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Ankur Awasthi vs Smt. Jaya Awasthi on 13 February, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 32

Case :- FIRST APPEAL No. – 150 of 2020

Appellant :- Ankur Awasthi

Respondent :- Smt. Jaya Awasthi

Counsel for Appellant :- Himkanya Srivastava

Hon’ble Shashi Kant Gupta,J.

Hon’ble Vipin Chandra Dixit,J.

This appeal has been filed by the appellant-husband challenging the impugned judgment and order dated 26.11.2019, passed by the Additional Principal Judge-IV, Family Court, Kanpur Nagar in Case No.716 of 2018 (Ankur Awasthi vs. Smt.Jaya Awasthi), filed under Section 13 of Hindu Marriage Act, 1955 (herein after referred to as the Act, 1955), whereby an application filed by the respondent-wife under Section 24 of the Act, 1955 has been partly allowed awarding Rs.10,000/- per month towards maintenance pendente lite, Rs.5,000/- per month for her son and Rs.10,000/- lump sum towards litigation expenses, travelling expense, etc.

Heard counsel for the appellant and perused the record.

The appellant-husband had filed divorce petition under Section 13 of the Act, 1955, seeking divorce from his wife on the ground of cruelty, which was registered as Case No.716 of 2018. During the pendency of aforesaid divorce petition, the respondent-wife had moved an application under Section 24 of the Act, 1955, claiming Rs.30,000/- per month for maintenance pendente lite, Rs.10,000/- for her son and Rs.11,000/- lump sum for legal expenses. It is alleged by the respondent-wife in her application that she is unemployed having no source of income whereas the income of her husband is Rs.1,00,000/- per month from salary paid by Reliance JIO.

The appellant-husband had filed objection to the application under Section 24 of the Act, 1955, denying the averment made in the application. The appellant-husband had stated in his objection that his wife has an income of Rs.10,000/- per month from teaching work as well as tuition and he admits his employment in Reliance JIO and salary of Rs.50,000/-.

The learned court-below had recorded the finding that no documentary evidence was produced either by the husband or wife to prove the income of his/her spouse and after hearing the parties has awarded Rs.10,000/- per month towards interim maintenance, Rs.5,000/- per month for her son and Rs.10,000/- lump sum towards litigation expenses, travelling expense, etc. vide order dated 26.11.2019, which is under challenge in the present appeal.

Admittedly, the respondent is a legally wedded wife of the appellant and the appellant being husband of the respondent is morally bound to discharge his legal obligation of maintaining his wife in any circumstances. The husband cannot be heard to say that he is not in a position to earn enough to be able to maintain his wife. In the present case, as the appellant has not frankly disclosed his income, an adverse inference can be drawn against him. Now it is well settled position of law that when the husband does not disclose to the court the exact amount of his income and the question of maintenance of his wife arose, the presumption would be against the husband and the obligation of the husband is on a higher pedestal.

Considering the facts and circumstances of the case and keeping in mind the spiraling inflation rate and high cost of living index, we are of the opinion that Rs.10,000/- per month to the wife and Rs.5,000/- per month to her son towards maintenance pendente lite could not be treated to be on higher side. Thus, we find that the court below has given a cogent, convincing and satisfactory reasons while passing the impugned order and the same are neither perverse nor based on any extraneous consideration or irrelevant material. This Court, while exercising its appellate jurisdiction can not substitute its opinion for the opinion of the court below unless it is found that the conclusion drawn by the court below is factually incorrect, manifestly illegal or perverse. The appellant has failed to point out any infirmity in the finding recorded by the family court below.

In view of the above, we do not find any illegality, infirmity or perversity in the impugned order which may warrant any interference by this Court.

However, this order will not preclude the respondent-wife from filing an appeal against the impugned order to claim enhancement of maintenance amount.

In the result, the appeal fails and is hereby dismissed.

Order Date :- 13.2.2020

LN Tripathi

 

 

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