The court upheld the maintenance order by considering the earning capacity of the petitioner and the needs of the respondents, and took adverse inference under Section 114 of the Indian Evidence Act due to the husband's failure to provide evidence.

JUDGMENT

(Prayer: Criminal Revision Petition has been filed under Section 397 r/w 401 of Cr.P.C., to call for the records and set aside the order passed in M.C.No.18 of 2019 dated 06.07.2022 on the file of the Family Court, Virudhunagar District, at Srivilliputhur and allow this criminal revision petition.)

1. This petition is filed to set aside the order passed in M.C.No.18 of 2019 dated 06.07.2022 on the file of the Family Court, Virudhunagar District, at Srivilliputhur.

2. The petitioner/husband filed the revision petition challenging the maintenance order granted in favour of the respondents herein. The first respondent is the wife and second and third respondents are his children. The petitioner married the first respondent on 12.04.2012. Out of their wedlock, the second and third respondents were born. Since both are female children, the petitioner advised the first respondent to get treatment for birth of male child. This led to a dispute. In view of the above dispute, the wife left the matrimonial home and she is living with the children in her parents home. Subsequently, the petitioner filed the H.M.O.P.No.74 of 2019 for divorce. In the said circumstances, the wife made a complaint against the petitioner. Thereafter, in view of the above strained relationship, she filed the maintenance claim against the petitioner in M.C.No.18 of 2019. She further stated that the petitioner is working as engineer in USA and he earn more than Rs.77 lakhs per year. In the said circumstances, he is liable to pay the monthly maintenance to the respondents of Rs.50,000/-.

3. The husband denied the allegation made by the first respondent and also specifically stated that he lost his job due to the Corona in USA and now, he is working in a private company and his salary is Rs.15,000/- per month. He also stated that the allegations made by the first respondent is not correct. The proceedings before the learned Family Court in H.M.O.P.No.74 of 2019 seeking interim maintenance is also pending. Hence, he seeks dismissal of the maintenance claim petition.

4. To prove the maintenance, the petitioner namely wife examined herself and her father as P.W.1 and P.W.2 and marked Ex.P1 to P.11. The respondent did not examine himself as party to the proceedings and examined one Naveen as R.W.1 to prove the subsequent employment and his earning of monthly income of Rs.15,000/-, which were marked as Ex.R1 to Ex.R3. The learned trial Judge considered the evidence and granted monthly maintenance of Rs.10,000/- to the first respondent and Rs.20,000/- to each of the second and third respondents. Totally, the maintenance amount is Rs.50,000/-. The learned trial Judge disbelieved the evidence of the R.W.1 and the documents with specific finding that the case of the husband, he joined duty on 30.04.2020 is a false one. The petitioner/ husband challenging the maintenance order filed this revision.

5. The learned counsel appearing for the petitioner submitted that there was no proof that the petitioner is earning more than Rs.77 lakhs per year in USA. Further, the learned trial Judge, erroneously disbelieved the evidence of R.W.1 and Exs.R1 to R3. Hence, this Court is to consider the evidence in a proper manner and re-appreciate the evidence and render justice.

6. The learned counsel appearing for the respondents submitted that the petitioner adduced the oral and documentary evidence to prove the income of the petitioner/husband. When the wife specifically took a plea and deposed before the Court that he earned more than Rs.77 laksh per year and also produced some material to show that he was earning said amount, the initial burden on the wife to prove her income is established. To disprove the same, the husband did not examine himself as witness to deny all the facts and also did not appear before the Court to prove his case and the defence case. In the said circumstances, the absence of the evidence on the part of the husband, the learned trial Judge correctly held that t