S.C. Agarwal, J.@mdashHeard Shri Amit Kumar Srivastava learned Counsel for the applicant, learned AGA for the State, Shri V.P. Srivastava, Senior Advocate assisted by Shri Radhey Shyam Shukla and Sri Lav Srivastava, learned Counsel for opposite party No. 2.
2. Learned Counsel for the opposite party No. 2 stated before the Court that no counter-affidavit is to be filed on behalf of opposite party, and therefore, the application may be finally disposed of at the admission stage.
3. This application u/s 482 Code of Criminal Procedure has been filed with a prayer to quash the order dated 28.7.2008 (Annexure No. 3) passed by Chief Judicial Magistrate, Shahjahanpur in criminal case No. 2777 of 2008, Riti Talwar v. Bhupendra Kumar Taiwan, under Sections 12, 17, 18, 19 and 20 of the Protection of Women from Domestic Violence Act, 2005, PS. Kotwali, district Shahjahanpur as well as order dated 20.5.2011 (Annexure No. 4) passed by learned Additional Sessions Judge, Court No. 1, Shahjahanpur in Criminal Appeal Nos. 31, 32 of 2008.
4. That facts are that opposite party No. 2 filed a case under the aforesaid provision of Protection of Women from Domestic Violence Act, 2005 before Chief Judicial Magistrate, Shahjahanpur, which was registered as Crime Case No. 2777 of 2008. During pendency of the case, an application for interim relief was filed on 10.6.2008. The said application was partly allowed by Chief Judicial Magistrate, Shahjahanpur vide order dated 28.7.2008 and the applicant was directed to pay opposite party No. 2, a sum of Rs. 5000/- per month as interim maintenance allowance w.e.f. date of order. He was further directed to arrange for the residence of his wife in the shared household House Nos. 37, 38 and 39, Krishna Park, 127, Civil Lines, P.S. Kotwali, district Bareilly.
5. Feeling aggrieved, the applicant and the opposite party No. 2 filed cross appeals before Sessions Judge, Shahjahanpur, which were heard and decided by the 1st Additional Sessions Judge, Shahjahanpur vide judgment and order dated 20.5.2011. The appeal filed by the applicant was dismissed, whereas the appeal filed by opposite party No. 2 was allowed and the interim maintenance allowance was enhanced from Rs. 5000/- per month to Rs. 25,000/- per month.
6. Shri Amit Kumar Srivastava, learned Counsel for the applicant submits that the amount of maintenance was fixed by Magistrate keeping in view the income of the applicant as well as the income of the opposite party No. 2, both of them being income tax assesses and learned Additional Sessions Judge could not have increased the interim maintenance allowance from Rs 5,000/-to Rs. 25,000/ - per month on imaginary basis. It was also submitted that the house mentioned in the order of the Magistrate was not the shared household but was under tenancy of one Ajit Jaiswal, who filed a suit for injunction against the applicant which was decreed and the house in the tenancy of Ajit Jaiswal cannot be made available to opposite party No. 2 for residence.
7. Per contra learned Counsel for the opposite party No. 2 submits that the applicant as well as opposite party. No. 2 are divorcees, the applicant gave an advertisement on shadi.com stating therein that his income was more than Rs. 25 lacs per annum and he had many houses, three plots, 3-4 vehicles and 6 bar- restaurants in various districts and he was a man of means. Two children of the applicant are studying at Nainital, and therefore, learned Additional Sessions was fully justified in awarding Rs. 25,000/- per month as interim maintenance.
8. Copy of the income tax return (Annexure No. 13) filed by the applicant for the year 2007-08 shows gross income of Rs. 2,69,693/- or approximately Rs. 22,500/-per month.
Opposite party No. 2 is an agent of the Life Insurance Corporation, Extract of agency earning for the year 2010-11 issued- by the Life Insurance Corporation shows that in the year 2010-11, a sum of Rs. 1,65,941.20/- was paid to opposite party No. 2 as commission and after deduction of income tax, a sum of Rs. 1, 49,347.20 was paid which comes to more than Rs. 12,000/- per month.
9. These earning has not been denied by opposite party No. 2. Shri V.R Srivastava tried to argue that opposite party No. 2 has no real income and only of the income of the husband was shown as income of the wife for taxation purposes but the certificate issued by L.I.C is clear on this point and opposite party No. 2 is not in a position to deny the same.
10. As far as the income of the applicant is concerned, the income tax return of the applicant may be treated as conclusive proof of income. Income of the applicant has to be determined on the basis of documentary evidence and not on the basis of hypothetical claims made in the advertisement issued for the purposes of marriage. It is common knowledge that at the time of marriage, parties in India, exaggerate their financial status simply to attract better suitors. Such claims are often unreal or untrue, and rights of the parties cannot be decided on the basis of such claims.
11. On the basis of income tax return of the applicant and LIC certificate of the opposite party No. 2, this Court comes to the conclusion that the income of the applicant is approximately a little more than Rs. 22,500/- per month and the income of opposite party No. 2 is little more than Rs. 12,000/- per month. To balance the equities between parties, it is desirable that the applicant be directed to pay interim maintenance @ Rs. 5,000/- per month as directed by the Chief Judicial Magistrate. The amount of maintenance allowance fixed by the Additional Sessions Judge @ 25,000/- per month is highly excessive and is based not on evidence but on speculation and exaggeration.
12. So far as right of residence is concerned, the opposite party No. 2 claimed right of residence in house Nos. 37, 38 and 39, Krishna Park, 127, Civil Lines, Bareilly. In respect of said house, one Ajit Jaiswal filed original suit No. 147 of 2008, in the Court of Civil Judge (Senior Division), Bareilly for the relief of permanent injunction claiming possession by tenancy. The said suit was decided on the basis of compromise on 25.2.2009 and the tenancy right of Ajit Jaiswal was recognised, thus the aforesaid house is not available for the residence of the opposite party No. 2 and the direction given by both the Courts below in respect of the said house are liable to be set aside.
13. It was pointed out by the learned Counsel for the opposite party No. 2 that the applicant has many other residential properties where the applicant can provide accommodation to the opposite party No. 2 for residence. There is no such evidence before this Court, but if these facts are true, the opposite party No. 2 may move a fresh application detailing the other residential properties of the applicant, whether she may reside and after such an application is moved, the Magistrate shall pass suitable orders in respect of the same.
14. In view of the aforesaid, the application is allowed. The impugned judgment and order dated 20.5.2011 (Annexure No. 4) passed by learned Additional Sessions Judge, Court No. 1, Shahjahanpur is set aside and the order dated 28.7.2008 (Annexure No. 3) passed by the Chief Judicial Magistrate, Shahjahanpur awarding Rs. 5,000/- as interim maintenance is maintained but the direction to provide residence in house Nos. 37,38 and 39, Krishna Park, 127, Civil Lines, PS Kotwali, district Bareilly is set aside.
It shall be open to the opposite party No. 2 to point out other property held by applicant and claim her right of residence in such property. If such an application is made, the same shall be considered and disposed of by the Magistrate concerned in accordance with law.
