The Court dismissed the criminal revision challenging a maintenance award of Rs. 3,000/- per month to the wife and Rs. 1,000/- to the daughter. The Court rejected claims of insufficient income, finding the applicant's evidence regarding earnings outdated and unreliable.
The criminal revision filed against the maintenance order is dismissed.
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Court No. - 49
Case :- CRIMINAL REVISION No. - 1038 of 2018
Revisionist :- Badruddin Shamsi Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Ved Mani Sharma Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
Heard learned counsel for the applicant and learned A.G.A. for the State.
The present criminal revision has been filed against the order dated 11.01.2018 passed by the Family Court/Fast Track Court No. 1, Bareilly in Criminal Misc. Case No. 371 of 2016 (Shabana Bee @ Junaira Hashmi Vs. Badruddin Shamsi), under Section 125 Cr.P.C., Police Station- Qilla, District- Bareilly, by which maintenance allowance @ Rs. 3,000/- per month to the opposite party no. 2 and @ Rs. 1,000/- per month to her daughter has been awarded by the learned court below from the date of that order.
Learned counsel for the applicant submits that the award of monthly maintenance allowance @ 3,000/- per month to the opposite party no. 2 is excessive, considering the income of the applicant and the fact that the opposite party no. 2 herself holds a masters degree.
With respect to his own earning, it is submitted that the applicant is running a grocery store from which he is earning about Rs. 70,000/- per annum. In support of his contention, the applicant has annexed a certificate dated 31.07.2017 issued by the Income Tax Officer - 2(4), Pilibhit, which certificate is also stated to have been filed before the learned Court below.
Perusal of the said certificate only reveals the facts with respect to the A.Ys. 2002-03, 2003-04 and 2004-05. In contrast, the application under Section 125 Cr.P.C. had been filed by the opposite party no 2 on 06.04.2016 and the impugned order providing for maintenance allowance has been passed on 11.01.2018.
In normal course, any business may be expected to experience upward growth along with income of the proprietor derived therefrom. The fact that the applicant did not file any certificate in proof of his earnings for the relevant period but has chosen to file evidence which was relevant as to facts twelve to fourteen years ago, without other pleadings that his income had reduced
over the years, the applicant cannot be heard to say that his earnings are only 70,000/- per annum as on date.
Then, reliance has been placed on a certificate issued by the Tehsildar, Pilibhit dated 04.08.2016 wherein it has been certified that the income of the applicant is Rs. 60,000/- per annum. The said certificate does not inspire confidence, in view of the fact that the income of the applicant is a subject matter of assessment of Income Tax Act, 1961, as is also admitted to the applicant. In absence of any proof of his income as disclosed before the income tax authority, reliance cannot be placed on the certificate issued by the Tehsildar. It was for the applicant to have disclosed his income as per the latest income tax returns. That having not been done, no benefit can be derived from the certificate issued by the Tehsildar.
Then, it is also seen that the maintenance allowance awarded is minimal to preserve human life and dignity and to prevent vagrancy.
In this regard, it is seen, undisputedly, the applicant is an able bodied person and only suffers from speech disorder. Considering the fact that admittedly, the applicant is running a grocery store, it cannot be reasoned, because of his speech disorder, the applicant's earning would in any way be reduced or adversely affected.
Further, the learned Court below has made the award from the date of the order and not from the date of the application. For that reason also, no further concession can be made in the order passed by the learned Court below.
As to the educational qualification of the opposite party no. 2, it may not be disputed that she holds a master's degree. However, at present, there does not exist any evidence to support the argument advanced by learned counsel for the applicant that the opposite party no. 2 being thus educationally qualified is also having a substantial earning to maintain herself.
Leaving it open to the applicant to file such an application, at such stage, supported with such evidence as may be available to the applicant seeking modification of the order under Section 127 Cr.P.C., if an when need arises, the present revision lacks merit and is dismissed .
Order Date :- 4.4.2018 A. Singh
2 issues framed by the court
Whether the maintenance award of Rs. 3,000/- per month is excessive considering the applicant's income and the wife's education.
Whether the applicant's loss of trade due to speech disorder justifies a reduction in maintenance.
2 provisions across 1 enactments
State Of U.P.
Shabana Bee @ Junaira Hashmi
Saumitra Dayal Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
