1 WP.5513.2011.sxw mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION WRIT PETITION NO. 5513 OF 2011 Zoher N. Aga ...Petitioner Vs. Rehana Z. Aga ...Respondent Mr. Rajendra Sorankar, Advocate for the Petitioner None for the Respondent CORAM : SMT. ROSHAN DALVI, J. DATED : 26TH JULY, 2011 P.C. : 1. The Petitioner husband has challenged the order of interim maintenance passed by the Family Court, Bandra on 21st May 2011. Another order rejecting the Applicant’s application challenging the maintainability of the Petition filed by the Respondent wife under the Dissolution of Muslim Marriages Act, 1939 is not challenged. The Petitioner states that the Petition is maintainable in Court and the Petitioner inter alia has applied for the relief of direction to the trial Court to decide the Petition immediately. 2. The only aspect to be considered by the trial Court was the aspect of interim maintenance. The Petitioner is admittedly employed in J.P. Morgan India Pvt. Ltd., at its office at Powai. The wife claimed that his salary was Rs.1.5 lakhs per month. The Petitioner states that that was untrue. It is for the Petitioner to produce the documents relating to his own salary because that is to the knowledge of the Petitioner and not others. The onus of proving the fact to the specific knowledge of the Petitioner is only on the Petitioner under 2 WP.5513.2011.sxw Section 106 of the Indian Evidence Act (See Tabassum Shaikh Vs. Shaikh S.J. Shaikh I (2000) DMC 95 and in the case of Haseena Vs. Abdul Jaleel II(2007) DMC 215). Hence if the Petitioner fails to produce his documentary evidence viz., the salary slips to prove this fact, the Court would be required to proceed accepting the contention of the Respondent wife as the party having special knowledge of the fact required to be proved by him, failed to do so. In fact, adverse inference can be drawn by the Court for failure to produce the best evidence that could be (See AIR 1985 Gujarat 187 Maganbhai Chhotubhai Patel Vs. Maniben) and (AIR 1988 Calcutta 98 Chitra Sengupta Vs. Dhruba Jyoti Sengupta). In fact it has been held since the early last century by the Privy Council that the documents in possession of a party is the best evidence that can be produced. It can be produced by that party alone. Non- production of such evidence must raise adverse inference, if it is sought to be suppressed (See 1917 44 IA 98 at page 103 Murugesam Pillai Vs. Manickavasaka Pandara and AIR 1929 PC 95 Rameshwar Singh Vs. Bajit Lal Pathak. 3. The Petitioner has produced copies of his salary slips in this Court as annexed to the Petition. The salary slips show the account number of the Petitioner, but not his name. The salary slips do not show the month and the year of the salary. Nevertheless at present the salary slips are accepted as true. The first two salary slips show the Petitioner having received Rs.80,000/- p.m as his net salary after all deductions. The next two salary slips show the increment in the salary and the Petitioner husband having received Rs.86,000/-p.m as his net salary. 3 WP.5513.2011.sxw 4. The learned Judge has granted maintenance of Rs.15000/-p.m to the wife and Rs.10,000/- p.m to the child. It is contended that no maintenance would be payable to the wife under the aforesaid Muslim Law. The Court would have jurisdiction under the general law applicable to all Indians under Section 125 of the Cr.P.C to decide the order of interim maintenance. The application filed under one Act can be treated as application under another law. It is for the Court to see the substance of the application and not its format. 5. The Court has set out the case of the Respondent wife about the immovable properties owned by the Petitioner as also the other income therefrom and the income of his parents. Those aspects may not be and have not been considered by the learned trial Judge while coming to the conclusion of the application of interim maintenance. The learned Judge has considered the income of the father and mother of the husband only to see that the husband does not have other family members to support. The father was admittedly earning and hence his mother could have been dependent upon his father. 6. Even disregarding all of the other aspects and properties and considering only the admitted salary of the Respondent the order of interim maintenance is not only reasonable, but rather on the lower side. 7. The Writ Petition is totally devoid of merits and is dismissed. (SMT. ROSHAN DALVI, J.)