IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CRIMINAL JURISDICTION
CRIMINAL REVISION APPLICATION NO. 106 OF 2013
Shabnam Badri …Applicant(Orig. Applicant)
Shabbir Badri …Respondent(Orig.Respdt.)
Mrs. Anita Agarwal for Applicant
Mr. Shoib Menon for Respondent No.1
CRIMINAL REVISION APPLICATION NO. 435 OF 2012
Shabbir Badri …Applicant(Orig. Respondent)
Shabnam Badri …Respondent(Orig.Applicant)
Mr. Shoib Menon for Applicant
Mrs. Anita Agarwal for Respondent No.1
CORAM : MRS. ROSHAN DALVI, J.
DATED : 11TH MARCH, 2013
1. The Criminal Revision Application No.435 of 2012 had appeared on board on 14th December, 2012 since the applicant husband was not present it has been dismissed. It is restored to hear both the parties, the husband and wife on merits.
2. The husband is a Seaman. His cross examination shows that he was a Radio Officer till 1998. In 2005 he became a Chief Officer. Thereafter he was the Master of Ship until 2010. His job was on contract basis. He could not produce the written contract. He claims to be earning about Rs. 1 lakh. He has not produced any documentary evidence to show that fact. He was asked about this in his evidence. He failed to produce the documents of service showing his emoluments. He instead produced his income tax returns. His salary is in US dollars. It is tax free. It would not be reflected in income tax returns. His income tax returns would show income otherwise from his salary. His income tax returns show only the first page of the returns without any annexures showing the computation of income. It is shown only to be rejected. His income tax returns do not carry his case any further.
3. The husband claims that he lost his job. This would have to be proved by showing the bank account of the earning whilst he admittedly was a master of ship and then to show the continuance of that bank account having no credits. That is not produced.
4. The evidence has considered certain insurance policies. The husband in his cross examination has admitted that he had a Current Bank Account in HSBC Bank, UK. He corrected to state that that was a Midland bank and then corrected to state that he did not recollect the bank account. He admitted that he had HSBC NRE Bank account at Fort. He admitted that he had HSBC NRO Bank account at Bandra(W), Branch. He has a saving account with ICICI Bank at Mira Road Branch and he has ICICI Bank account with Santacruz Branch. He refused to produce the statements of the bank account. He accepted that some of them are of joint accounts. He also accepted that he has a shop which he has disposed of for Rs.4 lakhs after having purchased it for Rs. 5 lakhs. Such real estate value has had no parallel in Mumbai.
5. His case of income has to be seen only from his admitted employment position as the Master of the Ship. The wife claims that he would be earning Rs.5 lakhs. He claims that he is earning only Rs. 1 lakh. The learned Judge has considered a reasonable figure based upon an analysis of what he earns. That would have to be accepted by the Court.
6. The husband’s evidence is seen to be wholly evasive and dishonest. The husband who is the Master of Ship is bound and liable to maintain his wife who is a school teacher. The husband has shown his bank account having paltry figures as bank balance. From cross examination it would show and suggest that there is another account in which his entire salary has been credited. No such bank account is shown.
7. He has deposed that he used to obtain his salary in cash or cheques depending on situation.
8. The husband contends that he was asked in the cross examination and he has produced thereupon his continuance discharge certificate which would show that he was actually employed for only a few months each year. The husband has tendered his continuance certificate to this Court also. There are entries of certain years showing certain months in which he was under contract. The entries are for the years 2001 to 2010 showing him as Chief Officer and Master. These entries are for about six months at a time.
9. Persons on offshore jobs are given allowance during the period when they are on shore. These allowances would be lesser than while they work offshore while they are on actual duties. The husband has not shown his offshore emoluments during his contractual period of his service.
10. The husband has shown that he has to incur personal expenses of Rs.2 lakhs p.m whilst he is on offshore. Hence his income would be at least more than Rs. 2 lakhs. The learned Judge has computed the income of the husband upon rational analysis.
11. It is seen that the husband has also produced statements of his mutual funds. There are various investments in mutual funds. They are in tax relief fund–dividend payout option, SBMPP – dividend option etc. The husband also has individual health insurance policy which is also required for tax relief.
12. The wife is a School Teacher. She has also not produced her salary slips. Her salary has only been stated like her husband’s. Both have given figures of the salary allegedly earned and thought to be earned. Both such figures per se cannot be accepted. The learned Judge has computed her salary also. That also would, therefore, have to be accepted.
13. The wife’s parental home is at Khar. Her matrimonial home is in Mira Road. She went to reside in Mira Road. She could not reside because there were no servants to assist her. She has many servants in her father’s house. She went back to her parental house and refused to go back to her matrimonial home. It would have to be seen whether it is justified for the wife of a Master of the ship to expect to have a domestic assistant by way of a maid. For the wife of a Clerk that same would be unjustified. These basic differences are required to be kept in mind.
14. Oblivious of that difference, the husband claims that he has called his wife to stay in his home but the wife refused to stay and hence she is not entitled to maintenance. The analogy is incorrect and must be rejected.
15. The evidence of the wife shows that she uses a car purchased by the Respondent. That would show the status of the respondent. The respondent has given a car, but not the maintenance amount. Hence she was constrained to sue for maintenance.
16. It is seen that the husband has not fully shown his income as also his investments. However the wife has also not shown her income as a teacher. Adverse inference must be drawn against both the parties.
17. The wife has only shown the expenses of the children whose custody she has. The parties have two children they are in VIII standard and IX standard. They attend Leelawati Poddar High School. The term fees per child is in a range of Rs.20,000/ to Rs.24,500/.
18. The learned Judge has considered how the wife can maintain herself. He has also considered that parties lived together only for 9 months during 6 to 7 years of marriage after which the wife went to her father’s flat where she lives in reasonable luxury. She went for vacations to various places enumerated in the order in India as well as abroad. She looked after financial affairs of her husband in his absence. She refused to give her marriage another chance after being supported by her community elders. She has also not filed her income tax returns and has suppressed her material facts of income. The learned Judge has considered the fallout of various visits abroad whilst she is a school teacher. The learned Judge has reasonably considered the suppression by both the parties, the income and investments of both the parties, and their usual standard of living.
19. The learned Judge has considered the respective salaries of the parties and granted maintenance based upon the aforesaid evidence of Rs.10,000/ each to the children. The learned Judge has not granted any maintenance to the wife who is a school teacher.
20. The conclusion of the learned Judge that she is capable of maintaining herself cannot be faulted. Hence the impugned order cannot be interfered with in her criminal revision application. Similarly the payment of maintenance only for the children which is also challenged by the husband cannot be faulted in view of his shown and suppressed earnings.
21. Of course this is only in the petition under Section 125 of Cr.P.C where the wife must show that she cannot maintain herself. She would be entitled to alimony and maintenance as per law in other proceedings between the husband and wife.
22. For the expenses she claims for her children Rs.10000/ per month each granted to the children is seen to be reasonable.
23. Consequently the impugned order which has been challenged by both the parties does not require any interference. Both the petitions are dismissed.
24. The husband shall forthwith pay all the arrears of maintenance already granted.
(MRS. ROSHAN DALVI, J.)