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2005 DIGILAW 283 (JK)

Yash Paul v. Neelam Kumari

2005-10-21

J.P.SINGH

body2005
1. This civil revision is directed against order dated 27.08.2004 of learned Additional District Judge (Matrimonial Cases), Jammu, passed in petition under section 30 of J&K Hindu Marriage Act, 1980, whereby the petitioner has been directed to pay an amount of Rupees Two Thousand per month as maintenance pendentelite and Rupees Six Thousand as litigation expenses. 2. Mrs. Asha Koul, learned counsel appearing for petitioner, urges that the learned District Judge has fallen in serious error of law in allowing Rupees Two Thousand per month as maintenance pendentelite because the petitioner, having been rendered jobless due to the termination of his employment as PSO in police, is unable to pay the amount sanctioned by the learned District Judge. She further submits that the respondent has not been able to prove the facts as narrated in her petition and the evidence produced by the respondent is hearsay, which could not have been relied upon by the learned Trial Court. Learned counsel has referred to the statements recorded by the learned Trial Court during the currency of petition under section 30 of the J&K Hindu Marriage Act, 1980. 3. Sh. Sanjeev Kumar Sharma, learned counsel appearing for respondent, has reiterated the grounds taken by the learned District Judge in her order and has further submitted that the petitioner is a man of means who can with ease pay the awarded amount to the respondent, who has absolutely no source of income. He further submits that the payment of monthly allowance of Rupees Two Thousand for the wife and child, can not by any stretch of reasoning be termed as excessive or unwarranted. 4. I have considered the submissions of learned counsel for the parties. Jurisdiction under section 115 of the Code of Civil Procedure, Svt. 1997, is not a substitute of appellate jurisdiction. Whereas, the appellate jurisdiction, permits re-appreciation and re-appraisal of evidence, the revisional jurisdiction does not contemplate such an exercise. Section 115, as an exception to the general accepted jurisdiction of a revisional court, permits the exercise of revisional jurisdiction where the order impugned is said to have caused failure of justice. This is provided in section 115 clause (D) of the Code of Civil Procedure, Svt. 1997. Section 115, as an exception to the general accepted jurisdiction of a revisional court, permits the exercise of revisional jurisdiction where the order impugned is said to have caused failure of justice. This is provided in section 115 clause (D) of the Code of Civil Procedure, Svt. 1997. In order to see whether the order impugned has occasioned failure of justice, I permitted the parties to refer to the evidence led during the currency of proceedings under section 30 of the J&K Hindu Marriage Act, 1980. 5. The petitioner has admitted in this petition that after being rendered jobless and unemployed, he is rearing cattle and earning livelihood by selling milk. One of the witnesses of the petitioner namely Sh. Girish Kumar has in categoric terms stated that the petitioner knows how to work in a printing press because he has worked in a printing press. He further states that the petitioner has kept a buffalo and a cow, and sells milk to the public. 6. The admission of the petitioner that he is selling milk and of his witness that he is a skilled worker and had worked in a printing press, leaves no manner of doubt that failure of justice has not occasioned to the petitioner by order impugned in the petition. 7. That apart the petitioner, who is stated to have been disengaged from the police is obviously an able bodied person who can make use of his able body, skill and resources so as to discharge the onerous and moral obligations of providing succor to the legally wedded wife and the infant born out the wedlock. No husband or father can escape his moral responsibility of maintaining his better half and off springs, And liability under the J&K Hindu Marriage Act, 1980 to provide maintenance to his spouse and children, who are unable to maintain themselves. 8. Order passed by the learned Additional District Judge (Matrimonial Cases), Jammu, is well reasoned. It does not require any interference because I do not find any error of law, jurisdiction or any element of impropriety therein. This revision petition, therefore, fails and is dismissed. Records be sent back to the trial court forthwith.