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Rupesh Kumar vs Madhu Diwan on 6 February, 2020


?Court No. – 32

Case :- FIRST APPEAL No. – 116 of 2020

Appellant :- Rupesh Kumar

Respondent :- Madhu Diwan

Counsel for Appellant :- Rajesh Kumar Singh,Vinay Kumar Singh

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 12.12.2019, passed by the Principal Judge, Family Court, Jhansi, by which application filed by respondent-wife under Section 24 of Hindu Marriage Act, 1955 (herein after referred to as the Act, 1955) was partly allowed awarding Rs.5,000/- per month towards maintenance pendente lite, Rs.3,000/- lump sum as litigation expenses and Rs.300/- for attending the court on each date of hearing in favour of the respondent-wife.

Heard counsel for the appellant and perused the record.

The appellant-husband had filed petition under Section 9 of the Act, 1955, which was registered as Case No.1245 of 2018. During the pendency of aforesaid petition, the respondent-wife had moved an application under Section 24 of the Act, 1955, claiming Rs.20,000/- per month for maintenance pendente lite and Rs.20,000/- lump sum for legal expenses and travelling expenses. It is alleged by the respondent-wife in her application that the income of her husband is not less than Rs.50,000/- per month, whereas she is unemployed having no income.

The appellant-husband had filed objection to the application under Section 24 of the Act, 1955, stating therein that the income of the respondent-wife is Rs.50,000/- per month from coaching as well as beauty parlour.

Learned counsel for the appellant has submitted that the findings given by the court-below are illegal, arbitrary and based on complete misleading of the facts and misconception of legal position relevant to the matter. He further submitted that the appellant is an unemployed person having no income and there is no evidence on record in regard to the income of the appellant-husband and the amount of Rs.5,000/- per month as interim maintenance has been fixed in an arbitrary manner.

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.5,000/- per month towards maintenance pendente lite, Rs.3,000/- lump sum as litigation expenses and Rs.300/- for attending the court on each date of hearing vide order dated 12.12.2019, 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 spiralling inflation rate and high cost of living index, we are of the opinion that Rs.5,000/- per month towards interim maintenance could not be treated to be on higher side rather it is on lower 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. However, this order will not preclude the respondent-wife from filing an appeal against the impugned order to claim enhancement of maintenance amount.

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.

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

Order Date :- 6.2.2020

LN Tripathi



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