IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2095 of 2007 ALPANA KUMARI Versus UJJWAL KUMAR DUTTA ----------- 2 1.9.2008 Heard Counsel for the petitioner and Counsel for the sole opposite party. This Court on earlier occasion having noticed that the order granting maintenance pendentelite was rejected by the Court below on 29.11.2006 in a perfunctory manner had not only set aside the same but had remitted the matter back by making certain observations in its order dated 31.5.2007 passed in Civil Revision No. 370 of 2007, which reads as follows:- “ In the impugned order dated 29.11.2006, the Court below has recorded the said submission of the parties but in stead of considering the application on the basis of well established proposition of law has dismissed the same on the sole ground that inconsistent statement has been made by the petitioner which stands to support the allegation of the Opposite Party that She is living with her father at her own will and has not started the litigation with clear hand and thus was not entitled to get pendent elite maintenance amount from the Opposite Party. On the said ground, the application was rejected. In the present matter, no such attempt has been made by the Court to arrive at a prima facie conclusion with respect to the income of the Opposite Party which is admitted 2 to be Rs. 800 per month. Moreover, without any specific evidence, the Court below has merely recorded the said allegation of the other side that the petitioner is earning Rs. 2,000/- per month from the Beauty Parlour being run at Laluchak, Bhagalpur. In my opinion, the Court below was required to examine the said facts and come to prima facie conclusion for the purpose of granting of ad interim maintenance. The same has not been done. In view of the aforesaid facts, this Court is of the view that the order dated 29.11.2006 cannot stand and it is accordingly set aside. The Revision application is thus allowed and the Court below is directed to examine the matter afresh in the light of the stands of the parties in this regard and also any evidence that they have to produce in support of their respective stand. Let the matter be decided afresh within a period of 2 months from today. It is made clear that even if the final judgment is passed in the matrimonial case, the same shall not stand in the way of the petitioner being granted an ad interim maintenance pendentelite and litigation expenses, if it is so found by the Court below.” Mr. Raj Kumar, learned Counsel appearing on behalf of the petitioner submits that when the matter was remitted back, the Court below has again committed a similar procedural error inasmuch as it has again been swayed away by the plea of the husband, opposite party that the petitioner, wife is running a Beauty Parlour and no findings has been recorded as 3 with regard to such income from the Beauty Parlour.. In this opinion of this court learned counsel for the petitioner seems to be correct. The Court below in fact has rejected the plea of the maintenance pendentelite of the petitioner, wife under Section 24 by holding that as the petitioner was running a Beauty Parlour, it would be presumed that she has sufficient income. There is however no such presumption of an income from a business of a Beauty Parlour unless evidence was adduced by the husband to this effect. Such onus was however not discharged by the husband and therefore the Court below was not correct in passing the impugned order refusing the grant of maintenance altogether to the petitioner only on the ground that she was running a Beauty Parlour business. There being in fact no findings on the basis of any evidence adduced on record that the petitioner had any independent source of income much less Rs. 2,000/- per month, this Court would not accept the oral plea of the husband that it has to be presumed that once a person is running Beauty Parlor, she must have sufficient income at least Rs. 2,000/- from such business. The next question is as to whether it could it be accepted that the husband had only an income of Rs. 1,000/- per month as was his case before the court 4 below ? Infact it was not difficult for the Court below to find out the real income on this score even if the petitioner, wife was not in a position to adduce evidence as with regard to that part of income. The Court below could have called for a report of the regular flow of income of the husband opposite party from such business of STD from the authorities of concerned telephone department/agency. Unfortunately, that has not been done and oral version of the husband that he had only an income of Rs. 1,000/- has been accepted. That being so, this Court would find that the impugned order has not been passed strictly as per the earlier direction of this Court and accordingly, the same is hereby set aside. The matter is remitted back to the Court below with a direction to pass an appropriate order for grant of maintenance to the wife petitioner under Section 24 of the Hindu Marriage Act in the light of the materials on record, within a period of three months from the date of receipt/production of a copy of this order. With the aforementioned observations and directions, this civil revision application is allowed. Rsh (Mihir Kumar Jha, J.)