Copy Of Order Be Given Free Of Cost To The Applicant.” v. State Of Maharashtra & Anr. Reported In 2007 All Mr(Cri.) 1807, It Has Been Observed That The Income-Tax Returns Arethe Best Evidence In Proof Of Income. The Qu

GRM IN THE HIGH COURT OF JUDICATURE AT BOMBAYCRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2707 OF 2022Brijesh Shukla… PetitionerV/s.The State of Maharashtra & Ors.… Respondents … Respondents Mr. Brijesh Shukla, the Petitioner present in person.Mr. A. R. Patil, APP for the State/Respondent No. 1.Ms. Rimpal Trivedi, Adv. for Respondent no. 2. P.C. : CORAM:R. G. AVACHAT, J.DATED:JANUARY 3, 2023 1.The challenge in this writ petition, under Article 227 of theConstitution of India, is to the orders granting interimmaintenance and the residence in favour of the respondentsherein. 2.Heard. 3.The petitioner is a practicing advocate. His appearancesuggest that he is of good standing and repute as well. Be that asit may. The petitioner has married respondent no. 1 way back inJune 1998. The couple is blessed with three children, onedaughter and two sons. Both the petitioner and the respondent-wife started residing separately from each other since July 2017.The respondent-wife preferred an application under Section 12 ofthe Protection of Women from Domestic Violence Act, 2005 (for short “PWDVA”) for various reliefs. Inspite of service of notice ofthe said application, the petitioner did not mark his appearance inthe matter. The respondent-wife had also moved an applicationfor interim compensation. 4.The learned Metropolitan Magistrate, 34[th] Court, I/c. 72[nd]Court, Vikhroli, Mumbai vide his order dated 08/03/2019 allowedthe application for interim maintenance and residence order aswell. The order reads thus :- “ORDER 1. Application is partly allowed. 2. The respondent no. 1 do pay Rs. 40,000/- per monthto the applicant and three children (Rs. 10,000/- permonth to each) as interim maintenance from the date offiling of the application. 3. Respondents are hereby restrained from committingany kind of physical, verbal or emotional abuse onapplicant. 4. The respondent no. 1 is directed to secure analternative accommodation on rent for the applicantand her three children either in Virar or in Ghatkoparwithin a period of one month from the date ofknowledge of this order. Failure to do so, the applicantis at liberty to secure an alternative accommodation ofone room kitchen of her choice and the respondent no.1 shall pay the rent thereof on submission of rentreceipts by the applicant. 5. Copy of order be sent to the respondent no. 1 by RPAD. 6. Copy of order be sent to PI Tilak Nagar Police Stationto assist the applicant for implementation of this order. 7. Copy of order be given free of cost to the applicant.” 4. The respondent no. 1 is directed to secure analternative accommodation on rent for the applicantand her three children either in Virar or in Ghatkoparwithin a period of one month from the date ofknowledge of this order. Failure to do so, the applicantis at liberty to secure an alternative accommodation ofone room kitchen of her choice and the respondent no.1 shall pay the rent thereof on submission of rentreceipts by the applicant. 5. Copy of order be sent to the respondent no. 1 by RPAD. 6. Copy of order be sent to PI Tilak Nagar Police Stationto assist the applicant for implementation of this order. 7. Copy of order be given free of cost to the applicant.” 5.The petitioner would submit that the aforesaid order waspassed by the In-charge Court. The regular Court was on leave onthe given date. The matter was hurriedly taken up before the In-charge Court by 4.30 p.m. The Court concerned passed an ordermerely relying on the averments in the application. Therespondent-wife did not place on record any evidence in support ofher contentions as regards the petitioner’s financial status. Thepetitioner would further submit that in those days, his monthlyincome was very meager. Even both the petitioner andrespondent-wife left the residence of petitioner’s father and startedresiding in a premises taken on rent. The amount of maintenanceof Rs. 10,000/- per month to each of the applicants, was veryexcessive and grossly inconsistent with the income of petitioner.The petitioner, therefore, preferred an application under Section25(2) of PWDVA for modification of the order dated 08/03/2019.Along with the said application, he placed on record his Income-tax Returns for the relevant years. According to the petitioner, inthe judgment of this Court in the case of Smt. Anita w/o. AnandTambe Vs. State of Maharashtra & Anr. reported in 2007 ALL MR(Cri.) 1807, it has been observed that the Income-tax Returns arethe best evidence in proof of income. The quantum ofmaintenance should be 1/3rd of total income. The petitioner would further submit that the learned Magistrate was pleased toreject