Crl. Misc. No. M- 33360 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M- 33360 of 2009 (O&M) Date of decision: April 1, 2010 Antarpreet Singh ...Petitioner Versus Anupreet Kaur and another ...Respondents CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Sandeep Chhabra, Advocate, for the petitioner Mr. Manoj Kaushik, Advocate, for the respondents. GURDEV SINGH, J. The petitioner-Antarpreet Singh son of Bhupinder Singh, has filed this petition under Section 482 of the Criminal Procedure Code (hereinafter referred to as 'the Code'), invoking inherent jurisdiction of this Court, for quashing of the order dated 21.5.2009 passed by the Additional Sessions Judge, Faridabad, allowing the revision filed by the respondents against the order dated 3.12.2007 passed by the Additional Chief Judicial Magistrate, Faridabad, thereby enhancing the quantum of interim maintenance. The facts, in brief, are that Anupreet Kaur-respondent No.1 was married to the petitioner and from that wedlock Harkirat Kaur-respondent No.2 was born. Both the respondents filed an application under Section 125 of the Code, for grant of maintenance allowance against the petitioner. In Crl. Misc. No. M- 33360 of 2009 2 that application, they filed an application for interim maintenance, which was allowed at the rate of Rs. 2,000/- per month by the Additional Chief Judicial Magistrate, Faridabad, vide order dated 3.12.2007. The respondents preferred a revision against that order, which was accepted by the Additional Sessions Judge, vide order dated 21.5.2009 and the interim maintenance allowance was enhanced to Rs. 4,000/- per month in respect of respondent No.1 and Rs. 2,000/- per month in respect of respondent No.2. Notice of the petition was given to the respondents. I have heard learned counsel for both the sides. It has been submitted by learned counsel for the petitioner that the revision was not competent against the order awarding interim maintenance, as it was interlocutory order. That itself is a ground for setting aside the impugned order. He also submitted that the interim maintenance awarded to the respondents is not in consonance with the principles laid down in that regard. As per the documents placed on record before the Additional Chief Judicial Magistrate, at the most, it can be said that the monthly income of the petitioner is Rs. 10,000/-. The quantum of maintenance should have been fixed, keeping in view that income. The maintenance allowance, so awarded to the respondents, is disproportionate to that income. In support of his contentions, he has relied upon the judgments in Des Raj Kalra versus Raj Rani 1997 (3) R.C.R. (Criminal) 532 and Vijay Kumar versus State of Rajasthan and another 2004 (2) Cri. C.C. 595. On the other hand, it was contended by learned counsel for the respondents that the order awarding interim maintenance is not an interlocutory order and, as such, the revision was competent before the court Crl. Misc. No. M- 33360 of 2009 3 of Session and the order passed, while deciding that revision petition, cannot be set aside on that ground. He also contended that reasonable maintenance allowance was allowed to the respondents, after taking into consideration the income of the petitioner and there is no ground to make any variance in that maintenance allowance. The law is well settled that an order awarding maintenance allowance is not an interlocutory order. Reference in that regard can be made to the judgment of the Division Bench of this Court in Sunil Kumar Sabharwal versus Mrs. Neelam Sabharwal and another 1991 (10) Punjab Law Reporter 307. The judgment given by the Division Bench is to be relied upon in preference to the judgment cited by the learned counsel for the petitioner, as those judgments are of learned Single Benches. The Additional Chief Judicial Magistrate fixed the interim maintenance at the rate of Rs. 2,000/- per month, keeping in view the fact that the petitioner is to maintain his aged mother and that he has to incur expenses on business, which are liable to be deducted from his total income, disclosed in the income tax return. The revisional court, on the basis of the documents placed on record before the Additional Chief Judicial Magistrate, came to the conclusion that the mother of the petitioner herself submitted the income tax return for the year 2007-2008 in which she disclosed her income as Rs. 1,83,243/-. Therefore, it cannot be said that she was dependent upon the petitioner. A wrong finding was recorded by the Additional Chief Judicial Magistrate that the petitioner had been maintaining his mother. It was found that, as per the documents filed before the Additional Chief Judicial Magistrate, two income tax returns were submitted by the petitioner on 11.10.2007 and 31.1.2008 in which he Crl. Misc. No. M- 33360 of 2009 4 disclosed his income as Rs. 60,000/- and Rs. 1,15,000/- respectively. From those documents, it can easily be concluded that the income of the petitioner is not less than 1.15 lakhs per annum. That income is said to have been derived by him from the business. Judicial notice can be taken of the fact that businessman usually try to conceal their actual income. In such like circumstances, the courts are required to make some guess work in determining the income of the husband. The revisional court did not commit any illegality, while concluding that the monthly income of the petitioner is much more than Rs. 10,000/-. It may be said that the quantum of interim maintenance, so fixed by the revisional court, is somewhat on the higher side. After that maintenance allowance is deducted from the income of the petitioner, he is left with only about Rs. 4,000/-. Interim maintenance should have been fixed proportionate to the total income of the petitioner. His family consists of himself, his wife and a minor daughter. Thus, it can be said that this family consists of 2-1/2 units. Keeping in view that fact, interim maintenance awarded to respondent No. 1 is reduced to Rs. 3,500/- per month from Rs.4,000/- and that of respondent No.2 is reduced to Rs. 1,500/- from Rs. 2,000/- per month. In this case, notice of motion was issued subject to deposit of Rs. 7000/- as expenses to be paid to respondent No.1. Respondent No.1 is entitled to withdraw that amount, subject to the adjustment thereof towards the amount due to her from the petitioner. The petition is disposed of accordingly. April 1, 2010 (GURDEV SINGH ) prem JUDGE Crl. Misc. No. M- 33360 of 2009 5