Shrimanoj Kumar v. Smt. Dimple & Anr.

(1) Whether reporters oflocal paper may be allowed to see thejudgment? (2) To be referred to the reporter or not? (3) Whether thejudgmentshould be reported in the Digest?

JUDGMENT

ARUNA SURESH.J.(Oral)

1. Impugning the order of the Trial Court dated 21 December,2009 passed on an application ofthe respondents under Sections 24 and 26 of the Hindu Marriage Act(hereinafter referred to be as the 'Act')granting pendent lite maintenance to her and the minor daughter as Rs.5,000/- per month with further order of St CM(M)No.67/2010 Page I of[5] 2010:DHC:7180 Rs.5,500/- to be paid as litigation expenses, petitioner has filed this petition under Article 227 ofthe Constitution.

2. Learned counsel for the petitioner has submitted that Trial Court went wrong when it failed to consider that salary ofthe petitioner is only Rs.3,500/- per month while awarding maintenance ofRs.5,000/- to the respondents.

3. Trial Court while deciding the said application took into consideration the Bank statement of account of the petitioner and the manner in which he had been changing hisjob and accepting new jobs at lower salaries before awarding maintenance of Rs.5,000/- per month to the respondent and daughter ofthe parties. It has been observed by the Trial Courtthat:- "The respondent has nowhere explained any reason as to why he left the job with Cable Operator Major Suresh Yadav at Shalimar Bagh from where he got salary ofRs.6000/- p.m. and took up ajob with Carvan Travles atPitampura, Delhi at a lesser salary ofRs.5000/-p.m. Again it is not understandable and not explained by the petitioner as to why he has left the job with M/S.Carvan Travles and took up a private job with Sh.NP Goel at much lesser salary of Rs.3500/-p.m. The statement of accoimt ofhis bank accoimt filed by the petitioner shows that various cash deposits in this account in the sum of Rs.1,25,000/-, Rs.10,000/-, Rs.15,000/-, Rs.35,000/-, Rs,8000/-,. Rs.30,000/-, Rs.25,000/-, Rs.65,000, Rs.25,000/- and Rs.1,00,000/- so on and so forth. The petitioner CM(M)No.67/2010 2of[5] c has failed to account for such huge cash deposits in his bank account."

4. The court rightly observed that it went unexplained as to why petitioner had been leaving,one job after the other and accepting new jobs at much lesser salary. When petitioner was getting a salary ofRs.6000/- p.m.from Cable Operator Major Suresh Yadav at Shalimar Bagh, what made him leave his job.and join Carvan Travles at.Pitampura, Delhi for a lesser salary of Rs.5000/p.m. goes imexplained. It is also not known as to why petitioner further decided to leave the job with M/S.Carvan Travles and took up a private job with Sh.NP Goel at a lesser salary ofRs.3500/-p.m only. No person would leave his job of better salary to accept anotherjob at a much lesser salary, unless there are specific reasons forthe same. Petitioner has not explained as to when and under what circumstance he had change hisjobs not once,butthrice.

5. The court rightly took into consideration various cash deposits made in the account ofthe petitioner. Learned counsel for the petitioner has tried to submitthat his friend had taken some loan from the bank and in good faith, his friend has been depositing substantial amount of money in his account, which he in turn has paid to his friend's bank in his friend's name. This is an CM(M)No.67/2010 3of[5] unbelievable story which the petitioner has built up before this Court. His friend, who had taken loan from the bank, would be paying the loan amount directly to the bank and not through the petitioner. Admittedly, the statement of account placed on record by the petitioner before the Trial Court does not disclose that substantial amount which finds mentioned in the order of the Trial Court were actually deposited by petitioner's friend and also that petitioner had been depositing this amount in the bank account of his friend for repayment of loan, which he had allegedly taken. Petitioner admits that his Bank statement does not indicate any transfer of money in his friend's account.

6. Petitioner disputes that female child was bom out of the wedlock ofthe parties. When asked, counsel for the petitioner submitted that petitioner is ready and agreeable for DNA test to find out fatherhood ofthe child. He also submits that he would face the legal consequences; criminal as well as civil, in case DNA test is positive qua him.

7. Under these circumstances,conduct ofthe petitioner is crystal clear. To avoid payment of maintenance to his wife and child, petitioner has built up two stories, neither of which is believable or acceptable to the Court. Hence,Ifind no merits in this CM(M)No.67/2010 Page4of[5] petition and the same is accordingly dismissed.

8. Since petitioner himself has shown his willingness for DNA test to determine fatherhood ofthe child, the Trial Court shall pass necessary orders to the concerned authorities for conducting DNA test to determine fatherhood ofthe child. Expenses for DNA test shall be borne by the Petitioner/husband.In case,reports suggest that petitioner is the natural father ofthe child,the Court is at liberty to proceed against him in accordance with law.

ARUNA SURESH,J. JANUARY 19,2010 sb