1. The applicant of Criminal Revision Application No.535 of 2010, who is petitioner in Special Criminal Application No.2055 of 2010, has challenged following orders arising from the proceedings under Section 125 of the Code of Criminal Procedure.
(1) Order dated 6.1.2010 passed by learned Chief Judicial Magistrate, Surendranagar in Criminal Misc. Application No.32 of 2009.
(2) Judgment and order dated 29.9.2010 passed in Criminal Revision Application No.10 of 2010 filed by applicant as well as order dated 29.9.2010 passed in Criminal Revision Application No.17 of 2010 passed by the trial court.
2. Brief facts arising from the case are as under:
2.1 That the marriage between applicant and respondent No.2 was solemnised on 16.3.2007 at Surendranagar and was also registered. There is no child born out of the said wedlock. The respondent No.2 – wife of the applicant started residing with the applicant at Mumbai, and according to respondent No.2, because of mental torture by the applicant and his family members, she was forced to leave the matrimonial house on 15.6.2008, and from 15.6.2008 the respondent No.2 is staying with her parents at Surendranagar. The respondent No.2 – wife of the applicant filed an application under Section 125 of the Code of Criminal Procedure on 29.1.2009 in the Court of learned JMFC at Surendranagar and prayed for alimony to the tune of Rs.50,000/ from 15.6.2008 when she was forced to leave the matrimonial house. It was the case of the respondent No.2 that she had no means for survival and the present applicant, being highly educated, was working as a Manager in a Private Limited Company known as J.P.Morgan Services India Private Limited. It was alleged in the application that her husband was earning Rs.3,50,000/ per month and, therefore, she was entitled for Rs.50,000/ per month towards alimony from her legally wedded husband. After hearing both the sides, and considering the pay slip of January, 2008, the learned Magistrate came to the conclusion that the applicant was capable of earning Rs.3,50,000/. It was also further observed that, since the applicant had lost his service, and since the applicant had no other liabilities, awarded Rs.8,000/ per month to the respondent No.2.
2.2 By the said judgment and order dated 6.1.2010 passed by learned Chief Judicial Magistrate, Surendranagar, the applicant preferred Criminal Revision Application No.10 of 2010. Similarly, the present respondent No.2 also preferred Criminal Revision Application No.17 of 2010 having been dissatisfied with the adequacy of the maintenance.
2.3 The learned Additional Sessions Judge by his common judgment and order dated 29.9.2010 dismissed the application filed by the present applicant and allowed the application filed by the respondent No.2 for enhancement of the alimony. By allowing the application filed by respondent No.2 wife, the learned Additional Sessions Judge enhanced the monthly alimony from Rs.8,000/ to Rs.30,000/ and also awarded Rs.5,000/ towards cost of the revision application.
3. Heard Ms.Manisha Lavkumar Shah, learned advocate appearing with Mr.P.S.Patel for the applicant, learned APP Mr.L.B.Dabhi for the respondent No.1State and learned advocate Mr.Kirtidev R.Dave for the respondent No.2.
4. Learned advocate Ms.Shah appearing for the applicant has assailed the judgments passed by learned Chief Judicial Magistrate as well as the Additional Sessions Judge by submitting that, both the courts have erred in coming to the conclusion that the applicant was earning Rs.3,50,000/ per month or was capable of earning Rs.3,50,000/ per month, and relying upon the said amount the trial court ought not to have awarded Rs.8,000/ per month and revisional court ought not to have enhanced to the tune of Rs.30,000/ per month towards the alimony to the respondent No.2. She has drawn the attention of the Court by producing several pay slips which are of the year 2007, and one of January 2008 i.e. dated 29.1.2008. It is submitted that the pay slip of January 2008 reflects one Entry of Rs.2,75,000/ which has been wrongly included by the trial court as a salary of the applicant. She has submitted that the applicant was awarded an amount of Rs.2,75,000/ as a bonus which is given at the end of the year and, therefore, the learned trial court ought not to have included this amount as monthly income and ought to have divided in 12 equivalent parts. The other pay slips do not disclose this entry (Bonus). Similarly, she has submitted that, in the pay slip of January 2007, an amount of Rs.1,99,000/ has been mentioned as a bonus awarded to the applicant. In view of this aspect, she submitted that the amount awarded by the appellate court is much on higher side and, therefore, requires to be quashed and set aside.
She has further submitted that the applicant had lost his job in July, 2008, and was not earning anything. However, she has fairly conceded that recently the applicant has got job in some private firm.
5. On the other hand, learned advocate Mr.Kirtidev Dave appearing for the respondent No.2wife has opposed this application, and submitted that the gross income of the applicant, as reflected from the IncomeTax Return for the Assessment Year 20082009, it comes Rs.12,96,388/, and even if the tax of Rs.2,77,647/ which is paid under the provisions of Income Tax Act, the applicant yearly income would be more than Rs.10.00 lacs and, therefore, an amount of Rs.30,000/ awarded by the revisional court does not require any interference. He has further submitted that the certificate issued by the Income Tax Department for the Assessment Year 20092010, and the period from 1.4.2008 to 30.7.2008 which is produced on record by the applicant himself, his gross income for the four months is Rs.4,50,798/, and even if the tax of Rs.53,292/ is deducted from his income, the applicant had earned almost Rs.4.00 lacs for four months and, therefore, the enhancement made by the revisional court may not require to be interfered with by this Court.
6. I have perused the orders passed by the courts below and also perused the affidavits filed by the parties and the documents produced along with the affidavits. It appears from the judgment that the appellant has not raised the arguments advanced before this Court about the entries with regard to bonus. Similarly, the trial court has also not considered the same and on presumption that the applicant was capable of earning of Rs.3,50,000/, awarded Rs.8,000/ which was enhanced to Rs.30,000/ by the revisional court and, therefore, it would be desirable to remit this matter to the learned Chief Judicial Magistrate at Surendranagar. The parties are at liberty to produce relevant documents and the applicant shall also produce his Income Tax Returns for each assessment year starting from 2008 2009 to 20122013 before the trial court. The trial court shall consider gross income of the applicant, deductions etc. in accordance with law, and decide the alimony accordingly.
It would be open for the parties to raise all contentions which are neither raised before the trial court nor before the revisional court, and shall produce relevant documentary evidence in support of their respective contention raised in their application or affidavitinreply respectively. It is made clear that the applicant shall continue to pay Rs.8,000/ per month towards alimony till the application is decided by the learned Chief Judicial Magistrate, Surendranagar.
7. In view of the above observations, the Revision Application as well as Special Criminal Application are allowed. The impugned order dated 6.1.2010 passed by the learned Chief Judicial Magistrate, Surendranagar in Criminal Misc. Application No.32 of 2009, judgment and order dated 29.9.2010 passed in Criminal Revision Application No.10 of 2010 as well as order dated 29.9.2010 passed in Criminal Revision Application No.17 of 2010 passed by the trial court are hereby quashed and set aside.
It is made clear that this Court has not decided the matter on merits, but, on prima facie, it was found that neither the revisional court nor the court below have properly dealt with the case on hand and, therefore, the matter is remanded to the learned Chief Judicial Magistrate at Surendranagar, who shall decide Criminal Misc. Application No.32 of 2009 within a period of three months from the date of receipt of the order. It would be open for the parties to submit documentary evidence before the trial court from a period of one month from the receipt of the order. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(A.J.DESAI, J.) syed/