RAJ KUMAR Vs. MOHINDER KAUR ALIAS KANTA RANI

JUDGEMENT

(1.) THE learned Court below on the basis of the affidavit filed on behalf of the wife has come to the conclusion that the petitioner's income is Rs. 500/ - per mensem. Of course the petitioner did not contradict these allegations and according to the learned counsel for the petitioner, this was a mistake of the counsel. The learned counsel contends that evidence has been led in the proceedings under Section 125 of the Code of Criminal Procedure where the employer of the petitioner has been examined and according to his statement the petitioner is getting Rs. 175/ - per mensem. However, there is no evidence to this effect on the file of this case. Since it is obvious that the petitioner's case went by default though due to his mistake or his counsel, yet the justice of the case would require that he be given opportunity to prove his side of the case.

(2.) MR . G.R. Majithia, learned counsel for the wife has pointed out that not a single penny has been given by the husband. I direct that the petitioner shall pay a sum of Rs. 100/ - per mensem from 6th of September, 1980 as ordered by the Court below and if the amount ultimately found to be paid to the wife as maintenance, is more than Rs. 100/ - the deficiency shall be made good in accordance with the order of the Court below. I accordingly set aside the order of the learned District Judge dated 8th of December, 1980, subject to the above mentioned observations. The petitioner may be allowed one opportunity to lead evidence in rebuttal by way of affidavits if any, and the Court may then determine the amount of maintenance to be paid to the wife. If the sum of Rs. 100/ - is not paid, the petitioner will not be entitled to lead any evidence in support of the plea. The wife may also be given opportunity, if so necessary.

(3.) IN application for payment of litigation charges in this Court, after hearing the learned counsel for the parties, I direct that the petitioner shall pay a sum of Rs. 50/ - to the respondent as litigation charges in this Court. This amount shall be paid by the petitioner before he is allowed to lead evidence. The parties are directed to appear before the learned District Judge on 16th of March, 1981. Petition allowed.