SUSHILA BAI Vs. KAILASH KUMAR

JUDGEMENT

(1.) THIS revision has been preferred against an order of the Third Additional District Judge Indore dated 26-10-88 whereby he has granted maintenance to the petitioner @ Rs. 200/- p. m. and sum of Rs. 300/- as expenses of litigation.

(2.) THE brief facts of the case are that the petitioner moved an application under Section 24 of the Hindu Marriage Act for interim maintenance and expenses of litigation. She alleged that she has no source of income and she has also a son 10 months old. She was married to non-applicant Kailash Kumar who earns Rs. 3,000/- p. m. There is a Chemist shop of which he is the owner. She claimed a sum of Rs. 850/- as interim maintenance and a sum of Rs. 1,000/- as expenses of litigation. The non-applicant disputed the fact that the applicant has no Independent means of livelihood. It was alleged that she was running a beauty-parlour and earning Rs. 1500/- to Rs. 2,000/- p. m. The non-applicant alleged that he has no independent source of income. He is not the owner of the chemist shop but an employee of that shop and earning hardly Rs. 550/- p. m. The learned Court has come to the conclusion that the applicant has no source of income. The non-applicant has been disbelieved on the point that she is running a beauty-parlour. The learned A. D. J. has said that it was not necessary for him to enter and investigate the point whether Kailash Kumar is the owner of the Chemist shop or is an employee but this much is clear that at least he earns Rs. 550/- p. m. and he is liable to maintain his wife and son. Assuming that husband earns Rs. 550/- p. m. only an interim maintenance of Rs. 2000/- was granted by him from the date of the application and expenses of litigation estimated to be Rs. 300/ -.

(3.) THE learned A. D. J. has committed an error in avoiding to look into the fact as to whether the husband owns the shop or is a mere employee and he has not given any cogent reasons as to how he has come to the conclusion that husband earns Rs. 550/- p. m. This figure of Rs. 550/. has been arrived at by him without any basis. It has just been assumed without any basis. Once he had come to the conclusion that the petitioner had no independent source of income, he should have considered the amount of maintenance be awarded to the petitioner taking into consideration the income of the non-applicant. No serious effort was made by him. He has just assumed without any basis that at least the husband earns Rs. 550/- p. m.