Punjab-Haryana High Court
Rajnish Kumar Alias Pappi vs Naresh Kumari & Others on 14 July, 2010
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
C.R. No. 7260 of 2009
Date of Decision : 14.07.2010
Rajnish Kumar alias Pappi
.......... Petitioner
Versus
Naresh Kumari & others
...... Respondents
CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA
Present : Mr. Jai Bhagwan, Advocate
for the petitioner.
Mr. D. Khanna, Advocate
for the respondents.
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VINOD K. SHARMA, J. (ORAL)
This revision petition is directed against the order dated 12.9.2009, passed by the learned Civil Judge ( Sr. Div), Sunam.
The petitioner filed suit for grant of maintenance for herself and her children under Section 18 of the of the Hindu Adoption and Maintenance Act. She filed a petition as an indigent person, which was accepted, meaning thereby the respondent / wife has no source of income.
The learned trial Court in the facts and circumstances of the case, held the income of the petitioner to be Rs. 12,000/-(Rupees twelve thousand only) to Rs. 15,000/- (Rupees fifteen thousand only) per month, as he was helping his father in the business on Commission Agency, and fixed the maintenance @ Rs. 2,500/- (Rupees two thousand and five hundred only) per month for the respondent / wife and Rs. 1500/- (Rupees one thousand and five hundred only)per month each for the minor son and daughter. The total maintenance granted comes to Rs. 5500/- (Rupees five thousand and five hundred only)per month.
The learned counsel for the petitioner challenged the impugned order passed by the learned trial Court, on the plea, that in absence of provisions of grant of ad-interim maintenance no order could have been passed, therefore, the impugned order is without jurisdiction.
This contention of the learned counsel for the petitioner is misconceived. It is now well settled law that "the Court which is competent to pass final order can always pass interim order, therefore, the order cannot be said to be without jurisdiction.
The learned counsel for the petitioner thereafter contended, that the maintenance awarded is highly excessive. The learned Court has not taken note of the fact, that a sum of Rs. 1,000/- (Rupees one thousand only) per month was being paid to the respondent / wife under Section 24 of the Hindu Marriage Act, therefore, the said amount was liable to be adjusted, while fixing the maintenance.
It is also the contention of the learned counsel for the petitioner, that the learned trial Court wrongly assessed the income of the petitioner to be Rs. 12,000/-(Rupees twelve thousand only) to Rs. 15,000/- (Rupees fifteen thousand only) per month without there being any prima facie proof thereof.
On consideration, I find no force in this contention. Once the petitioner has failed to disclose his income, the Court therefore, had no other option but to assess his income on the guess work. It is admitted fact, that he is helping his father in the Commission Agency, and in view of the stand taken by him the learned Court rightly prima facie assessed the income of the petitioner to be Rs. 12,000/- (Rupees twelve thousand only) to Rs. 15,000/- (Rupees fifteen thousand only) per month, as the parties are yet to lead evidence, wherein it would be determined as to what amount the respondents would finally be entitled to.
No fault therefore can be found with the findings recorded by the learned Court below in fixing the maintenance.
However, there is force in the contention raised by the learned counsel for the petitioner, that the amount of Rs. 1000/- (Rupees one thousand only) per month being paid to the respondent / wife under Section 24 of the Hindu Marriage Act towards maintenance, was required to be adjusted out of the maintenance so assessed.
The learned counsel for the respondents does not oppose the adjustment of the payment made under Section 24 of the Hindu Marriage Act, out of the maintenance fixed. In view of what has been stated above, this revision petition is partly allowed, while upholding the order passed by the learned Court, the amount of Rs. 1000/- (Rupees one thousand only) per month being paid to the respondent / wife under Section 24 of the Hindu Marriage Act towards maintenance is ordered to be adjusted against the maintenance payable under the impugned order.
14.07.2010 (VINOD K. SHARMA) 'sp' JUDGE