* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 234 OF 2009 Saifabdul Hamid Tumbi ......Applicant V/s. Shaban D/o.Abu Bakar Chandiwala & Ors. ......Respondents ======== Mrs.Uma Wagle, adv.for the applicant. Ms.Manjiri Parasni, adv.for respondents. Mr.Y.S.Shinde, APP for State. CORAM : SMT.R.P.SONDURBALDOTA, J. DATED : 6TH AUGUST, 2009. P.C. :- 1. Heard counsels for both sides. 2. This Criminal Revision Application takes exception to the interim order dated 13th August, 2008 passed by the Family Court in the proceedings for maintenance filed under Section 125 Cr.P.C. The appellant husband and the respondent herein are muslim by religion. According to the applicant, he has already given divorce to respondent no.1 by tripple talaq on 14th August, 2007 and therefore she is not entitled to maintenance. Both have a son of about two and half years who is staying with respondent no.1. By the impugned order, the * 2 * family court awarded maintenance of Rs.10,000/- to respondent no.1 and an equal amount to the child. It is contended by the applicant that the amount of maintenance awarded by the Family Court is an arbitrary exercise and not as per the evidence produced by the parties before the court. It is also contended that the learned Judge has considered extraneous circumstances while fixing the amount. 3. Respondent no.1 in her application for interim reliefs alleged that the applicant belongs to an affluent family and also earns handsome amount. According to her, he carries on the business of import and export. He owns large property and has a farm house at Karjat. He is a members of prestigious Clubs like Welingdon Club, Otters Club. He has employed several persons and has a life style of a rich person. Therefore, the amount of maintenance awarded of Rs. 10,000/- to respondent no.1 and Rs.10,000/- to the child is fair and reasonable. 4. Perusal of the impugned order shows that the Family Court after narrating the facts of the case and the rival contentions, has observed at paragraph 16 that the applicant is the owner of the land at Karjat of which a part has been converted for non-agricultural use. The amount of stridhan which was given to respondent no.1 and which has been since returned to her was of about Rs.25,00,000/-. It has further observed that the parties are from higher income groups. With these observations, the learned Judge inferred that the Balance Sheet filed by the applicant alongwith income tax returns may not depict the exact income of the applicant. * 3 * 5. With the assistance of the learned advocate of both the sides, I have gone through the documents relied upon by the parties. In her application for interim maintenance, the respondent has contended that the applicant carries on business of corporate gifting in the name and style of Shahz Enterprises connected with Blue Waters and earns handsomely Rs.1.20 lakhs per month. He is said to be using only branded shirts, shoes and perfumes. He uses imported cameras, handicam etc. He has several bank credit cards and investments. The residential premises in which he is residing is located at Santacruz and admeasures about 1000 sq.feet. It is also alleged that he has bank accounts in several banks like ICICI Bank, Bank of Baroda, HSBC Bank etc. It is not disputed that the applicant carries on business of gift articles in the name of Shahz Enterprises. He has however filed his statement of accounts furnished to the income-tax authorities which does not support the contention of high income as alleged by respondent no.1. Ms. Parasnis, learned counsel for respondent no.1 however correctly submits that the statement of accounts filed by the applicant alongwith the income-tax returns should not be taken as depicting the correct financial picture of the applicant. Even if some concession is to be given, considering the common knowledge that the income tax returns and the statement of accounts filed alongwith income tax returns in case of businessmen and professionals do not generally depict the correct financial image of the person, the concession to be given therefor cannot reach the claim made by respondent no.1. As per the Profit and Loss Account for the year end * 4 * 31st March, 2008 the gross profit earned by the applicant for that year is Rs.19,67,207.87/-. After deduction of several expenses, the net profit is shown of Rs.1,94,030.99/-. The Balance sheet as on 31st March 2007 shows captial account of the applicant in his business to be of Rs.8,149,000.99/-. 6. It is the case of respondent no.1 that the applicant earns substantial income from the immovable property at Karjat. According to her, he carries on activity of agriculture, fish breeding, nursery, poultry farming, cattle farming and wood and grass trading from the property at Karjat. The total income said to have earned from the property at Karjat is around Rs.3.00 lacs per month. Respondent no.1 has produced photographs of the property at Karjat. The photographs show a farm house on the property and small patches of land used for growing vegetables. There is a photoghraph of a tank but there is hardly any activity of fish breeding indicated in it. It is the contention of the applicant that the property at Karjat does not exclusively belong to him. It is the property of his family and it hardly generates any income. Prima-facie there appears substance in the contention of the applicant. 7. It is next alleged that the applicant is the member of Otters Club and visits it atleast four to five times a month, each time spending approximately Rs.900/-. Respondent no.1, however, during the course of arguments admitted that the membership of the applicant was dependent membership being dependent of respondent no.1. She is the original member of the Club and the applicant had got the membership * 5 * being her husband. It is seen that he has since discontinued his membership. He however happens to be the member of the Welingdon Club. 8. The applicant alleges that the amount of maintenance at Rs. 10,000/- fixed by the family court for respondent no.1 is not justifiable. Firstly, because she being a divorced wife is not entitled to maintenance. This contention needs to be considered at the time of final hearing. Secondly that she herself being a web designer and also having taken training in catering has been earning a good income. The applicant has produced a couple of receipts issued by respondent no.1 for having received her charges for web designing. He further alleges that the applicant infact owns a business which is disputed by respondent no.1. According to her, she has been merely assisting her brother in his business. The facts indicate that respondent no.1 has been running some activity which generates income for her, which ought to have been taken into account by the learned Judge while awarding maintenance of Rs.10,000/- to her. Unfortunately, all the above aspects have not been discussed by the learned Judge at all in the impugned order. In my opinion, after considering all the aspects the amount of maintenance payable to the wife can be of Rs. 7,000/- per month. 9. As regards the maintenance to the child aged about three years, the amount of Rs.10,000/- would definitely be on the higher side considering the status of the applicant. Respondent no.1 claims that he has been admitted to the school where the monthly fees of the * 6 * child are of Rs.3,500/-. Respondent no.1 claims to have given deposit of Rs.25,000/- to the school at the time of admission. The applicant claims that the school to which respondent no.1 has admitted the child is one of the expensive schools in the area and there are several other good schools which are within the financial reach of the applicant. Considering the age of the child, in my opinion, compensation of Rs.5,000/- for his interim maintenance would be fair and reasonable. In the circumstances, the impugned order dated 13th August 2008 is set aside. The applicant is directed to pay interim maintenance of Rs.7,000/- to respondent no.1 and Rs.5,000/- to respondent no.2 pending the hearing and final disposal of the main application under Section 125 CrPC. The applicant has paid a sum of Rs.75,000/-. The Family Court shall give due credit for the same in terms of the present interim order. Needless to mention that the order of maintenance is never a permanent order and is always subject to review as and when there is change in the circumstances. 10. Mrs.Wagle, the learned counsel for the applicant makes a statement that the applicant shall deposit 50% of the arrears of maintenance at the rate mentioned above within a period of one week from today and the balance amount within a period of two weeks thereafter. With this, the revision application stands disposed off. [SMT.R.P.SONDURBALDOTA, J]