Aruna Suresh, J.@mdashParties to the petition were known to each other, from before and they got married on 20th February, 2008 in Arya Samaj Mandir according to Hindu Rites. Petitioner claims that he was given a drink by the respondent and after having the same he lost his senses and it was in that condition that the alleged marriage took place. Criminal litigation is also going on inter se the parties.
2. Respondent filed a petition u/s 9 of the Hindu Marriage Act (hereinafter referred to as ''the Act'') against the petitioner seeking restitution of conjugal rights. In the said petition, she moved an application u/s 24 of the Act. Trial Court assessed income of the petitioner as not less than Rs. 30,000/- per month and vide its order dated 13th August 2009, awarded maintenance at the rate of Rs. 10,000/- per month to the respondent, besides Rs. 8,000/- as litigation expenses.
3. Aggrieved by the said order of the Trial Court dated 13th August 2009, present petition has been filed by the petitioner.
4. Mr. Sameer Chandra, counsel appearing on behalf of the petitioner has argued that petitioner is a commission agent and is earning about Rs. 5,000/- per month and therefore, maintenance awarded by the Trial Court is on much higher side as it is beyond the earning capacity of the petitioner.
5. It is not disputed that he owns a Santro Car and a Pulsar Motor Cycle. Petitioner has tried to state that this Car belonged to his father, which he inherited after his death. It is submitted that now the Car stands transferred in the name of his mother. When questioned, it was admitted that petitioner transferred the Car in the name of his mother after impugned order was passed against him. This conduct of the petitioner clearly indicates that he has no intention to pay maintenance to the respondent. He also owns a Pulsar Motor Cycle. Admittedly, loan raised by the petitioner for purchase of the Motor Cycle has been cleared off. Besides, petitioner has a mobile phone. Petitioner does not have any liability to maintain his mother as she owns a house and has sufficient rental income from the same. Petitioner has tried to emphasize that his TDS Form for the period 21st July, 2007 to 31st March, 2008 indicate that his annual income was Rs. 65,000/-
6. A person earning only about Rs. 5,000/- per month cannot maintain a Car and a Motor Cycle. He is a man of means. His TDS Form for the period 21st July, 2007 to 31st March, 2008 must not be reflecting his correct income.
7. Trial Court, therefore, rightly did not assess income of the petitioner on the basis of the TDS Form. While awarding interim maintenance to the respondent, Trial Court observed:
24. Although there is no evidence about the actual income of the non applicant the court can legitimately take into consideration the ability of the husband to earn a reasonable amount. I have no option but to indulge in guess work. Since the non applicant/husband is an able bodies person, who admittedly owns a santro car and a motor cycle and phone and maintaining all these things, so indulging in guess work I hold that the monthly income of the non applicant is not less than Rs. 30,000/- per month.
25. So far as the question of quantum of maintenance is concerned in ''Annurita Vohra v. Sandeep Vohra; 2004 (3) AD 253 '' and
8. As discussed above, Trial Court was right in assessing income of the petitioner tentatively in the absence of any proper proof of actual income of the petitioner. Petitioner has taken a plea that he is not legally married to the respondent. Prima facie his submission is without any force. Respondent has produced in Court some photographs of the marriage as well as video CD. CD was played on the computer and on viewing it, it was prima facie clear that marriage between the parties was performed according to Hindu Rites and Ceremonies.
9. Under these circumstances and in view of my discussion as above, I find no merits in this petition. The same is accordingly dismissed.
CM No. 14095/2009 (for stay)
10. With disposal of the petition, both these applications have become infructuous and the same are accordingly dismissed.
