Mr. M.M.S. Bedi, J (Oral):- Vide impugned order the petitioner has been directed to pay maintenance under Section 125 Cr.P.C. @ Rs.3000/- per month each to wife and his son respectively from the date of the petition.

2. Counsel for the petitioner has vehemently urged that no evidence has been produced by the respondent-wife on the record to establish the income of the petitioner.

3. Counsel for the petitioner has urged that the petitioner is absolutely unemployed and not earning anything whereas respondent-wife has admitted that she is capable of earning.

4. I have heard the learned counsel for the petitioner and with his assistance gone through the affidavit submitted by the petitioner before the Family Court, Gurgaon. A perusal of the affidavit indicates that the petitioner has not mentioned in his affidavit that he is incapable of earning anything or that he is not earning any money. He is admittedly an able bodied person. He was required to state at least about his earning capacity but his silence in his affidavit is indicative of the fact that he is taking uncertain and vague pleas regarding his inability to earn anything. It is settled principle of law that an able bodied man is presumed to be capable of earning by doing any manual/labour work. The averments of the respondent-wife in her petition in para 5 that he is having a rental income of Rs.2 lacs per annum and has income from grossery shop run by him at village Fazilpur and that he also has income from his agricultural land worth crores has not been specifically denied by the petitioner in his written statement. The petitioner was required at least to plead and prove as to what his source of income is to enable him to survive. It is the matrimonial obligation of the petitioner to contribute for maintenance of his wife and the son. In view of the unfair attitude of the petitioner and his evasive approach, no ground is made out for interference in the order passed by the Family Court.

5. I have also considered the contention of the learned counsel for the petitioner that respondent No.1 is capable of earning and is working in Vidya Niketan Senior Secondary School, Alipur Tehsil Sohana, District Gurgaon. Mere capacity of wife to earn or the factum of her earning will not dis-entitle her from getting maintenance which in the present case is only Rs.3000/- per month.

6. The petition is dismissed. The documents taken from counsel are returned to him.

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