Hon'ble Naheed Ara Moonis,J.
This is an appeal filed by the appellant-husband challenging the order dated 21.3.2014 passed on an application filed by the respondent-wife under Section 24 of the Hindu Marriage Act whereby maintenance pendente lite of a sum of Rs. 32,000/- per month has been awarded towards the maintenance of his wife and minor child. Besides this, a sum of Rs. 7,000/- towards expenses has also been awarded. The suit was filed by the appellant for divorce under Section 13 of Hindu Marriage Act in which the said application was filed by the respondent-wife.
We have heard Sri M.D. Singh Shekhar, learned Senior Counsel along with Sri R.D. Tiwari-learned counsel appearing on behalf of the appellant and Ms. Rajni Ojha along with Sri R.N. Chaubey-learned counsel appearing for the respondent and have perused the record.
Submission of the learned counsel for the appellant is that once the interim maintenance of Rs. 25,000/- per month had been fixed by this Court vide order dated 20.12.2013 passed in First Appeal No. 466 of 2013 arising out of a Petition filed by the respondent-wife under Section 9 of the Hindu Marriage Act for Restitution of Conjugal Right, the enhancement of such maintenance amount to Rs. 32,000/- per month would not be justified. It is also submitted by the learned counsel for the appellant that though the salary certificate was filed by the appellant himself showing the total earnings of the appellant to be Rs. 1,26,461/- and after deduction of provident fund and income tax etc., take home salary to be 90,389/-, but the court below has not taken into account the other expenses and investments which the appellant has to make every month, details of which have been given in para-10 of the affidavit filed in support of the stay application. He has further submitted that in para-9 of the objections filed by the appellant in response to the application for maintenance filed by the respondent-wife before the trial court, the appellant had specifically stated that he has to spend money towards maintenance of his parents, who remain ill and their medical expenses is also to be given by the appellant. In the said paragraph, it has also been stated that the appellant has to spend some amount in travelling for attending various cases filed by the respondent-wife in Kanpur District Court. He thus, stated that without taking these expenses into account the amount of maintenance pendente lite of Rs. 32,000/- has been fixed, which is wholly unjustified.
Learned counsel for the respondent however submitted that in support of the objections raised in para-9, no oral or documentary evidence was adduced/filed by the appellant and as such, the said objection has rightly not been taken into consideration. It has also been stated that the deductions which have been shown in para-10 of the affidavit filed along with the Stay Application in this Court, were never placed before the trial court and that even otherwise the said deductions are in the form of investments being made by the appellant and not expenses incurred by him.
Having heard learned counsel for the parties and considered the facts and circumstances of the case, we are of the opinion that this appeal is devoid of merits and is liable to be dismissed.
While hearing an appeal, the appellate court has to pass a judgement in the light of the evidence or documents which were placed before the trial court. Documents and certain issues which are raised for the first time before the appellate court are not to be looked into.
On being asked, Sri M.D. Singh Shekhar, could not show to the Court any document which had been filed by the appellant in support of the averments made in para-9 of the objections filed before the trial court. In fact, the trial court has considered this aspect of the matter and stated that though the appellant has mentioned that he has to spend money towards medical expenses of his parents but since no documentary proof with regard to the alleged expenses had been adduced, the said plea could not be taken into consideration. In the absence of any proof having been filed, such finding, as has been arrived at by the learned trial court cannot be faulted. Similarly, with regard to the other expenses for travelling etc. of which mention has been made in Para-9 of the objections, no documentary proof to support the same also had been filed by the appellant before the trial court. As such the same has rightly not been considered.
The amounts mentioned in para-10 of the affidavit filed in this appeal in support of the stay application are such amounts which relate to insurance premiums and monthly installments paid towards the home loan, which are investments made by the petitioner and cannot be treated as expenses. Even otherwise, there is no mention of such kind of expenses in the objections filed before the trial court and as such, consideration of the same by the trial court was not possible.
The income of the appellant, undoubtedly is Rs. 1,26,000/- and odd, and as per the salary statement itself, the take home salary is over Rs. 90,000/-. While fixing interim maintenance, a Division Bench of this Court, vide order dated 20.12.2013, passed in First Appeal No. 466 of 2013, had not taken any evidence from the parties and had relied on the statement made by learned counsel for the appellant in that case that the appellant was getting Rs. 60,000/- to 70,000/- per month after all the deductions were made from his salary. Such finding cannot be said to be final and binding on the trial court. The trial court has, in fact, now gone through the evidence and has come to the categorical finding that the take home salary of the appellant is over Rs. 90,000/-. In the light of that, it has fixed the maintenance amount of Rs. 32,000/- per month, which is for the maintenance of the wife as well as the minor child. The same cannot be said to be unjustified so as to call for interference in appeal.
At this stage, Sri M.D. Singh Shekhar-learned senior counsel appearing on behalf of the appellant submitted that the appellant was not given sufficient opportunity to adduce the evidence from his side before the application under Section 24 of the Hindu Marriage Act filed by the respondent was decided and as such, he may be permitted to file a recall application and/or application for review of the said order and the Court be directed to consider further evidence before deciding the matter of maintenance afresh.
It is not for this Court to issue any such directions in this regard and it is always open to the appellant to take such recourse as may be available to him in law.
The appeal stands dismissed.
No order as to costs.
Order Date :- 30.4.2014 AS (Naheed Ara Moonis, J.) (Vineet Saran, J.)