Sh. Anil Kumar vs Ms. Manisha

Aruna Suresh, J.—Impugned in this petition is the order of Trial Court dated 21st January 2010, whereby on an application of the respondent u/s 24 of the Hindu Marriage Act (hereinafter referred to be as the "Act"), it awarded interim maintenance of Rs.2,000/- per month to wife and Rs.1,500/- per month to daughter Devika, besides litigation expenses of Rs.7,000/-.

Learned counsel for the petitioner has submitted that Trial Court did not take into consideration the fact that petitioner is not running a canteen but is an employee therein and is getting Rs.3,000/- per month only. It is pertinent that Trial Court had granted sufficient opportunity to the petitioner to place on record his salary certificate and detailed bank statement for one year. Despite these directions and opportunities granted to the petitioner, he failed either to file his salary statement or statement of the bank account. This fact was noted down by Trial Court in para 12 of the impugned order as below:-

The non-applicant/husband states that he is earning a sum of Rs.3000/- being employee of school canteen. Vide order dt.09.09.09 the non-applicant/husband was directed to file salary certificate detail of bank statement for one year. The non-applicant/husband despite repeated opportunities did not file any detail of bank statement nor the salary slip. The non-applicant/husband has stated himself to be employee in School canteen but failed to place any material on record to establish this fact. Neither any appointment letter nor any salary slip is placed on record. The version of applicant/wife that non-applicant/husband is running a canteen in Ghazipur Vidya Bharti School appears to be correct. Hence, considering the facts and circumstances, competency, capacity, caliber and status of non-applicant/husband, I estimate his monthly income to be Rs.10,000-12,000/- per month.

Respondent has specifically averred in the petition that petitioner is running a canteen in Ghazipur Vidya Bharti School and is earning about Rs.15,000/- per month. Besides, he is running a Prashad shop at Balaji Mandir, Vasundhara and is earning about Rs.5,000/- per month. She has further averred in the petition that petitioner has approximate income of Rs.10,000/- from selling candies, toffees, biscuits, namkeens. According to her, petitioner is earning about Rs.30,000/- per month. Since petitioner has failed to substantiate his defence that he was only an employee in the canteen and had no other income except Rs.3,000/- by producing relevant documents before the Trial Court, to my mind, it rightly assessed his income at Rs.10,000 - 12,000/- per month and consequently awarded consolidated maintenance of Rs.3,500/- per month to wife and the child.

During the course of arguments, when asked, counsel for the petitioner sought a pass over to have instructions from petitioner, if he was ready to file his affidavit to the fact that he was neither running any canteen nor was having any other source of income except his pay of Rs.3,000/- per month. His request was accepted and the matter was passed over.

On second call, counsel for the petitioner has appeared and submitted that he has talked to the petitioner and petitioner is ready and willing to file his affidavit stating that he is not running any canteen as claimed by the respondent. However, when I proceeded to record aforesaid willingness of the petitioner, counsel intervened and submitted that he did not talk to the petitioner but had a talk with counsel for the petitioner, who is representing him in the Trial Court.

Under these circumstances, when petitioner has tried to misguide the Court, it can be safely presumed that he is the proprietor of the canteen, being run in Ghazipur Vidya Bharti School and is earning about Rs.15,000/- per month. Even if, for the sake of arguments, it is accepted that petitioner has no other source of income, Trial Court rightly assessed income of the petitioner at Rs.10,000-12,000/- per month and awarded monthly maintenance of Rs.2,000/- to wife and Rs.1,500/- to child.

Therefore, in view of discussion as above, I find no illegality or infirmity in the order of the Trial Court, which might need an interference by this Court. Hence, petition, being without any merits, is hereby dismissed.

CM No. 4435/2010 (for exemption) & 4436/2010 (for stay)

Since petition has been dismissed, both these applications have become infructuous. The same are dismissed accordingly.