his application for modification vide order dated02/02/2021. According to him, it was in fact a case of change inthe circumstances calling for modification of the order dated08/03/2019. The Income-tax Returns of petitioner were notbefore the Court while the order granting interim maintenancewas passed. The petitioner would further submit that he againmoved an application Exhibit-25 for the similar relief underSection 25(2) of PWDVA. The said application was moved mainlyon the ground that the Hon’ble Apex Court in the case of RajneshVs. Neha and Another reported in (2021)2 Supreme Court Cases324 has given guidelines as regards grant of maintenance. Thepetitioner, therefore, requested the Court concerned to complywith the directions in the case of Rajnesh Vs. Neha and Another(supra) and pass the order on his application Exhibit-25. Thelearned Magistrate vide his order dated 24/12/2021 rejected thesaid application with cost of Rs. 10,000/-. According to thepetitioner, the learned Magistrate ought to have followed thedirections of Hon’ble Apex Court in the case of Rajnesh Vs. Nehaand Another (supra). 6.The petitioner took this Court to the averments in hispetition, affidavit-in reply and sur-rejoinder. He would furthersubmit that he purchased a Bolero Car in 2022. The Court isconcerned with the financial status of petitioner in the year 2017,when the orders granting interim maintenance and residence werepassed. The petitioner also availed a loan from the bank for 6.The petitioner took this Court to the averments in hispetition, affidavit-in reply and sur-rejoinder. He would furthersubmit that he purchased a Bolero Car in 2022. The Court isconcerned with the financial status of petitioner in the year 2017,when the orders granting interim maintenance and residence werepassed. The petitioner also availed a loan from the bank for purchase of a vehicle. The petitioner would further submit that hewas ready and willing to maintain his wife and children. He is alsoready to pay some amount towards their maintenance, but theamount awarded under the order impugned herein, is exorbitantand beyond his means to pay. The learned Advocate ultimatelyurged for allowing the petition with direction to the learnedMagistrate to decide his application for modification of the orderdated 08/03/2019 on its own merits, after affording him areasonable opportunity of hearing. 7.The learned Advocate for respondent-wife also took thisCourt through her affidavit-in-reply to ultimately urge for dismissalof the petition. 8.Considered the submissions advanced. Perused the orderimpugned herein. 9.The petitioner married the respondent-wife way back in June1998. The couple is blessed with three children. The children aretaking education. The respondents have been staying in Mumbai.One can take judicial note of cost of living in Mumbai. The recordindicates that the petitioner had been keeping watch on theproceedings. For over 16 months, he did not appear before theCourt of learned Metropolitan Magistrate, which was seized of thematter. According to him, on the day on which the order grantinginterim maintenance was passed, the regular Court was on leave.He therefore did not attend the Court. 10.It is true that the Court was on leave on the given date. Thematter was taken up before the In-charge Court. The petitioneralso pointed out a provision under Section 25 of PWDVA forduration and alteration, modification or revocation of the orderpassed in the application. As per Section 12(5) of PWDVA, thesaid application was expected to be decided within 60 days. Thepetitioner also submitted that he could not be blamed for delay inpassing the order on the application of respondent-wife. It is alsotrue that the order granting interim maintenance came to bepassed only on the basis of the averments made in the application.The petitioner must blame himself. Being a practicing advocate ofreasonable standing and good repute as well, he did not mark hisappearance in the proceedings. He was keeping watch on theprogress of matter. Section 29 of PWDVA provides for remedy ofAppeal, which reads thus :- “29. Appeal. - There shall lie an appeal to the Court ofSession within thirty days from the date of which theorder made by the Magistrate is served on the aggrievedperson or the respondent, as the case may be, whicheveris later.” 11. The phraseology of aforesaid provision would undoubtedlyindicate that an order granting or refusing to grant interimmaintenance is appealable one. The petitioner did not avail theremedy of appeal. He filed the writ petition. True, the petitionermay be justified in making an application under Section 25(2) ofPWDVA for modification of the order dated 08/03/2019. Forready reference, Section 25(2) of PWDVA reads thus :- “If the Magistrate, on receipt of an application from theaggrieved person or the respondent, is satisfied thatthere is a change in the circumstances requiringalteration, modification or revocation of any order madeunder this Act, he may, for reasons to be recorded inwriting pass such order, as he may deem appropriate.” 