1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.400 OF 2008 Upendranath Chandrabhushan Chaube Applicant versus Mrs.Neeta Upendranath Chaube and another Respondents Ms.Seema Sarnaik for the applicant. Ms.Veena Gowela i/b.Ms.Kokila Kalra, for respondent no.1. Rajesh More, APP for the State. CORAM : A.S.OKA, J. DATE : 2nd July 2009 JUDGEMENT :- 1. Submissions of the learned counsel appearing for the parties were heard earlier. An effort was made earlier to pursuade the parties to put an end to the dispute. Though the efforts were made by the learned counsel for the parties, the dispute could not be settled. 2. The applicant-husband has taken an exception to the order dated 23rd May 2008 passed by the learned Judge of the Family Court, at Mumbai by which the applicant-husband has been directed to pay maintenance of Rs.3,000/- per month each to the first respondent-wife and minor daughter. It is not in dispute that the 2 applicant is a medical practitioner. 3. It will be necessary to refer to the facts of the case. The marriage between the applicant and first respondent was solemnized on 24th June 1991. According to the case of the applicant he obtained B.A.M.S. degree in the year 1994. Various allegations have been made by the first respondent-wife in her application under section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the said Code"). It is stated that the applicant demanded dowry from the parents of first respondent and the parents gave dowry amount of Rs.2.50 lakhs. The first respondent gave a birth to a female child on 31st August 1992. The allegation made by the first respondent-wife is that the applicant deserted her and even tried to drive away the first respondent from the matrimonial home. The allegation is that the applicant-husband neglected to maintain the first respondent her the daughter. 4. The application was contested by the Applicant raising various objections. Reliance was placed on order of interim maintenance passed by the Family Court in a divorce proceeding filed by him. It is pointed out that the divorce was claimed on the ground of cruelty. It is contended that in the said proceedings an application for interim maintenance made by the wife was dismissed. A contention is raised in the reply that though the applicant is a qualified doctor, due to the difficulties created by the first respondent, he could not 3 practice. His contention is that at present he is helping his father who was running a dispensary. The applicant, therefore, prayed for dismissal of the application. 5. The parties adduced evidence. The applicant examined himself and his father as witnesses. Various contentions have been raised by the counsel for the revision applicant. It is submitted that there is nothing placed on record to show that the applicant has any source of income. She submitted that the evidence on record shows that his father is running a dispensary and the applicant is merely helping him. It is pointed out that there is material on record to show that the first respondent was running a beauty parlour business and she has sufficient income. The submission of the learned counsel for the applicant is that in absence of any evidence regarding the income of the applicant, the learned Judge of the Family Court could not have granted the maintenance. There is another submission made by the learned learned counsel appearing for the applicant. He has invited my attention to the amendment to Section 125 of the said Code made by Maharashtra Act No.21 of 1999. She pointed out that by the said Maharashtra Act, the upper ceiling on the amount of maintenance fixed by the Central Act at Rs. 500/- per month has been enhanced to Rs.1,500/- per month. Her submission is that in view of the fact that the amendment made by the said Maharashtra Act No.21 of 1999 is still in force, relying upon the subsequent Central amendment made by the Act No.50 of 2001, 4 maintenance exceeding a sum of Rs.1,500/- per month could not have been granted. She, therefore, submitted that the impugned order deserves to be set aside and in any event the maintenance amount cannot exceed Rs.1,500/- per month. The learned counsel for the first respondent supported the impugned judgement and order. 7. I have carefully considered the submissions. I have also perused the evidence adduced by the parties. The first respondent- wife examined herself. She has made an allegation of cruelty and neglect on the part of the applicant-husband. According to her, the applicant was a medical practitioner who was earning Rs.25,000/- p.m.. A suggestion was given to the first respondent that in the earlier application filed in this Court she had admitted that she was earning Rs.4,500/- p.m. from beauty parlour business. She denied the correctness of the said suggestion. The first respondent also examined her brother to prove the allegation that a sum of Rs.2.50 lakhs was paid by the parents of the first respondent to the applicant as a dowry. 8. The applicant also examined himself. The applicant alleged that the first respondent started quarreling with him and his mother. His father allowed him to reside in his own flat with a hope that the behaviour of the first respondent will improve. However, she did not improve. It is stated that he had filed a petition for divorce in the 5 Family Court and the said petition has been dismissed. 