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Judgment
Tarun Kumar Gupta, J.—The petitioner husband has filed this application u/s 397/401 read with Section 482 of the Code of Criminal Procedure, 1973 challenging order dated 7th August, 2013 passed by learned Additional Chief Judicial Magistrate Uluberia in Misc. Case No. 67 of 2010.
By the order impugned learned trial court directed the petitioner husband to pay maintenance u/s 125 Cr.P.C. to the O.P. No. 3 wife at the rate of Rs. 5000/- per month for herself and at the rate of Rs. 3,000/-per month for their son being O.P. No. 2.
The admitted fact of the case as it is gathered from the materials on record as well as from the submissions of learned counsels of the parties may be summarized:-
O.P. No. 3 was married with petitioner on 15th May, 2005 under Special Marriage Act, 1954. A son (O.P. No. 2) was born out of said wedlock. O.P. No. 3 wife along with their son (O.P. No. 2) are residing in her father''s place on the ground of torture on demand of dowry. It was claimed that the present petitioner had a roaring income tax practice and that he had also income from landed properties. He also owns two flats at 7 B Tiljala Lane and 13 B Tiljala Lane. The husband contested said case by filing written objection denying material allegations of the petition and contending inter alia that the husband had only a meagre income of around Rs. 50,000/- per annum as a tax practitioner and that wife earns Rs. 10,000/- from tuition and that the wife was not entitled to get any maintenance. It was further alleged that the husband already filed a case in the appropriate forum claiming custody of the minor son and that on account of criminal activities of the wife and associates the husband has filed a specific criminal case being case No. 292 of 2009. Both sides adduced evidence, both oral and documentary. After contested hearing learned trial court passed the order impugned.
Mr. Sudipta Moitra, learned counsel appearing for the petitioner husband has assailed the order impugned on the following grounds.:
First, though the husband filed his income tax returns for several years to show his income but learned trial court refused to accept the same without any valid ground.
Secondly, though the wife admitted in the written statement filed in the custody case that she had income from tuition but she did not disclose the same in the case but learned trial court ignored said suppression.
Thirdly, though it was within the special knowledge of the wife as to what was her income from tuition but learned court below shifted the burden upon the husband to prove the same.
Fourthly, though the husband produced rent receipts to show that he took those two flats on rent not being their owner, but learned court below on some imaginary grounds did not put reliance on those rent receipts.
Fifthly, learned court below did not state on what basis the quantum of maintenance in the order impugned was fixed. Accordingly, he submits that the order of awarding maintenance should be set aside by remanding the matter back to the court below for reassessing the same according to law on the basis of materials already on the record.
Mr. Soumyajit Das Mahapatra, learned counsel for the O.P. wife, on the other hand, submits that there was enough evidence to show that the husband had income much above the income as disclosed in the income tax returns and that learned court below did not commit any wrong by not relying in the income tax return. He next submits that learned court below rightly observed that the income of the wife from tuition was not proved to be Rs. 10,000/- per month as alleged and that the wife was entitled to claim maintenance from her husband not only for minor son but also for herself.
Before I go into the merit of the case it is worthy to note that though the husband took the plea of giving ''talak'' to the wife in said case but learned trial court did not accept said ''talak'' and it was not challenged before this court during hearing. Admittedly, the O.P. No. 3 was the legally married wife of the petitioner having a minor son (O.P. No. 2) through said marriage. As said minor son is presently staying with his mother, the petitioner being his father is bound to give maintenance to the wife for the son so long said minor son remains in the custody of the mother (wife of the petitioner husband). Said amount has been assessed by the court below as Rs. 3,000/- per month. This has not been challenged in this forum during hearing.
There is no denial that the husband filed in said case the copies of income tax returns for the year 2010-11, 2011-12 and 2012-13 to show that he had a paltry income of around Rs. 50,000/-/Rs. 60,000/- per annum.
