Manmohan v. Smt.Meena and Muskan

solemnized with respondent Smt.Meena on 8.3.2000, according to Hindu rites and ceremonies at village Alirnudinpur, Distt.Gurgaon. After solemnization of the marriage, they resided and cohabited as husband and wife. Muskan daughter was born out of the said wedlock. The petitioner-husband was stated to have continuously treated the respondent-wife with cruelty, domestic violence and did not provide maintenance to them. They have no source of income to maintain themselves. On the contrary, the petitioner-husband is stated to be earning Rs.20,000/- per month from the job of driver, besides income from his agricultural land.

2. On the basis of aforesaid allegations, the respondent-wife and her daughter filed a petition (Annexure P1) for maintenance against the petitioner -husband, invoking the provisions of section 125 Cr.PC. They have also filed an application (Annexure P2) for the grant of interim maintenance, during the pendency of the main petition. CRR No.1451 of 2010 2

3. The petitioner-husband contested the claim of his wife and daughter and filed the reply (Annexure P4), inter-alia, pleading that as he has already given Rs.50,000/- to his wife in a petition (Annexure P5) under section 13-B of the Hindu Marriage Act, 1955 (for short “the Act”) in full and final settlement of her maintenance allowance, therefore, she is not entitled for any maintenance. That being so, he prayed for dismissal of the maintenance petition.

4. The Judge, Family Court, Gurgaon allowed the application (Annexure P2) and directed the petitioner-husband to pay a sum of Rs.2000/- per month to the respondents as interim maintenance, by virtue of impugned order dated 15.4.2010.

5. The petitioner-husband did not feel satisfied with the impugned order and filed the present petition. That is how, I am seized of the matter.

6. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant petition.

7. Ex facie, the argument of the learned counsel that since the petitioner-husband has already paid a sum of Rs.50,000/- to the respondents as is mentioned in the petition (Annexure P5) under section 13-B of the Act, so, they (respondents) are not entitled for any maintenance, is not only devoid of merit but misplaced as well in this context.

8. As is evident from the record that the parties filed a joint petition for a decree of divorce by mutual consent under section 13-B of the Act, wherein it was mentioned that she has received Rs.50,000/- and she has no claim against her daughter, which will remain in custody of the husband. The same would not come to the rescue of the petitioner-husband at this stage. The order dated 2.4.2010 (Annexure P6) of District Judge, Rewari would reveal that the divorce petition under section 13-B of the Act (Annexure P5) was dismissed, as husband failed to come to the Court. In that view of the matter, the another petition filed by the CRR No.1451 of 2010 3 husband under section 9 of the Act was dismissed as withdrawn, so as to enable him to file another divorce petition under section 13 of the Act.

9. In this manner, the petition for divorce by way of mutual consent under section 13-B of the Act did not mature at all, which was ultimately dismissed. In this view of the matter, in the absence of actual payment of Rs.50,000/- to the respondent-wife by the petitioner-husband in lieu of maintenance, the mere allegation in the petition (Annexure P5) that the husband has paid Rs.50,000/- to her pales into insignificance, unless and until proved otherwise by the husband by adducing cogent evidence during the course of trial of main petition in this respect.

10. There is another aspect of the matter, which can be viewed from a different angle. The Judge, Family Court, after taking into consideration the income of the husband as a driver, allowed interim maintenance, vide impugned order, the operative part of which is as under:- “Although it is contended on behalf of the petitioner that the respondent is earning Rs.20,000/- per month as driver and agriculturist but there is no documentary evidence on record to prove the income of the respondent. In absence of any documentary evidence, it cannot be said that the respondent is earning this much amount. Admittedly the respondent is a driver. These days even a driver is earning Rs.5000/- per month. The respondent being a driver, it can be presumed that he must be earning Rs.5000/- per month as driver. The respondent is under legal, moral and social obligation to maintain the petitioners being his legally wedded wife and minor daughter. The petitioner wife is entitled to equal status which she would have enjoyed if she continued to live with her husband. Hence, presuming the income of respondent as Rs.5000/- per month he is directed to pay a sum of Rs.2000/- per month to petitioners as interim maintenance allowance for herself and for her minor daughter from the date of filing of the application for interim maintenance till decision of the main petition besides Rs.2500/- as litigation expenses. Application is accordingly disposed of.” CRR No.1451 of 2010 4

11. Meaning thereby, the Judge, Family Court has recorded the valid reasons and allowed the application (Annexure P2) of interim maintenance. Such articulated order containing valid reasons cannot legally be set aside, while exercising the limited revisional jurisdiction of this Court, unless and until, the same is perverse and without jurisdiction. No such patent illegality or legal infirmity has been pointed out in it by the learned counsel for the petitioner.

12. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.

13. In the light of the aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of the trial of the main petition (Annexure P1), the instant petition is hereby dismissed, in the obtaining circumstances of the case.

14. Needless to state that nothing observed, here-in-above, would reflect, in any manner, on merits of the main case, because the same has been so recorded for a limited purpose of deciding the present petition.

12.10.2010 AS (Mehinder Singh Sullar) Judge