11. The phraseology of aforesaid provision would undoubtedlyindicate that an order granting or refusing to grant interimmaintenance is appealable one. The petitioner did not avail theremedy of appeal. He filed the writ petition. True, the petitionermay be justified in making an application under Section 25(2) ofPWDVA for modification of the order dated 08/03/2019. Forready reference, Section 25(2) of PWDVA reads thus :- “If the Magistrate, on receipt of an application from theaggrieved person or the respondent, is satisfied thatthere is a change in the circumstances requiringalteration, modification or revocation of any order madeunder this Act, he may, for reasons to be recorded inwriting pass such order, as he may deem appropriate.” 12.True, the Income-tax Returns of petitioner for the relevantperiod may somewhat favour his case. The fact is however thatthose Income-tax Returns were very much available with himwhile the order granting interim maintenance was passed. Had hemarked his appearance in the proceedings and responded it for theapplication for grant of interim maintenance, his claim could havebeen considered. Placing reliance on the Income-tax Returns ofthe period during which the order dated 08/03/2019 came to bepassed, could therefore not be considered to be a cause of actionfor the petitioner to move an application for modification of theorder dated 08/03/2019. The petitioner did not challenge the saidorder dated 24/12/2021, whereby his first application formodification of the interim maintenance came to be rejected. 13.The petitioner again moved an application Exhibit-25. Thistime his claim was based on the guidelines in the case of RajneshVs. Neha and Another (supra). The petitioner took this Court tothe directions given by the Hon’ble Apex Court. 14.Admittedly, the order granting interim maintenance and thepetitioner’s application for modification of the said order, precedeHon’ble Apex Court’s judgment in the case of Rajnesh Vs. Nehaand Another (supra). The petitioner ought to have preferred an appeal under Section 29 of PWDVA, for taking exception to theorder rejecting his second application for modification of the order.He did not avail the remedy of appeal. It was expected from him,being an advocate, to avail an equally efficacious remedy ofappeal. This Court do not propose to direct him to avail thatremedy since 5 years have passed post the respondent-wife filed anapplication under Section 25 of PWDVA. The parties are still at thestage of grant of interim maintenance. It would therefore not bedesirable to remit the matter to the Appellate Court or even backto the learned Magistrate Court for deciding the matter afresh aftergiving the petitioner an opportunity of hearing. 15.In view of this Court, the quantum of maintenance awardedmay not be exorbitant. Admittedly, the petitioner purchased a carworth little over Rs. 15 lakhs. The petitioner had even not paid afarthing in compliance with the order of interim maintenance. It isonly when a distress warrant came to be issued, he deposited notmore than a sum of Rs. 1 lakh and secured an interim relief. Therelief appears to have been granted only to ensure that thepetitioner is not arrested. The petitioner appears to have takenadvantage thereof and even urged for continuation of the saidorder since he proposes to approach the Hon’ble Supreme Court.The petitioner impliedly admitted during his submissions that withpassage of time his practice has grown. In view of this Court, thewrit petition deserves to be dismissed with certain directions to thelearned Magistrate. of the following order :- ORDER a. Writ Petition stands dismissed. of the following order :- ORDER a. Writ Petition stands dismissed. b. The petitioner is directed to deposit with the Trial Courtall the arrears of interim maintenance. The Trial Court shalldecide the main application on its own merits within a time-frame of 6 months from the date of receipt of the copy of thisorder. The Trial Court shall give the parties full opportunityof hearing. It shall ensure compliance of the directions ofHon’ble Apex Court in the case of Rajnesh Vs. Neha andAnother (supra). Needless to mention that based on theevidence in the matter, the quantum of maintenance mayvary on either lower or higher side of the quantum of interimmaintenance. If the Trial Court finds the respondents to beentitled to quantum of maintenance lesser than the onegranted as an interim maintenance, the amount directed tobe deposited by the petitioner towards arrears of interimmaintenance, would be given due set off. c. Writ petition stands disposed of accordingly. (R. G. AVACHAT, J.)