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Judgment
Ajay Mohan Goel, Judge (Oral)
By way of this petition, the petitioner has assailed the order passed by the Court of learned Additional Principal Judge, Family Court, Sarkaghat, passed in Case No.15 of 2025, titled Jyoti Thakur and another versus Sunil Kumar, decided on 25.05.2025. In terms of the order, the application filed by the respondents herein under Section 144 BNSS for grant of maintenance to the applicants, who happen to be the wife and minor son of the present petitioner, has been disposed of by the learned Court below in the following terms:-
“In view of my findings above, the petition partly succeeds and the same is hereby allowed. The petitioners are awarded Rs.6,000/- per month (i.e. Rs.2,500/- to petitioner No.1 and Rs.3,500/- to petitioner No.2) as maintenance for subsistence from date of filing the petition. The copy of this order be supplied to the parties free of cost. The file after completion be consigned to the record room.”
Learned counsel for the petitioner has argued that the impugned order is not sustainable in the eyes of law, as the learned Court below has erred in not appreciating that the entire income of the petitioner is only Rs.6,100/-. He submitted that in light of this fact, coupled with another that the minor son of the petitioner is residing with him, as has also been certified by the Gram Panchayat, the impugned order is not sustainable in the eyes of law.
We are not convinced by the contentions raised by the learned counsel for the petitioner.
The certificate (Annexure P-2), which is being pressed to assail the impugned order, issued by a Junior Engineer of Jal Shakti Section, Marhi, is dated 18.07.2026. The order under challenge is dated 25.05.2026. Nothing prevented the petitioner from placing such like material on record before the learned Court below before the decision of the application. It is a matter of record that such like certificate was not placed before the learned Court below, at any stage.
It is settled law that when there is a challenge to a judicial order, then, the veracity of the order has to be tested on the basis of the material which is available before the learned Court below and material not before the Court on record cannot be ordinarily taken into consideration while testing the legality of the order under challenge.
Similarly, the certificate issued by the Gram Panchayat to the effect that the minor son of the petitioner is also residing with the petitioner is also dated 18.07.2026, i.e., after the passing of the order, which according to us is nothing but, apparently a procured certificate by the petitioner to benefit his case.
The reasoning which has been given by the learned Court below while awarding an amount of Rs.6,000/- in all, i.e., Rs.2,500/- in favour of the wife and Rs.3,500/- in favour of the minor son, reads as under:-
“Coming to the quantum part, the petitioner No.1 has alleged that the respondent works in IPH department and earns Rs.30,000/- per month. There is no proof of the income of the respondent as salary slip. Rather there is also no document to show that the respondent is working in the IPH department. Hence, his income is taken to be that of a daily wager and assessed as Rs.12,000/- per month as per the prevalent rates notified by the Govt. of the govt. of HP. So, the petitioner No.1 is granted Rs.2,500/- per month and petitioner No.2 being a growing child is awarded Rs.3500/-per month as maintenance.”
The order demonstrates that the income of the petitioner has been assessed by the learned Court below on the basis of the income of a daily wager as per the prevalent rates notified by the Government of Himachal Pradesh, which as per this Court is a reasonable approach adopted by the learned Court below in arriving at the amount of maintenance.
It is settled law that a husband or a father, who may otherwise be earning nothing, but, is a hale and hearty person, owes a responsibility and duty to maintain his wife and child.
Otherwise also, an amount of Rs.2,500/- per month awarded to the wife and Rs.3,500/- per month awarded to the minor son, cannot be said to be such an exorbitant amount so as to call for any interference by the Court.
Therefore, as we do not find any infirmity in the order under challenge, the present petition is dismissed in limine.
Pending miscellaneous applications, if any, also stand disposed of.