Counsel for Appellant :- Manoj Kumar Tripathi,Namit Srivastava
Hon'ble Shashi Kant Gupta,J. Hon'ble Pradeep Kumar Srivastava,J.
This appeal has been filed challenging the impugned judgement and order dated 6.12.2018 passed by the Addl. District & Sessions Judge (FTC II) / Family Judge, Hapur in Misc. case no. 102 of 2016 , Smt. Nirmesh Vs. Satish under section 24 of Hindu Marriage Act, arising out of Divorce Petition( Original Suit No. 291/2015, Satish Vs. Smt. Nirmesh under section 13 of Hindu Marriage Act, whereby the application of the opposite party filed under section 24 of Hindu Marriage Act has been partly allowed awarding Rs.3,000/- per month towards interim maintenance pendentilite , Rs. 10,000/- in lump sum as counsel's fees and Rs. 1000/- for attending the court on each date of hearing.
Learned counsel for the appellant submitted that the findings given by the court below are illegal, arbitrary and are based on complete misreading of the case and misconception of legal position relevant to the matter and has not considered the evidence on record in right perspective.
Heard the learned counsel for the appellant and perused the record.
Learned counsel for the appellant has submitted in the first instance that the applicant is an uneducated person and he somehow earns his livelihood by doing labour and has no source of income and there is no evidence on record in regard to the income of the appellant (husband) and the amount of Rs.3000/- per month as maintenance pendentilite and Rs. 10,000/- in lump sum for counsel's fees and Rs. 1000/- for attending the court below on each date of hearing have been fixed in an arbitrary manner.
In reply, the opposite party has stated before the court below that she is not much educated and she has no source of livelihood, whereas the appellant is working as an Engineer in Maidho Motors and earns about Rs. 50,000/- per month whereas she is an unemployed lady and is staying with her parents who are unable to maintain her.
As per the settled principles of law, the appellant, being a husband of the opposite party, even if he is not in any employment, is morally bound to discharge his legal obligation of maintaining his wife in any circumstances. The husband can not 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. The court below has also recorded a finding that the opposite party is no where employed/engaged and she has no source of income whereas the opposite party has stated that the appellant renders service in Maidho Motors as an Engineer and earns a sum of Rs. 50,000/- per month.
In this connection, reference may be made to the decision of the Delhi High Court in the case of Chander Prakash Bodhraj Versus Shila Rani Chander Prakash, AIR 1968 Delhi 174 wherein it has been held as follows:
"An able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he can not be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able-bodied person to show to the Court cogent grounds for holding that he is unable, for reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child. When the husband does not disclose to the Court the exact amount of his income, the presumption will be easily permissible against him."
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.3000/- per month towards maintenance pendente lite would not be treated to be on higher side rather it is too meager. It is also notable that though the opposite party, apart from claiming Rs.20,000/- towards interim maintenance pendenti lite per month, had also claimed Rs.46,000/- in lump sum as counsel's fees and for attending the court below on each date of hearing, but, the court below has awarded only Rs. Rs.3000/- per month as maintenance pendentilite and Rs. 10,000/- in lump sum for counsel's fees and Rs. 1000/- for attending the court below on each date of hearing.
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 Tribunal.
In view of what has been discussed, herein 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 dismissed.
Order Date :- 21.1.2019 MLK