A party, who claims that the trial Court should have recorded a finding about husband's income, ought to have afforded an opportunity to the trial Court to do so. Rather has chosen the track of withholding from the Court crucial information well within his knowledge.
15. Petitioner has not even shown by placing on record of this petition as to what were the documents placed on record by him before the trial Court, on the face of the fact that the respondent's reply and pleadings opposing the application for maintenance are blissfully and deliberately silent on respondent's own sources of income and actual income.
16. In the background and the manner in which the respondent has chosen to defend the proceedings and dragged the trial Court in the field of speculations, it does not lie in the mouth of such a party to express a grievance that the trial Court has not recorded a finding on point of income of husband.
17. While the grievance that finding about husband's income is not recorded is factual, petitioner has to blame himself for this, as he alone is responsible for such failure for the reasons recorded in four foregoing paras.
18. As noted above, the petitioner is responsible for dragging the Court in the field of speculation and, therefore, the Court has to guess as to what shall be the paying capacity of the respondent. The order fixing the amount of maintenance, therefore, cannot be faulted for any reason, whatsoever.
19. Petitioner's reliance on various judgments cited at bar do not have any bearing in the light of conduct of the petitioner of withholding material facts from the record. No precedent can help a party who, by his conduct, prevents the Court from adjudication, and then exerts to assail the Judgment by raising technical pleas.
Mukesh S/o Kanhaiyyalal Gupta Vs. Neha W/o Mukesh Gupta
Reported in : 2008(6)BomCR433; 2008(5)MhLj412;2008 (6) AIR Bom R 143
Judge : A.H. Joshi, J.
Subject : Family
Decided On : Jun-03-2008
The respondent has a mobile phone as well as land line connection. 7. The petitioner herein, however, has failed to give any particulars about his income which could be foundation as a matter of reliance even without further enquiry and proof. Rather has chosen the track of withholding from the Court crucial information well within his knowledge. 17. While the grievance that finding about husband's income is not recorded is factual, petitioner has to blame himself for this, as he alone is responsible for such failure for the reasons recorded in four foregoing paras.
Judgment:
A.H. Joshi, J.1. Rule. Rule is made returnable forthwith and heard by consent.
2. By impugned order, wife's application for interim maintenance pending Hindu Marriage Petition is allowed, directing the husband to pay alimony @ Rs. 10,000-00 per month and Rs. 8000-00 towards litigation expenses.
3. Learned Advocate Mr. Tamaskar for the petitioner emphasized the point that it is the duty of the trial Court to record a finding on the aspect of income of the husband before arriving at the figure of the maintenance the wife would be entitled.
4. It is crucial to refer to the pleadings.
5. In the application for interim alimony, the petitioner-wife has made certain averments relating to the financial status of the respondent, which can be referred to as below:
(a) In Paragraph 6 of the application:
that the respondent has accounts in various Banks and distributorships. As disclosed to the petitioner-wife by the respondent, his annual income is Rs. 10,00,000-00 to Rs. 12,00,000-00 per annum.
(b) In para 7:
that the income shown in the Income-Tax Returns is far below the actual income. She has also averred in para 4 that the respondent is staying jointly with his kins, namely Kanhaiyalal, Dinesh Gupta etc., at Durg in a house which is placed in market area and is worth Rs. 25,00,000-00 to Rs. 30,00,000-00. The family house has two floors having 2500 sq.ft., each. The respondent has a mobile phone as well as land line connection. Monthly bills of the mobile and telephone run around Rs. 2,000-00. The family owns property worth a crore.
(c) In para 9:
that the family expenses of the respondent are to be Rs. 30,000-00 per month and that the family members lead a luxurious life.
6. These crucial averments contained in the application have been replied by the respondent, partially with a plain denial and partially with evasive denial. All that is averred in paras 11 and 12 of the reply is that the petitioner-wife's parents are multi-millionaires and she does not need any support.
7. The petitioner herein, however, has failed to give any particulars about his income which could be foundation as a matter of reliance even without further enquiry and proof.
8. It is in this background, parties proceeded with the hearing of application.
9. The trial Court has dealt with the pleadings and decided the application.
10. The trial Court found that from the reply it is seen that nobody is depending upon the petitioner, except the petitioner and two children, and considering the sources of income of the respondent and further considering expenses required for petitioner, the Court found that the maintenance pendente lite at the rate of Rs. 10,000-00 per month and litigation expenses of Rs. 8,000-00 shall be appropriate.
11. Entire emphasis as a ground of challenge is that the learned trial Court did not record the finding as to income of the husband.
12. Learned Advocate Mr. Tamaskar has placed reliance on following judgments to substantiate his contention:
(a) Radhika v. Vineet Rungta : AIR2004Delhi323 , (b) Smt. Pushpa @ Pooja v. State of U.P. and Ors. : AIR2005All187 , (c) Mukesh Mittal v. Seema Mittal : AIR2006Delhi145 , (d) Harinder Jeet Kaur v. Mohinder Paul Singh and (e) D. Nirmala Devi v. V.M. Dhanasekaran : AIR2007Mad330 .
13. Insofar as this aspect urged by the petitioner is concerned, it is necessary to advert to rival pleadings which this Court has referred to in paragraph Nos. 5 to 7 above.
14. A party, who claims that the trial Court should have recorded a finding about husband's income, ought to have afforded an opportunity to the trial Court to do so. Rather has chosen the track of withholding from the Court crucial information well within his knowledge.
15. Petitioner has not even shown by placing on record of this petition as to what were the documents placed on record by him before the trial Court, on the face of the fact that the respondent's reply and pleadings opposing the application for maintenance are blissfully and deliberately silent on respondent's own sources of income and actual income.
16. In the background and the manner in which the respondent has chosen to defend the proceedings and dragged the trial Court in the field of speculations, it does not lie in the mouth of such a party to express a grievance that the trial Court has not recorded a finding on point of income of husband.
17. While the grievance that finding about husband's income is not recorded is factual, petitioner has to blame himself for this, as he alone is responsible for such failure for the reasons recorded in four foregoing paras.
18. As noted above, the petitioner is responsible for dragging the Court in the field of speculation and, therefore, the Court has to guess as to what shall be the paying capacity of the respondent. The order fixing the amount of maintenance, therefore, cannot be faulted for any reason, whatsoever.
19. Petitioner's reliance on various judgments cited at bar do not have any bearing in the light of conduct of the petitioner of withholding material facts from the record. No precedent can help a party who, by his conduct, prevents the Court from adjudication, and then exerts to assail the Judgment by raising technical pleas.
20. Petition, therefore, does not call for interference. It is accordingly dismissed. Rule is discharged. In the circumstances, parties shall bear own costs.
Needless to observe that considering the Hindu Marriage Petition to be of 2007, the trial Court would give necessary precedence thereto.
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