Abhik Kunlar v. Sonia S. Arjvi

3. Counsel I"or thc appellant urged that the Family Court tell into crror III not appreciating the order 01' the Principle Judge, I:amily Court dated n.05.20l[2] made under Section 125 Cr.P.c. Counsel particularly clllphasi!.cd upon thc observations in paragraphs "7 and g 01" that order to state Ulat the respondcnt wife had earlier bccn employed and that the 't docul1Jents pertaining to those f~lcts and the bank account statcments. produced in those proceedings persuaded the learned Judge to dismiss the application under Section 125. It \vas cmphasil',ed that the respondent wife is a career oriented woman and has been working. 1n thesc eircul1lstanccs, submitted the eOl.JI"IscL the impugned order directing payment of Rs.5.000/pcr month was not.iustiticd. ],carned counsel has also relied upon the judgment or tl1is Cuurt in /)omon!'reet Kw/r v. Im./crmeet.flll1ejo & Ilnr. (Crl. RevY. 344/201 L ckcided 'In 14.052(12).

4. 'this Court has considered the SUhlllissions. !'hc J<"arnily Court, in the present instance, took into account the income arlidavit. filed by the appcllant husband as well as the othcr relevant materials such as the previous order and then proceedecltu hold as follows: - •

~~~~m~~esttl£liIl!!WilaU5i~~~~~~~~,!!";!!!!;~~!!,!!!~~;;;;<;,!",,,~~~~t;'!!! MAT.APP (I;C) 27 /20) 3 Page 2 • • ~ ~ I). l'he non-opplicol1l'i7llshul1(l hus token 0 plI'o thut u/p/icUl1till'ije is It'orkil1g 011(1 she has token this 1711'0 ol1fy to mis,'.!,1lide this c(JlIrt. IIe hus not stateel (IS t(J \I,here she is workil1c "-'. at present.:lpp/icul1t/11'ij"e 1l'US lI'(Jrkin,>!, hut/oc/ remains that ut presel1t OIJp/icol1t/11'ije is 110t \1'IJrking Whether she hos herselj" leji fhe job or due fo circlimstunces ereLitec! hy 17011-Upp/icUl1f/hus/Jul1e[1] she hud to resi,>!,11 is the (Iliestion 11,hich l1ee(J\- tried uncI UII1110t he eleeideel a/ fhis sfage. lhe JCIe! re/71oins Ihot UJ7plicol1l/wije of 17resel1f is 110t 1\'orkin,>!, ul[1]),where. }O. 1'171',Von-c1f7J7/icunl,'hlishol1d il[1] his ollic/ovit oj" income hus stoteel that he hus fhe hohiliry to l11uil1tuin his olc/ oged porel1ts hllf he hus olso siotec/ thol he hos u h!'olher, lJ/wh!Ji und a nephew which I71(,UI1S fhut his other hr(lflJer con (fl.\'() main/oin his purenl.\'. A1oreol'er l1()n-aJ7J7/icanl//7ushund is earnil[1],',!, R.I'.23J)()()I- per 111011117 as per his alliciol'il oj" incolJle, So fur us /iuhilily is concel'J1ed he himsd/ hus slufeel fhul Ihac is no one depenelen! IIpO/1 him \vhich means Ihm he has no other /iohililY ({('cepl f(J main/uin the OfJJ7/ico11l/11'ije. 111 the rel)/\'. l1on-opplicol1l //llIshund has slufed Ihal he is /ivini~ in renteel {fCCOIl717l0c/utioi[1] & il[1] his e,\jJenciiture column in his (fjlido)!it he has mentioned thut he is I'(.yin,"-'. the rent ojNs.·15()()/inc/lldin,"!. elec/ricil), hill Lind \1 (f1L'!' hil! 11'hich l77('ul?S thoI stil! he has Ns.19,()()(J/ il[7] his hond. "

5. Thc Court then hcld that having rcgard to the conspectus oj' circulllstanccs. thc appellant should pay ~5.()OO/- per month to thc wife li'olll the date ol"the application till disposal oCthe divorce pctition, (l. This Court is conscious 01" the I~lct thal though the ordcr under section 24 is itselr in thc nature or linal proceedings. nevertheless it is in order to assure sListenJnce and interim reliel' to the person moving it during the pendency 01" the main dispute. i.e.. divorce or other proceedings claiming substantive reliel" undcr lhe Ilindu Marriage Act. The scopc uf appellate reviev/ in such instances would necessarily be dilTercnt I'rom the compulsive jurisdiction which the Court would exercise in thc event of limll determination such as decree f"or dissolutioll or a judgment declining the divorec. In this Court's opinion there is a greater dcgree or dclCrcJl\.:c.............................~.~~~........-?,................,~!'?!"'="2 ~~ MAT.APP (';C)27 /201~) i)agc 3 ~ required to be given 10 the discretion exercised by the Trial Court unless the appellant is able to show glaring instances 01' overlooking of material evidence or an approach which is ll1ani Icstly or pat.ently erroneous or unsustainable in law. In the prescnt Celse, the appellant husband's ~dJidavit clearly stated that he was earning {23,OOO/- approximately. liel - in cash. The order or the Principal Judge declining relie!' under Section 125 Cr. P.e. was premised upon the wife being capable 01' earning since the documcnts availahle at that stage indicated that she had worked till 31.03.2.0 IO. ! !owever, the situation has now changed sincc the appellant movcd:h'. J:amily Courl for divorce. In 1hcse circurnstanccs. the Court is of die (jllln'on [kit the Award or Z),OOOl per rnonth cannot be held t.o [)l: unjustilic<: or un·,·;:asonablc.

7. The appeal i:'i, lhcrcJorc, vv'il:-lOUl merit and i:; accordingly disllliss~~d 310ni.~ with 'all the pending appli~;l.Li()ns ~ OCTOBVR 21) 2013 Ivk:,,/:~~. ~{/\.·V ~.N·~}:(;~J\ X~~lJ.j /!~~f1' (.TODG}:) ~ I\-j AIlVIL 'Vy,I,I.Y,n-o (.f~) ~)(';}!;) • ~~~~;'~~~~~~~~~~l~:~~~~I¥~::'-:=:~!-~~~~t!!.~~'";;~~~·'lE~~~·~~~~.l.:.~!.~_~,