1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1722 OF 2009 Master Rahul s/o Niranjan Kulkarni Applicant through his Mother/guardian Mrs.Lucky Niranjan Kulkarni versus Niranjan Kamlakar Kulkarni Respondents and another Mrs.Lucky Niranjan Kulkarni, guardian/mother of applicant in person. Mr.Y.M.Nakhawa, APP for State. Ms.Jai Vaidye i/by H.J.Kandarkar with Nisha Parab for respondent no.1. CORAM : A.S.OKA, J. DATE OF RESERVING THE JUDGEMENT : 16th July 2009 DATE OF PRONOUNCING THE JUDGEMENT : 28th July 2009 JUDGEMENT :- 1. By this criminal application the applicant-wife on behalf of her minor son has impugned the order dated 4th March 2009 passed by the learned Judge of the Family Court by which the respondent-husband was directed to pay interim maintenance of Rs.5,000/- per month till disposal of the petition under section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the said Code"). The applicant is seeking enhancement in the interim maintenance amount. 2 2. Both, the wife and the husband are gainfully employed. The marriage between them was solemnized on 24th December 1997. The date of birth of the applicant is 9th November 1998. Thus, as on 9th November 2008, the applicant has completed the age of ten years. 3. The guardian of the applicant (mother) has taken me through the impugned order and other documents on record. She invited my attention to Exhibit-N to this application. She pointed out that she is required to spend a total amount of Rs.2.94,975/- per annum on the maintenance of the applicant. She pointed out that in Exhibit-N she has given all the particulars such as amounts payable towards school fees, private tuition fees, football fees, swimming fees, fees of instructor of swimming, drawing fees, riffle club charges and riffle shooting fees, fees of the instructor for riffle shooting, creative classes, Piano class etc.. The figure of Rs. 2,94,975/- includes the daily snacks, driver's salary, petrol charges etc.. She submitted that there is documentary evidence in support of each and every item set out in Exhibit-N. She stated that admittedly the respondent-husband was working as a Manager (Logistics) with Bislery International Pvt.Ltd. and was drawing salary of more than Rs.45,000/- p.m.. She pointed out that the respondent claims that now he is working as Senior Dispatch executive with Avon Corporation Limited and drawing Rs.15,000/- per month. She submitted that it is not possible to accept the case of the respondent that he is employed at Avon Corporation Limited and is earning only a sum of Rs.15,000/- per month. She pointed out that 3 the Family Court has granted very meager amount and the applicant was entitled to interim maintenance @ Rs.20,000/- per month. 4. It must be stated here that the wife has given inspection of certain original documents to the counsel for the respondent. The counsel for the respondent submitted that even according to the case of the wife she is highly qualified. She pointed out that even the wife has a large income. She submitted that it is impossible to accept that ten year old child finds time to get involved in so many activities such as football, swimming, drawing, riffle shooting, piano class etc.. She submitted that in any event it is not in the interest of the child that he is burdened with such activities. She submitted that in the chart at Exhibit-N even petrol expenses of Rs. 72,000/- and driver's salary of Rs.72,000/- has been included. She submitted that the documents have been placed on record to show the net salary of the respondent is to the extent of Rs.13,000/- to Rs.14,000/- p.m.. She submitted that the wife is earning much more than the respondent-husband and, therefore, the amount of Rs.5,000/- per month fixed by the Family Court is reasonable. The mother of the applicant appearing in person submitted that right from the day one the applicant- son is taking education in Bombay Scottish School and every day he has been going to the school by car. She submitted that as she is forced to stay at Coloba, she is required to provide a car to her son and naturally she is required to engage the services of a separate driver for the benefit of her son. 4 5. I have given careful consideration to the submissions. The scope of proceedings under section 125 of the said Code is well settled. The remedy under section 125 is a summary remedy. Summary procedure is to be adopted while deciding the application under section 125 of the said Code. In this application we are concerned only with fixing a reasonable amount by way of interim maintenance. At this stage a detailed scrutiny of the material and evidence on record is not contemplated. 6. A perusal of chart at Exhibit-N annexed to this application shows that various amounts are required to be paid on account of school fees, private tution (maths), private tution (five subjects), private tution (hindi and marathi), football fees, swimming, personal instructor for swimming, drawing, rifle club-bullet and pallet charges, fifle club fees, personal instructor for rifle shooting, creative classes, piano class, daily snacks and drinks, driver salary, petrol charges and miscellaneous expenses. There are documents placed on record in support of almost all fifteen aforesaid items except three items. As far as private tution in Hindi and Marathi is concerned, it is claimed that from February 2009 to May 2009 the amount has been paid by cheques. It is stated that as far as item of creative classes is concerned, cheque payments have been made. As far as item of piano class is concerned, it is stated that from April 2009 cheque payment has been made. Miscellaneous expenses have been claimed of Rs.6,000/-. The petrol expenses have been claimed at Rs.6,000/- per month and driver's salary is claimed at Rs.6,000/- per month. For some of the activities like creative classes, there does not appear to be recurring 5 expenditure and in fact yearly expenditure of Rs.2,000/- has been claimed. At this stage there is no material on record to show that a driver has been engaged exclusively for the purposes of dropping the child to the school by car and bringing him back. The claim of yearly expenditure of Rs.1,44,000/- towards salary of driver and petrol, at this stage, appear to be exorbitant. All this will have to be scrutinized and considered when the parties lead evidence. Taking a broad view of the matter, at this stage, total expenditure incurred on the maintenance of the child can be taken approximately @ Rs.2.00 lakhs per year. Thus, monthly expenditure will be Rs.16,666/-. 7. Both the wife and the husband are earning. In paragraph no.11 of the impugned order the learned Judge of the Family Court has observed that the mother is earning Rs.21,000/- per month. The learned Judge has noted that admittedly the respondent was in the employment at the time of filing of the petition and was earning Rs.47,000/- per month. The learned Judge has also recorded a finding that till filing of the petition the respondent has been holding various posts and drawing salary of Rs. 37,000/- to Rs.47,000/- per month. Though the respondent has now claimed that he is earning Rs.15,000/- per month, the earning capacity of the respondent is rightly taken by the Family Court at Rs.47,000/- per month. 8. As both wife and husband are earning, they will have to share the expenditure incurred on the maintenance of the child. Prima facie, the 6 expenditure incurred on maintenance of the applicant appears to be around Rs.16,666/- per month. Therefore, taking overall view of the matter, the interim maintenance will have to be fixed at Rs.8,000/- per month. 9. Hence, I pass following order :- (a) Criminal Application is partly allowed; (b) The impugned order is modified and it is directed that interim maintenance of Rs.8,000/- per month will be payable by the respondent instead of Rs.5,000/- per month. Time of four weeks is granted to deposit the arrears; (c) It is made clear that the observations made in this order are for limited purposes of considering the prayer for grant of interim maintenance. The Family Court will not be influenced by tentative findings recorded in this order while deciding the main application. The main application under section 125 of the said Code will be naturally decided on its own merits taking into consideration the evidence adduced by the parties and all questions in that behalf are expressly kept open. Hearing of the main application is expedited. (A.S.OKA, J.)