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1996 DIGILAW 839 (DEL)

ASHA DARSHAN v. JAI DAYAL

1996-10-14

USHA MEHRA

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Usha Mehra,j. ( 1 ) SHRI Jai Dayal filed a petition for annulment of marriage against the present petitioner Smt. Asha under Section 12 (i) (b) read with Section 5 (ii) (c) of the Hindu Marriage Act. In the said petition the present petitioner filed an application seeking interim maintenance under Section 24 of the Hindu Marriage Act (in short H. M. Act ). The Additional District Judge vide order dated 9th December,1994 while disposing of her application awarded pendente lite maintenance of Rs. 1,000. 00 per month from the date of her application dated 11th November,1993 and litigation expenses of Rs. 2,200. 00. ( 2 ) IT is against this order the petitioner has felt aggreived, inter alia, on the ground that the amount awarded is too less. The respondent husband has various businesses wherefrom he is earning Rs. 18,000. 00 per month. Those are M/s Gogia General Store situated in a thickly populated merchandised area of New Govind Pura, Delhi. He has also got Kerosene Oil Depot. Further he is doing the business of selling the Ayurvedic medicines in Trans Yamuna. From all these businesses he is earning Rs. 18,000. 00 per month. Keeping in view the status of the respondent she claimed Rs. 3,000. 00 per month as interim maintenance and Rs. 5,500. 00 as litigation expenses. In reply to her application under Section 24 of the Hindu Marriage Act the respondent husband took the plea that he was to maintain his aged parents whom he was legally liable to maintain and that in a petition under Section 125 of Cr. P. C. the matter having been amicably settled between the parties whereby petitioner agreed to receive Rs. 400. 00 per month as maintenance. She is not entitled to claim anything more. It was in this backdrop that the impugned order was passed after taking into consideration all the averments and arguments advanced at the bar. ( 3 ) IN this revision petition the main contention of the petitioner is that the Trial Court has ignored the income of the respondent from other sources, namely, the Kerosene Oil Depot and the sale of Ayurvedic midicines. Moreover, no accounts of M/s Gogia General Store had been produced. The income having been withheld, adverse presumption ought to have been drawn against the respondent. In this regard Ms. Moreover, no accounts of M/s Gogia General Store had been produced. The income having been withheld, adverse presumption ought to have been drawn against the respondent. In this regard Ms. Geeta Luthra appearing for the petitioner placed reliance on the decision of our own High Court in the case of Smt. Renu Jain Vs. Mahavir Prashad Jain, AIR 1987 Delhi 43 where the Court held that:- "in deciding the maintenance particulars of daily transactions in the business furnished by way of evidence on behalf of wife should be looked into. Also properties of husband and his joint family and their business and social status should be considered. " ( 4 ) REFUTING the averments of the petitioner, Mr. M. R. Chawla appearing for the respondent contended that the petitioner agreed for permanent maintenance under Section 125 Cr. P. C. at Rs. 400. 00 per month. Now she is estopped from claiming more. The agreement was arrived at between the parties before the Metropolitan Magistrate on petitioner s application under Section 125 Cr. P. C. She did not press even for the maximum maintenance i. e. Rs. 500. 00. This clearly proves that she was satisfied with Rs. 400. 00 per month as permanent alimony. How could she claim more than Rs. 400. 00 by way of interim maintenance. The respondent filed an appeal against the impugned order but since he could not pay the amount, he got it dismissed as withdrawn. The petitioner voluntarily accepted Rs. 400. 00 and now she cannot claim more by way of interim maintenanc Moreover, no detail or break up had been given by her. On the contrary he had pleaded that Kerosene Oil Depot was running by his father and after the "surra" ban imposed by Delhi Administration the "surra" licence of the respondent was cancelled. He was no more manufacturing any Ayurvedic medicine nor selling the same. From Gogia General Store he is only making Rs. 700. 00 to Rs. 800. 00 per month. ( 5 ) AFTER considering the relevant contentions of the parties, the fact with regard to the cancellation of the "surra" licence has not been denied. The fact that parties entered into a compromise with regard to permanent alimony under Section 125 Cr. P. C. is also not disputed. Kerosene Oil Depot is being run by the father of the respondent. The fact that parties entered into a compromise with regard to permanent alimony under Section 125 Cr. P. C. is also not disputed. Kerosene Oil Depot is being run by the father of the respondent. This fact has not been clearly established on the record. But presuming that it is also run by the respondent with his father and Gogia General Store exclusively by him, still there was nothing before the Trial Court to come to the conclusion that the monthly income of the respondent was Rs. 18,000. 00. In the case of Smt. Renu Jain (supra) wife had given the break up and details. It was only thereafter the Court presumed that from those resources his income could not be less than Rs. 15,000. 00 per month. But in the present case except the bald statement of the wife and the oral rebbutal of the husband, there was nothing before the Trial Court to infer as to how much earning the respondent was making. It is in this background that the Trial Court presumed the income of the respondent husband at Rs. 3,000. 00 and awarded a sum of Rs. 1,000. 00 as maintenance inspite of the fact that in her petition under Section 125 Cr. P. C. she voluntarily accepted the maintenance of Rs. 400. 00 per month. Therefore, I find no infirmity in the impugned order. As regards the litigation expenses the Trial Court has awarded Rs. 2,200. 00. To my mind there is no infirmity in the same nor I see any merits in the petition. Dismissed. ( 6 ) IT may further be clarified that the amount of Rs. 20,000. 00 which was paid by the respondent to the petitioner that was in lieu of her istridhan and cannot be adjusted towards this maintenance. ( 7 ) WITH these observations, the petition stands disposed of.