Sujata Rajput vs Rajesh Baru

Dhiraj Singh Thakur, J.—The present revision petition is preferred against the order dated 14-10-2010, passed by the learned Additional

District Judge, Matrimonial cases, Jammu, by virtue of which the petition/application filed by the petitioner herein u/s 30 of the Hindu Marriage Act

(hereinafter called the Act) stands dismissed. Following are the brief facts in the light of which the present controversy has arisen:--

A petition u/s 9 of the Act came to be filed by the respondent herein for restitution of conjugal rights claiming that the petitioner herein was his

legally wedded wife.

In response to the aforesaid petition u/s 9 of the Act, objections were filed by the petitioner herein wherein it was stated that the petition was

liable to be dismissed as the Court, cannot in law, acknowledge a marriage solemnized under threat and pressure.

During the pendency of the aforementioned proceedings, an application came to be filed by the petitioner wife also u/s 30 of the Act for grant of

maintenance pendente lite and expenses of proceedings. The said application came to be rejected by virtue of the order impugned by the Court

below on the ground that no evidence, at all, had been led by the applicant-petitioner, who would have enabled the Court to come to a conclusion

regarding entitlement of the petitioner in terms of Section 30 of the Act. It is this order which is challenged in the present petition.

Heard learned counsel for the parties. The crux of the argument of the counsel for the petitioner was that the application u/s 30 of the Act was

supported by an affidavit, which was sufficient to enable the Court below to pass an order for maintenance pendente lite as also for granting

expenses of proceedings and that it was not a case where no evidence was on record.

From a perusal of the order impugned, it becomes clear that after filing of the application u/s 30 of the Act, which was supported by an affidavit,

objections were filed by the respondent herein. It also appears that despite a number of opportunities given to the petitioner in that regard,

evidence was not led and finally, the right to lead evidence in support of the aforementioned petition came to be closed upon the statement of the

petitioner that she would have no objection if the evidence is closed. In those circumstances, the matter came to be posted for evidence of the

respondent who also made a statement that he did not want to produce any evidence. The matter was, accordingly, posted for arguments.

The first issue that arises for consideration is as to whether the Court below was obliged to pass an order granting maintenance on the basis of

the averments made in the petition/application under Sec. 30 of the Act, treating the averments therein as evidence only because the averments

made in the application were supported by an affidavit.

The second issue is as to whether the petitioner was, at all, entitled to receive maintenance in view of her own earning capacity which was far

better than that of the respondent husband.

With a view to understand the first issue, it has to be borne in mind that there is a difference between the pleadings and proof. Any pleadings

which are not proved, are invisible to the judicial eye unless they are admitted for which no proof at all is necessary and a judgment can follow in

terms of Order XII, R. 6 of the CPC. However, where the pleadings are not admitted as it was in the present case, they were required to be

proved.

According to the amended provisions of the CPC, evidence was supposed to be led by affidavits in terms of Order 18, R. 4 with copy supplied

to the other side. In the present case, that opportunity was, in fact, given to the parties. Having failed to avail of that right, it was not open to the

petitioner to claim a benefit simply on the basis of averments made in the petition under Sec. 30 of the Act, which averments were not proved in

terms of the Evidence Act. The mere fact that the application under Sec. 30 of the Act was supported by an affidavit was, therefore, totally

inconsequential. Pleadings cannot assume the shape of evidence in the absence of any specific order in that regard by the Court with due notice to

the other party.

During the course of hearing of the present petition, both the parties were asked to state their income as it is admitted that both of them are

employed. Respondent produced an income certificate which reflects that the gross salary received by the respondent in the year 2010 was

approximately Rs. 10,000/- per month as against the gross salary of Rs. 35,740/- per month received by the petitioner for the year 2013.

Although, the salary statement of the respondent is of the year 2010, this disparity in the income is too conspicuous to be ignored. The powers

exercisable by the Court in terms of Sec. 30 of the Act for ordering maintenance pendente lite has to be exercised only when it appears to the

Court that the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of

the proceedings. It is only in those circumstances that the Court on order maintenance pendente lite or the expenses to be paid. While doing this,

due regard has to be kept to the petitioner's own income as also the income of the respondent.

Looking to the disparity in income between the petitioner and that of the respondent, the petitioner ought to have produced evidence which

would provide conviction to the Court below to come to a conclusion that the petitioner's income was not sufficient for supporting herself and for

taking care of the expenses on the proceedings under the Act. In the present case, all that is stated is that the petitioner does not possess sufficient

resources to defend the proceedings and that she had hired the services of an Advocate, who has settled the counsel fee at Rs. 35,000/-. Apart

from this, the petitioner had prayed for Rs. 5000/- per month to defray the necessary expenses of the litigation. It was also stated in the petition

that the petitioner was serving in the Institute of Music and Fine Arts and was handicapped to meet the litigation expenses and to pay the counsel

fee. It was alleged that the petitioner was putting up on a rented accommodation and paying Rs. 3000/- per month in this regard and also bearing

other expenses to look after her ailing mother.

However, no details of income had been given by the petitioner with which her expenses could be compared by the Court with a view to

determine her rights under Sec. 30 of the Act. Material averments were, thus missing in the petition and in the absence of any evidence, subject to

right of cross-examination by the respondent, it would have been impossible for the Court below to determine the rights of the petitioner in the

petition/application under the aforementioned Section.

In my opinion, the Court below appears to have committed no illegality or perversity in passing the order impugned in the facts and

circumstances of the case. This petition is, accordingly, found to be without merit and is dismissed.