9. The applicant was cross-examined by the advocate for the first respondent. He stated that there was one Indica Car standing in his name but the said car was purchased by his father in his name. He admitted that he was not having any documentary evidence to show that the first respondent was earning Rs.30,000/- out of the alleged business carried on by her. He denied the suggestion that he was holding a flat at Kandivali in his name. In the cross-examination he was shown photographs of the board displayed on a clinic. He stated that though the photographs show his name along with his father's name, the clinic is not owned by him. However, he accepted that there is a board displayed as shown in the photograph of the clinic. He was shown a photograph showing that his name appears against Flat No.704. He stated that he was not aware as to how his name was appearing there. He stated that he was not a member of the society in which the said flat is situated. He stated that Flat No. 703 shows the name of his father. He denied that he had given Flat No.704 on rent to one Nikhil Naik and his father had also given his flat on rent. 10. The father of the applicant was examined who stated that his dispensary was at Jai Hind Nagar, at Khar, Mumbai and the applicant was practicing with him. He stated that the said dispensary was owned by him. He stated that the applicant examines the patients 6 and he assists him. He stated that he is paying some amount for expenditure to the applicant. In the cross-examination he stated that he had purchased an Indica Car for the applicant by taking loan. He denied that he had a flat standing jointly in his name along with the applicant. He denied that his son was a Lecturer in a college at Nalasopara. 11. Apart from this evidence, a witness summons was issued to the co-operative society in which flat nos.703 and 704 were situated. An agreement for sale at Exhibit-32 was brought on record from the office bearers of the society along with documents at Exhibit-31. The said agreement shows that during pendency of the petition, on 10th March 2008, Flat No.704 was sold by the applicant and the sale price has been shown to Rs.32.00 lakhs. 12. Considering the aforesaid evidence, the learned Judge of the Family Court had observed that it is not possible to believe that a person who was holding a flat worth Rs.32.00 lakhs was not earning anything. It is pertinent to note that the applicant denied in his evidence that he was holding the said flat no.704. However, an agreement for sale executed by him in respect of said flat during pendency of the said application under section 125 of the said Code was brought on record by issuing witness summons to the Chairman and Secretary of the concerned co-operative society in which the flat was situated. The said document completely falsifies 7 the case of the applicant that he was not holding the said flat. The said agreement also shows that the sale price was Rs.32.00 lakhs. Apart from this, what is considered by the learned Judge of the Family Court is that the applicant is a qualified doctor and he obtained the said qualification in the year 1994. An Indica Car stands in his name though his father claimed that he had acquired the said car for the benefit of his son. 13. Apart from all this, no evidence was adduced by the applicant to show that the first respondent-wife was earning any income. The alleged pleading in the earlier application that the first respondent- wife was earning Rs.5,000/- per month was not brought on record of the Family Court. Considering all these aspects, monthly maintenance of Rs.3,000/- each fixed by the Family Court for the wife and the daughter cannot be said to be an excessive or exorbitant. This figure was arrived at after considering the aforesaid evidence on record and especially the fact that in the year 2008 the applicant has received a consideration of Rs.32.00 lakhs on account of the sale of his flat. Therefore, it is difficult to find fault with the quantum of maintenance. 14. Now coming to the last submission made by the counsel for the applicant, It must be stated here that the State amendment was brought into force with effect from 20th April 1999 by the Maharashtra Act 21 of 1999. By the said amendment, the upper 8 limit of Rupees Five Hundred in sub-section 1 of Section 125 of the said Code in the Central Act was amended and was enhanced to Rs.One Thousand Five Hundred. By a subsequent Central amendment brought into force with effect from 24th September 2001 by Act No.50 of 2001, the upper limit in sub-section 1 of Section 125 has been completely removed. Therefore, the state amendment to sub-section (1) of Section 125 of the said Code is repugnant to the subsequent Central amendment. Therefore, the state amendment of the year 1999 is void to that extent in view of Article 254(1) of the Constitution of India. It is, therefore, obvious that the Central Government amendment will prevail and there is no upper ceiling on the amount of maintenance. 15. Considering the aforesaid discussion, there is no merit in the criminal revision application and the same is rejected. 16. At this stage learned counsel for the applicant prays for continuation of ad-interim relief which was operative from 16th October 2008. The said prayer is opposed by the counsel for first respondent as the said order is operative from quite some time. The same will continue to operate for a period of eight weeks from today. (A.S.OKA, J.)