IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.209 of 2008 SANJAY KUMAR GUPTA Versus GEETA DEVI ----------- 3 18/9/2008 Heard counsel for the parties. Counsel for the petitioner in this third round of litigation on the same issue has confined his submission only on the quantum of amount of monthly maintenance directed to be paid by the petitioner for his wife the opposite party. In the opinion of this Court an amount of Rs. 2,500/- per month for maintaining the wife, opposite party who is also blessed with a daughter from the petitioner, cannot be said to be excessive or illegal. This is so because the petitioner on his own admission is working as a Munim in some shop, which he claims to be an engagement on daily wage. Apart from it, it has come on the record that family of the petitioner has also Kirana business. Therefore, when the court below after considering the materials on records has come to a finding that the status of the family in which till yesterday (before 2 filing of matrimonial case by the petitioner), the opposite party, wife was having shelter and accommodation, could be continued only if a minimum sum of Rs. 2,500/- is paid per month, such finding therefore does not suffer from any perversity, so as to warrant interference of this Court exercising its revisional jurisdiction. The submission of Mr. Akhileshwar Prasad Singh, learned counsel appearing on behalf of the petitioner that there was partition suit in which family business of Kirana was given to the father and that he has not shared in it, has only to be noticed for its being rejected. The partition suit was filed only after institution of the maintenance case and therefore if that partition suit filed in the year 2004 has already been disposed of in the year 2004 without any contest, can easily lead to an inference that such compromise decree of partition was procured for creating defence in the maintenance case. Obviously, such decree cannot be clinching evidence on the issue 3 of income of the petitioner. That apart, the plea of the petitioner that he earns Rupees 50 to 60 per day does not get substantiated from the evidence of so called employer, namely, Paras Nath Prasad, who personally has shown complete unawareness in his evidence as to whether he was paying Rupees 50 or 60 per day to his employees including the petitioner. Such oral evidence without production of any supporting papers about payment of salary of the petitioner was rightly rejected by the court below. It is not in doubt that such shop in which petitioner is said to be employed would fall within the definition of shops under Bihar Shops and Establishment Act. Nothing has been brought on the records to show as to whether name of the petitioner finds place amongst the list of employees and incorporated in the licence if so what salary was paid to him. It is very interesting to note that the so called employer, whose evidence has been brought on the record in support of case of the 4 petitioner, in fact, was not even named in his written statement. Further he has taken a plea absolutely contrary to what has been pleaded by the petitioner in his written statement in as much as the case of the petitioner is that he was employed as a Munim on daily wages and used to work there for some time, by way of part time engagement and as such was never paid his salary on monthly basis. Such story of daily wage came to be introduced only on the basis of a witness who was actually not even named in the written statement which has been taken on the records. This Court would also find that the onus which was on the petitioner regarding disclosing of his correct income within the ambit of section 106 of the Evidence Act, was never sought to be discharged in a fair and honest manner. This being so, this Court would not find any reason to interfere with the impugned order and accordingly this application is hereby dismissed with a direction to the petitioner to pay the amount of maintenance both arrear and 5 current within a period of one month from the date of receipt/production of a copy of this order failing which the court below will be entitled to take coercive action against the petitioner. ( Mihir Kumar Jha, J. ) Abhay Kumar