order is passed as indicated above, order dated 15th July, 2010 directing the : 5 : REVN-58-11=.sxw respondent no.2 to pay a sum of Rs.5,000/- per month as an interim arrangement will operate. Learned Counsel on both sides have stated to this Court that they will co-operate with the learned Judge for early disposal of the matter. Hence, the said application will have to be disposed of by 31st August, 2011. In view of the above, following order is passed to dispose of this petition. ORDER (I) Order dated 15th July, 2010 passed in Petition No.E-1 of 2007 is set aside. Petition No.E-1 of 2007 is restored to the file of the Family Court No.VII. The petitioner and the respondent no.2 shall appear before the learned Judge of the Family Court No.VII and place before him copy of this order so that learned Judge of the Family Court shall fix the date of hearing as per this order. (II) The respondent no.2 shall give appropriate evidence before the learned Judge so as to place before the Court all particulars about his income. He shall produce salary slips for the relevant period. He shall also produce statement regarding his assets and investments. The petitioner will be able to cross-examine the respondent no.2 on all counts and after this exercise is carried : 6 : REVN-58-11=.sxw out, learned Counsel on both sides will address to the Court a fresh. Learned Judge of the Family Court shall pass an order in said Petition No.E-1 of 2007 on merits a fresh. Till final order is passed, respondent no.2 shall pay to the petitioner every month a sum of Rs.5,000/- towards the maintenance of the son Jamshyd as if order dated 15th July, 2010 is not set aside. This payment shall operate as an interim payment subject to accounts. There shall be no order as to costs. (R.Y.GANOO, J.)