Court No. - 44

Case :- FIRST APPEAL No. - 820 of 2021

Appellant :- Kapil Tiwari

Respondent :- Smt. Dipti

Counsel for Appellant :- Hare Krishna Tripathi

Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Krishan Pahal,J.

The present appeal is directed against the judgment and order

dated 06.09.2021 passed by the Principal Judge, Family Court

Jhansi, on an application moved by respondent-wife under

Section 24 of the Hindu Marriage Act whereby an amount of

Rs.3,000/- per month had been directed to be paid towards

monthly maintenance during the pendency of the proceeding

drawn by the husband under Section 9 of the Hindu Marriage

Act for restitution of conjugal rights. Apart from that a lump

sum of Rs.5,000/- and Rs.100/-, on each date fixed, was

directed to be paid to the wife for participating in the said

proceeding.

The contention of the learned counsel for the appellant is that

the appellant-husband has no source of income. He is living in

his house without any employment. The assertion of him having

10 bighas of agricultural land is false, inasmuch as, the entire

land is Banjar.

Though, submissions in this regard have been made during the

course of argument but nothing has been stated in the affidavit

filed along with the stay application which has been sworn by

the father of the appellant.

The contention of the learned counsel for the appellant to

challenge the findings returned by the Family Court for fixing

his monthly income at the same rate as an ordinary labour earns

per month, is not substantiated from any material on record. It

is settled law that an able bodied man cannot deny to maintain

his wife on the premise that he is sitting at home and is not

earning anything or has no source of livelihood. He cannot take

this objection in the proceeding for maintenance drawn by the

wife that the wife is able enough to earn her own livelihood. In

the event of denial by the husband about his source of income,

sufficient evidence has to be brought before the Court, failing

which, adverse inference has to be drawn.

In the instant case, the Family Court, on the assertion of the

appellant-husband that he is not earning, has evaluated his

monthly income by taking the analogy of earning of a daily

labour.

On the submission of learned counsel for the appellant herein

that the appellant though has 10 bighas of land but the entire

land is Banjar, a pointed query has been made as to place the

relevant Khatauni and Khasra of the land in the name of the

appellant, nothing could be brought before us in answer to the

submission made by leaned counsel for the appellant in the

Court.

For the all the aforesaid reasons, we do not find any infirmity in

the order impugned.

The appeal is, accordingly, dismissed at the admission stage

itself.

Order Date :- 1.11.2021

P Kesari