[1.0] Present Civil Revision Application under Section 115 of the Code of Civil Procedure, 1908 has been preferred by the petitioner wife to quash and set aside the impugned order dated 11.08.2011 passed below Exh.13 in Hindu Marriage Petition No.28 of 2008 by the learned Additional Senior Civil Judge, Kalol, by which the learned trial Court has partly allowed the said application awarding the interim maintenance to the minor only at the rate of Rs.1,200/ p.m. and not awarding the interim maintenance under section 24 of the Hindu Marriage Act to the petitioner wife. [2.0] That the respondent husband has instituted H.M.P. No.28 of 2008 against the petitioner wife in the Court of learned Civil Judge (Senior Division), Kalol under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. That in the said application, the applicant submitted the application for interim maintenance under Section 24 of the Hindu Marriage Act for herself as well as for her minor child claiming Rs.5,000/ per month for herself and Rs.3,000/ per month for her minor child, who was at the relevant time aged 3 years. It was the case on behalf of the petitioner that the respondent husband is serving as an attendant in Torrent Pharmaceuticals having salary of Rs.6500/ per month and after doing overtime etc. he is getting Rs.9,750/ per month. It appears that having served with a copy of application Exh.13, though the respondent husband was serving in the Torrent Pharmaceuticals, the respondent husband submitted the application Exh.24 for getting interim maintenance from the wife at the rate of Rs.5,000/ per month and also claimed the advocate fees etc. It was the case on behalf of the respondent husband that the petitioner wife is serving in one Prolific Consultants (India) Ltd. and her salary was approximately between Rs.5,000 to Rs.6,000/ per month. In support of his above case, the husband submitted the salary slips at mark 25/1. The petitioner wife specifically denied and disputed the salary slip produced at mark 25/1 by submitting that the same is concocted and that she is not serving in Prolific Consultants (India) Ltd. as alleged. Despite the same and though the salary slip mark 25/1 produced by the husband was not even exhibited, relying upon the same the learned trial Court by impugned common order dated 11.08.2011 partly allowed the application Exh.13 by awarding interim maintenance at the rate of Rs.1,200/ per month to the minor child and denying the interim maintenance under Section 24 of the Hindu Marriage Act to the wife on the ground that she is serving in Prolific Consultants (India) Ltd. and has also dismissed the application Exh.24 submitted by the respondent husband.
[2.1] Being aggrieved and dissatisfied with the impugned order dated 11.08.2011 passed below Exh.13 in H.M.P. No.28 of 2008 by the learned Additional Senior Civil Judge, Kalol, in not awarding the interim maintenance to the petitioner wife, the petitioner wife has preferred the present Civil Revision Application.
[3.0] Ms. P.J. Joshi, learned advocate appearing on behalf of the petitioner wife has vehemently submitted that the learned trial Court has materially erred in not awarding interim maintenance to the petitioner wife. It is submitted that the learned trial Court has materially erred in relying upon the salary slip mark 25/1 produced by the husband which was disputed by the petitioner wife. It is submitted that as it was the specific case on behalf of the petitioner wife that the salary slip produced by the husband at mark 25/1 to show that the petitioner is serving was concocted and forged one, unless and until the said salary slip and the fact that the petitioner is serving in Prolific Consultants (India) Ltd. as alleged is proved by leading evidence, the learned trial Court ought not to have relied upon the salary slip produced at mark 25/1. It is submitted that the learned trial Court has denied the interim maintenance to the petitioner solely relying upon the salary slip mark 25/1 produced by the husband which was not only disputed but the same was not even exhibited. It is, therefore, submitted that the learned trial Court has materially erred in relying upon the document which was not even exhibited and therefore, the impugned order deserves to be quashed and set aside.
[3.1] It is further submitted by Ms. Joshi, learned advocate appearing on behalf of the petitioner that assuming without admitting that the petitioner was serving still the liability of the husband to maintain the petitioner and the minor will still be there. It is submitted that in a given case, to maintain the minor child and to maintain herself as the husband was not maintaining and taking care, the wife may serve as the wife and minor child cannot starve and therefore, the liability of the husband to maintain the wife and minor will still be there. It is submitted that the aforesaid aspect has not been considered by the learned trial Court. It is submitted that as the income of the husband is Rs.9750/ per month, considering three units, it is requested to award atleast Rs.6000/ per month for interim maintenance to the petitioner and the minor child.
