Sh. Anil Kumar vs Ms. Manisha
2010 Latest Caselaw 1339 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI


+             CM(M) 325/2010 & CM No. 4435-36

                               Date of Decision: March10, 2010

       SH. ANIL KUMAR                                 ..... Petitioner
                     Through:            Mr. Bimlesh Kumar,
                                         Advocate.

                    versus


       MS. MANISHA                                  ..... Respondent
                             Through:    None.


       %
       CORAM:
       HON'BLE MS. JUSTICE ARUNA SURESH

     (1)      Whether reporters of local paper may be
              allowed to see the judgment?
     (2)      To be referred to the reporter or not?
     (3)      Whether the judgment should be reported
              in the Digest ?

                        JUDGMENT

ARUNA SURESH, J. (Oral)

1. Impugned in this petition is the order of Trial Court

dated 21st January 2010, whereby on an application of the respondent

under Section 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/-.

2. 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:-

"12. 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."

3. 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.

4. 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.

5. 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.

6. 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.

7. 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)

8. Since petition has been dismissed, both these

applications have become infructuous. The same are dismissed

accordingly.

ARUNA SURESH, J.

MARCH 10, 2010 sb