Pritam Dialani vs Bharathi Pritam Dialani

Budihal R.B., J.—Heard the learned counsel appearing for the petitioner/husband and the learned counsel appearing for the respondent/wife on admission.

Learned counsel for the petitioner has submitted that earlier the petitioner was paying Rs. 50,000/- per month to the respondent/wife. At that time he was working at Spain and he was earning good income, therefore, he was able to make the payment. But now he is aged 75 years and he is not getting any such income at present. Therefore, the financial capacity of the petitioner/husband i.e., whether he is capable to pay that much amount or not is not at all considered by the Trial Court as well as the First Appellate Court. He has submitted that petitioner is not capable to make payment of amount as awarded by the Trial Court.

It is also his contention that petitioner is not at all examined before the Trial Court. So far as the document Exhibit P-30, the declaration is concerned, there are so many corrections carried out and whether the corrections were carried out by the petitioner or the respondent, the Trial Court has not made any effort to ascertain the same. He has also submitted that the children of the respondent are grown up and even for them also claim was made by the respondent/wife. Hence, he has submitted that in view of these infirmities in the orders of the Courts below, the matter may be admitted.

Per contra, learned counsel for the respondent/wife has submitted that even the respondent/wife is also suffering from old age and is present before the Court. It is also his submission that in the objection statement filed by the petitioner/husband before the Trial Court, execution of the declaration agreement as per Exhibit P-30 is admitted and even the payment of Rs. 50,000/- per month is also admitted. He has also submitted that when the petitioner has arrayed as party to the proceedings and when the objection statement was filed, nothing prevented the petitioner to come before the Court and give oral evidence in support of his contentions. Inspite of such opportunity, he has not turned up nor given his evidence before the Court. Therefore, it cannot be a ground for the petitioner to appear before this Court.

Learned counsel for the respondent has submitted that since November 2008 the petitioner has not at all made any payment nor has worried about performing the marriage of the children, who have grown up for the marriage age. Hence, he has submitted that the amount awarded by the Trial Court i.e., Rs. 45,000/- per month, it includes maintenance, monthly rental @ Rs. 5,500/- and all other expenses. Hence, he has submitted that it is reasonable and no illegality has been committed by the Courts below and there are no grounds to admit the petition.

Perused the grounds urged in the petition and also the orders passed by the Courts below. The relationship between the parties is admitted and even the execution of the declaration of agreement as per Exhibit P-30 is not disputed. Even according to the petitioner/husband it is an admitted document under which he used to pay maintenance amount of Rs. 45,000/- per month to the respondent-wife earlier. But when the dispute started between them, petitioner/husband stopped paying the amount to the respondent/wife. The respondent/wife has been examined before the Trial Court as PW-1 and produced the documents Exhibit P-1 to P-30.

On behalf of the petitioner/husband, petitioner has not come forward to give oral evidence before the Court in support of the contentions taken in the objection statement. Therefore, when there is no supporting material produced by the petitioner/husband before the Trial Court, mere taking contentions in the objection statement is not sufficient to deny the case of respondent/wife.

Even though the respondent/wife has claimed compensation so also the amount for separate residence, the Trial Court has considered this and came to the conclusion that there is no necessity for the petitioner to provide another house as the respondent/wife is already residing in a rented house at the monthly rental of Rs. 5,500/-, respondent and children can continue in the same house. Therefore, the Trial Court has awarded Rs. 45,000/-, which amount is inclusive of monthly rent of Rs. 5,500/- and all other expenses. Even the Trial Court has refuse to grant compensation of Rs. 25,00,000/- holding that the petitioner is not able to pay that amount to the wife.

Perusing to the findings recorded by the Trial Court in its order, awarding Rs. 45,000/- including all expenses, was considered to be reasonable and when the said order has been challenged before the Appellate Court, the Appellate Court has re-appreciated the materials produced on record and came to the conclusion that there is no illegality committed by the Trial Court in passing such order and dismissed the appeal confirming the order passed by the Trial Court.

Perusing these materials, regarding the factual aspects, both the Courts below have recorded concurrent findings and in this petition, petitioner has not made out a case about any illegality in the judgment and orders passed by the Courts below. There are no justifiable and valid grounds to interfere with the judgment and orders of the Courts below. Hence, petition is hereby rejected.