Mr. Moitra put much reliance upon these documents by claiming that those were filed before a statutory authority i.e., income tax department and that there is nothing to show that the department refused to accept those statements and hence there was no scope to say that the husband earned income more than the amount as disclosed in those statements. Learned trial court refused to accept the amount as shown in those statements as annual income of the husband on the ground of not producing income and expenditure accounts and also on the ground that an income tax practitioner is the best person to know how to save tax in spite of having taxable income. It is true that the reasons given by the court below on this score may not be acceptable. But income tax returns are nothing but statements of a person disclosing his income before the income tax authority. The Income Tax Authority may accept said statements as the income of the person concerned, or may not accept the same by raising questions. Even if it is accepted for argument''s sake that there was no order of inquiry from the side of the Income Tax Department, even then it cannot be said that the income shown in the return was the actual income of the person. The incomes as shown in the income tax return are nothing but a declaration of a person before the authority, but that does not mean that the income so declared was his real income. However, if the income as disclosed in the income tax return are not accepted to be true income then said non-acceptance should be based on some reasonings.
The wife took the plea that the husband was also owner of two flats one at 7 B Tiljala Lane and other at 13 B Tiljala Lane. Unfortunately, the wife failed to produce any document in support of the same. But the husband during evidence produced exhibit ''C'' series and ''D'' series to claim that he had tenancy in respect of those two flats under landlords who issued rent receipts. Learned trial court on comparison of the writings appeared on those two exhibits i.e., exhibit ''C'' series and ''D'' series and the hand writing of the husband appearing in other documents of the case record came to a finding that those rent receipts were under the hand writing of husband and were rather fabricated and not believable documents. During hearing said observations of the court below were challenged by Mr. Moitra as learned court did not refer those documents to any handwriting expert for examination and report. It is pertinent to note that a court of law has power u/s 73 of the Indian Evidence Act to compare hand writings appearing on two documents to form an opinion as to whether those were under the handwriting of same person or not. Only when the court is not in a position to make said comparison, or thinks it necessary for obtaining a report from an expert then only the court may refer the matter to a handwriting expert. As such, there was no wrong on the part of the learned trial court to take up the task of comparing the handwritings of the rent receipts with the handwritings of the husband appearing in other documents of the case record. It also appears that the other witness of the husband examined as O.P.W. 2 admitted in his examination-in-chief that said two flats were owned by the husband.
Let me accept for argument''s sake that the husband was not the owner but tenant in respect of those two flats. Can a person having a meager income of Rs. 50,000/-/Rs. 60,000/- per annum show the luxury of renting two flats at Kolkata in these hard days? The petitioner husband did not dispute the quantum of maintenance at the rate of Rs. 3,000/- per month payable by him on account of the minor son. But as per his declared income to the Income Tax Authority his monthly income is only Rs. 4,000/-(+)-Rs. 5,000/- per month. This goes to show that the husband had income much more than the income as disclosed in his income tax returns. Now, what is the actual income of a person can only be stated by the person concerned. Unfortunately, the petitioner husband only filed these income tax returns and no other document in support of his income.
In view of the observations as made above I am of the opinion that the ultimate finding of the learned court below that the income of the husband was more than the income as disclosed in the income tax statements was correct.
Learned court below gave a reasoning as to why the income of the wife from tuition cannot be Rs. 10,000/- per month as claimed by the husband. However, though the wife admitted of having some income from the private tuition in the written statement filed in the case filed by the husband praying for custody of the minor child, but she did not state about the exact income either in said proceeding or in the present one u/s 125 Cr.P.C. As it was within the personal knowledge of the wife she should have given evidence as to the exact amount of income, if any, from tuition. Learned trial court put forward some reasonings as to why he refused to accept the claim of the husband that said income of the wife from tuition was around Rs. 10,000/- per month. The grounds given by the learned court below on this score cannot be brushed aside as being conjectures and surmise as those were backed by some reasonings. Learned trial court awarded an order of maintenance at the rate of Rs. 3,000/- for the minor son and at the rate of Rs. 5,000/- per month for the wife from the date of filing of the petition by the order impugned. I have already stated that the amount of maintenance awarded in favour of minor child was not challenged during hearing. The amount of maintenance awarded to the wife is not found to be excessive in the backdrop of the status of the husband.
Accordingly, this application is hereby dismissed on contest.
No costs.
Urgent photostat certified copy of this judgment be supplied to the learned counsels of the parties, if applied for.