By making above submissions, it is requested to allow the present Civil Revision Application.
[4.0] Shri Amit Chaudhary, learned advocate has appeared on behalf of the respondent husband. He has submitted that as it has been found that the petitioner wife was serving in Prolific Consultants (India) Ltd. getting the salary of Rs.6285/ per month, no illegality has been committed by the learned trial Court denying the interim maintenance to the petitioner wife. It is further submitted that the petitioner belongs to a well to do family and even her father has also sufficient income. Therefore, it is requested to dismiss the present civil revision application.
[5.0] Heard learned advocates appearing for respective parties at length. At the outset it is required to be noted that the petitioner wife submitted the application for interim maintenance under Section 24 of the Hindu Marriage Act for the maintenance for herself and minor child aged 3 years. It is not in dispute that the respondent husband is serving in Torrent Pharmaceuticals and even as per the salary slip on record, he was getting Rs.6500/ per month at the relevant time. Despite the fact that respondent husband was serving in Torrent Pharmaceuticals still the respondent husband claimed interim maintenance from the petitioner wife under Section 24 of the Hindu Marriage Act. This shows the conduct on the part of the respondent husband.
[5.1] From the impugned order passed by the learned trial Court, it appears that the learned trial Court has refused to grant interim maintenance to the petitioner wife observing that the petitioner wife is serving in Prolific Consultants (India) Ltd. and for that the learned trial Court has relied upon the salary mark 25/1 produced by the husband. However, it is required to be noted that the said salary slip mark 25/1 produced by the husband was disputed on oath by the petitioner submitting the said salary slip is concocted and forged one and that she is not serving in the said company as alleged. In view of the above as such the respondent husband was required to prove by leading evidence the salary slip mark 25/1 produced by him and to prove by leading evidence that the petitioner wife is serving in Prolific Consultants (India) Ltd. The respondent husband has failed to lead the evidence. Despite the above the learned trial Court has relied upon the salary slip mark 25/1 produced by the husband though the same was disputed and even the same was not exhibited by the learned trial Court. As per the cardinal principles of Evidence Act, unless the document is exhibited, the same cannot be relied upon by the Court. In the present case learned trial Court has relied upon the document mark 25/1 though the same was not exhibited. Under the circumstances, the learned trial Court has materially erred in denying the interim maintenance solely relying upon the salary slip which is not even exhibited. The respondent husband has not proved by leading evidence that the petitioner was as such serving in Prolific Consultants (India) Ltd. as alleged. Under the circumstances, the learned trial Court has materially erred in denying the interim maintenance to the petitioner wife.
[5.2] Now it is not in dispute that admittedly at the relevant time the respondent husband was getting the salary of Rs.6700/ per month. By now his income must have been increased. Still, even if we consider the income of the husband at Rs.6700/ per month, in that case also, considering three units i.e. one each for husband, wife and minor child, the petitioner and the minor child shall be entitled to atleast Rs.4000/ per month towards maintenance. It cannot be disputed that it is the duty of the husband to maintain his wife and the minor child. Looking to the price rise and the value of rupee etc. and the expenditure to be borne for maintenance and education of the minor child and also for maintenance of herself, it appears to the Court that the petitioner and the minor child are entitled to atleast Rs.4000/ per month towards the maintenance.
[6.0] In view of the above and for the reasons stated above, the present Civil Revision Application succeeds. Impugned order dated 11.08.2011 passed below Exh.13 in Hindu Marriage Petition No.28 of 2008 by the learned Additional Senior Civil Judge, Kalol is hereby quashed and set aside so far as not awarding the interim maintenance to the petitioner wife is concerned and the respondent husband is directed to pay the interim maintenance to the petitioner and the minor child in all at the rate of Rs.4000/ per month from the date of application and continue to pay the same between 1st and 10th of each calender month as and when due and payable. The arrears shall be paid within a period of two months from today. Rule is made absolute accordingly with cost which is quantified at Rs.5,000/ which the respondent shall pay to the petitioner wife along with arrears i.e. within a period of two months from today.
menon (M.R. Shah, J.)