1 (957)WP.6580.2011.sxw mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION WRIT PETITION NO.6580 OF 2011 Paresh Vaity ...Petitioner Vs. Mayuri Vaity ...Respondent Ms. Vidya Gaikwad, Advocate for the Petitioner Mr. Sameer Tendulkar a/w. Ms. Sunita Khamkar for the Respondent CORAM : SMT. ROSHAN DALVI, J. DATED : 18TH AUGUST, 2011 P.C. : 1. The Petitioner husband has challenged the order of interim maintenance of Rs.3000/- p.m granted to the Respondent wife from the date of his application being 18th February 2009. The Petitioner has challenged the order on the ground of quantum upon his earnings and his wife’s earnings as also upon a unique ground of discrimination between the Petitioner and another Petitioner in another maintenance application in a petition which is stated to be for the same relief. 2. The Petitioner was earlier employed and was earning Rs.15000/- p.m. His service was terminated. A certificate of his employer was obtained. The certificate only showed his period of employment and the fact that no dues were pending against him. The learned Judge has specifically observed that his services were not terminated as 2 (957)WP.6580.2011.sxw claimed by him and hence she has observed that he could have left the employment only for better prospects. 3. The Petitioner claims to be a freelance photographer and hence claims to have no specific income. The Petitioner did not show his income by any documentary evidence. That is an aspect to the knowledge of the Petitioner himself and hence the onus would lie on him to prove his specific income under Section 106 of the Indian Evidence Act. 4. The Petitioner claims that the wife was earlier working in some company and earning a salary of Rs.4500/-p.m. The learned Judge therefore, did not consider her earlier income. The Petitioner did not show the continuance of her employment as claimed by him. 5. The learned Judge granted the maintenance of Rs.3000/-p.m. The order is reasonable, appropriate and in fact in lower side. 6. The Petitioner applied for review on the basis that he relied upon her bank statement. The learned Judge considered the bank statement in the review petition. The bank statement showed certain sporadic amounts and not any amount by way of salary which would have been credited to her account each month. The learned Judge accepted her contention that that was the income of her brother’s tourist business. Consequently, she rejected review petition. 7. So much for the parties ability to maintain themselves and to maintain the other. The order is correct and does not call for any 3 (957)WP.6580.2011.sxw interference. 8. The other contention of the Petitioner is that he had filed the petition for nullity of his marriage on the ground that it was not consummated and that his consent was not freely given. The Petitioner contends that in another petition also for nullity the order of maintenance was passed from the date of the order whereas in his petition the order of maintenance was passed from the date of the application. The petitioner, therefore, alleges discrimination under Article 14 of the Constitution. The Petitioner has produced the copy of his petition. His petition is for divorce and not for nullity of marriage though it is stated to be under Section 12 (a) and (c) and not under Section 13 of the Hindu Marriage Act. Hence the Petitioner contends that it was not consummated and his consent was obtained by force or fraud. 9. Counsel on behalf of the Petitioner states that it was on the ground of fraud. The averment of fraud is absent. The Counsel has pointed out that if the facts mentioned in the Petition were made known to the Petitioner he would have not given his consent for the marriage. She contends that this tantamounts to fraud. The learned Judge has not considered the question of nullity because the prayer is essentially for divorce though under Sections relating to nullity of marriage. 10.In any event the Petitioner would have to prove the facts alleged by him. Pending that proof the Respondent would remain his wife. For want of the specific averment of a charge as grave as the charge of 4 (957)WP.6580.2011.sxw fraud cannot lightly be imputed upon the Respondent. Ordinarily maintenance is granted from the date of the application. Consequently, in this Petition also grant of maintenance from the date of the application in the above circumstances cannot be faulted. Of course the Petitioner would be entitled to contend upon proof of the allegations made by him that he was not entitled to pay any maintenance and that matter be considered after evidence is led and the Petitioner has been cross examined in trial. 11.Consequently, the interim maintenance will have to be paid pending the trial. 12.Writ Petition is dismissed. (SMT. ROSHAN DALVI, J.)