Courts do NOT believe that husband is un employed because its common knowledge that the husbands, after filing for divorce, when directed to pay maintenance, claim that they are unemployed!!!
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* the Hon court says and we quote "..............It is the common knowledge that the husbands, after filing the petition for grant of divorce, when they are put to terms and directed to pay maintenance to their wife in pursuance to their statutory obligation under Section 24 of the Hindu Marriage Act, they claim that they are unemployed. In the instant case also, it is the admitted case of the petitioner that at the time when he filed the petition for grant of divorce on the basis of cruelty and desertion, he was earning `12,000/- per month plus 30 per cent HRA. In addition to this, he must have been getting some other benefits like dearness allowance, travelling allowance, etc., which fact has not been disclosed. All these facts clearly show that he is capable of earning at least approximately `15,000/- to `20,000/- per month. ........"
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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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* HIGH COURT OF DELHI AT NEW DELHI
+ C.R.P. NO.116 OF 2011 & C.M. NOS.15906 OF 2011, 15907 OF 2011
Decided on : 13th February, 2013
RAJA BABU SINGH ...... Petitioner
Through: Mr. Tarannum Ansari, Advocate.
Versus
VANDANA TOMAR SINGH ...... Respondent
Through: None.
CORAM: HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
1. This is a Civil Revision Petition filed by the petitioner under Section 115 CPC against the order dated 15.2.2011 passed by Ms. Reena Singh Nag, the learned Additional District Judge-2, North East, Karkardooma Courts directing the petitioner to pay a sum of `6,000/- per month by way of ad interim maintenance to the respondent and her minor child. In addition to this, the petitioner has also been directed to pay a sum of `10,000/- towards the litigation expenses.
2. I have heard the learned counsel for the petitioner. The main contention of the learned counsel is that a sum of `6,000/- which has been fixed by the learned trial court is highly excessive keeping in view the fact that the petitioner is not earning anything and only a notional income of `15,000/- has been considered as his income. It has been stated that the petitioner also has a widowed mother to be maintained apart from supporting his own self and, therefore, in such a contingency, directing the petitioner to pay a sum of `6,000/- per month to the respondent is highly excessive.
3. I have carefully considered the submissions and have gone through the record. The petitioner had filed a petition for divorce on the ground of cruelty and desertion. During the pendency of the said petition, the respondent filed an application seeking a sum of `10,000/- for herself and a sum of `5,000/- for her minor child by way of ad interim maintenance apart from the litigation expenses of `11,000/-. The respondent took the plea that the petitioner is earning `40,000/- per month whereas the respondent does not have any independent source of income nor does she own any movable or immovable property in her name. The petitioner filed reply to the said application and stated that at the time of filing of the application, he was unemployed and had no independent source of income prior to this. He had admitted that he was employed as Junior Research Fellow in the Institute of Pesticide Formulation Technology in Gurgaon and was getting a salary of `12,000/- per month apart from 30 per cent of HRA. He had further alleged that so far as the respondent is concerned, she had done B.Ed. and was allegedly working as a teacher in a play school run by her father. In this regard, no documentary evidence was placed by the petitioner before the trial court. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
4. After hearing the learned counsel for the parties and taking into consideration the fact that the parties are having a minor child of three years and the fact that the respondent/wife was not having any independent source of income, the trial court assumed that even though the petitioner may be unemployed but he had the capacity to earn `15,000/- per month as he had admitted to have earned the same before filing of the application. Therefore, a sum of `15,000/- per month was taken to be as the notional income of the petitioner and the court fixed a sum of `6,000/- per month as ad interim maintenance keeping in view the fact that the petitioner had to maintain his widowed mother also apart from his own self. The reasoning given in this regard by the trial court is as under :-
"........It is not disputed that non-applicant is M.Sc. He has placed on record a letter from Institute of Pesticide Formulation Technology dated 28.05.08 wherein he has been offered the placement of Jr. Research Fellow. Then there is another letter dated 31.03.10 which mentions that non-applicant had worked on the project titled „Development of Environment and User Friendly Natural Product Based Formulation for Household Purposes? awarded by Department of Chemicals and Petrochemicals, Ministry of Chemicals and Fertilizers from 09.06.08 to 31.03.2010. The application for visitation right is subsequent to the service period referred in the aforesaid letter dated 31.03.2010 so the contention of the counsel for applicant does assumes significance and is believable that non-applicant is presently gainfully employed. Moreover, he is an educated person and is capable of earning decently. His earlier income from the project work was `12,000/- + 30% HRA (`15,600/- p.m.). Applicant has claimed the income of non-applicant as `40,000/- but no documentary proof has been adduced in this regard. The bank statement of the non-applicant placed by him of State Bank of India, Gurgaon Branch, reflects the period of statement from 31.03.09 to 14.05.2010 and periodical amount credited in his SB account is `15,600/-. The contention of the counsel for non-applicant is that applicant being educated having done B.Ed. she is capable of earning herself to maintain her daily needs. She has placed reliance on the order of Hon?ble Justice Sh. Shiv Narayan Dhingra dated 01.10.08 in CM (N) 1153/08 titled „Kavita Prasad Vs. Ram Ashray Prasad. In that case, petitioner was an MBBS qualified doctor and keeping in view her qualification....."
5. I have gone through the above reasoning. I do not find any illegality, impropriety or incorrectness in the impugned order. It is the common knowledge that the husbands, after filing the petition for grant of divorce, when they are put to terms and directed to pay maintenance to their wife in pursuance to their statutory obligation under Section 24 of the Hindu Marriage Act, they claim that they are unemployed. In the instant case also, it is the admitted case of the petitioner that at the time when he filed the petition for grant of divorce on the basis of cruelty and desertion, he was earning `12,000/- per month plus 30 per cent HRA. In addition to this, he must have been getting some other benefits like dearness allowance, travelling allowance, etc., which fact has not been disclosed. All these facts clearly show that he is capable of earning at least approximately `15,000/- to `20,000/- per month. In such a contingency, it cannot be said to be totally unreasonable or inappropriate for the court to assume the notional income of the petitioner to the extent of `15,000/- per month and divide the same in the proportion of 2:5 and pay the maintenance to the respondent/wife, as has been done in the instant case. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
6. For the reasons mentioned above, I feel that there is no merit in the revision petition of the petitioner and accordingly, the same is dismissed.
V.K. SHALI, J.
FEBRUARY 13, 2013 'AA'
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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist
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