# Gaurav Nigam v. Smt. Tripti Nigam

- **Citation:** (2014) 1 ILRA 397
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-03-31
- **Case number:** First Appeal No.251 of 2014
- **Bench:** Vineet Saran, Naheed Ara Moonis
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gaurav-nigam-v-smt-tripti-nigam-42785
- **Pages:** 4

## Headnote

First Appeal- Against order of granting
interim maintenance as Rs. 32000/-per
month without considering objection and
expenses-occurred during medical care of
the parents of husband/appellant-held-in
absence of any documentary evidence
regarding expenses-considering salary slip
of appellant as Rs. 1,26,000/-amount of
interim maintenance-not excessive-appeal
dismissed.

Held:Para-9
The income of the appellant, undoubtedly is
Rs. 1,26,000/- and odd, and as per the salary
398 INDIAN LAW REPORTS ALLAHABAD SERIES

statement itself, the take home salary is over
Rs.
90,000/-.
While
fixing
interim
maintenance, a Division Bench of this Court,
vide order dated 20.12.2013, passed in First
Appeal No. 466 of 2013, had not taken any
evidence from the parties and had relied on
the statement made by learned counsel for
the appellant in that case that the appellant
was getting Rs. 60,000/- to 70,000/- per
month after all the deductions were made
from his salary. Such finding cannot be said
to be final and binding on the trial court. The
trial court has, in fact, now gone through the
evidence and has come to the categorical
finding that the take home salary of the
appellant is over Rs. 90,000/-. In the light of
that, it has fixed the maintenance amount of
Rs. 32,000/- per month, which is for the
maintenance of the wife as well as the minor
child. The same cannot be said to be
unjustified so as to call for interference in
appeal.

## Text

1 All] Gaurav Nigam Vs. Smt. Tripti Nigam

397

92. In Brindaban Das & Ors. v. State of
West Bengal, AIR 2009 SC 1248, a twoJudge Bench of this Court took a similar
view observing that the court is required to
consider whether such evidence would be
sufficient to convict the person being
summoned. Since issuance of summons
under Section 319 Cr.P.C. entails a de novo
trial and a large number of witnesses may
have
been
examined
and
their
reexamination could prejudice the prosecution
and delay the trial, the trial court has to
exercise such discretion with great care and
perspicacity.

8. A similar view has been reiterated
by this Court in Michael Machado & Anr.
v. Central Bureau of Investigation & Ors.,
AIR 2000 SC 1127.

"99. Thus, we hold that though only a
prima facie case is to be established from the
evidence led before the court not necessarily
tested on the anvil of Cross-Examination, it
requires much stronger evidence than mere
probability of his complicity. The test that
has to be applied is one which is more than
prima facie case as exercised at the time of
framing of charge, but short of satisfaction to
an extent that the evidence, if goes
unrebutted, would lead to conviction. In the
absence of such satisfaction, the court should
refrain from exercising power under Section
319 Cr.P.C."

9. A perusal of the evidence reveals
that it has been accepted by P.W.1 that
Pravesh Singh was adopted by Bachachu
Singh. It has also come in evidence that
there was demand of motorcycle and
Rs.50,000/-only. No other persons was
beneficiary of the demand of the
motorcycle except Pravesh Singh. These
facts should have been considered by the
trial Court while passing under Section
319 Cr.P.C.

10. In view of this, and also
considering the fact that Magistrate has not
recorded his satisfaction as has been
envisaged in the decision of Hardeep Singh
v. State of Punjab and others [2014 (1)
SCALE 241], this criminal revision is liable
to be allowed and is hereby allowed. Order
dated 31.3.2014 is quashed. .

11. The matter is remanded back to
the trial court for deciding the application
under Section 319 of the Code of
Criminal Procedure afresh in the light of
the observations made above.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.04.2014

BEFORE
THE HON'BLE VINEET SARAN, J.
THE HON'BLE NAHEED ARA MOONIS, J.

First Appeal No.251 of 2014

Gaurav Nigam... Appellant
Versus
Smt. Tripti Nigam..... Respondent

Counsel for the Petitioner:
Sri M.D. Singh 'Shekhar', Sri R.D.Tiwari

Counsel for the Respondent:
Sri C.M. Rai, Ms. Rajni Ojha, Sri R.N. Chaubey

First Appeal- Against order of granting
interim maintenance as Rs. 32000/-per
month without considering objection and
expenses-occurred during medical care of
the parents of husband/appellant-held-in
absence of any documentary evidence
regarding expenses-considering salary slip
of appellant as Rs. 1,26,000/-amount of
interim maintenance-not excessive-appeal
dismissed.

Held:Para-9
The income of the appellant, undoubtedly is
Rs. 1,26,000/- and odd, and as per the salary
398 INDIAN LAW REPORTS ALLAHABAD SERIES

statement itself, the take home salary is over
Rs.
90,000/-.
While
fixing
interim
maintenance, a Division Bench of this Court,
vide order dated 20.12.2013, passed in First
Appeal No. 466 of 2013, had not taken any
evidence from the parties and had relied on
the statement made by learned counsel for
the appellant in that case that the appellant
was getting Rs. 60,000/- to 70,000/- per
month after all the deductions were made
from his salary. Such finding cannot be said
to be final and binding on the trial court. The
trial court has, in fact, now gone through the
evidence and has come to the categorical
finding that the take home salary of the
appellant is over Rs. 90,000/-. In the light of
that, it has fixed the maintenance amount of
Rs. 32,000/- per month, which is for the
maintenance of the wife as well as the minor
child. The same cannot be said to be
unjustified so as to call for interference in
appeal.

(Delivered by Hon'ble Vineet Saran, J.)

1. This is an appeal filed by the
appellant-husband challenging the order
dated 21.3.2014 passed on an application
filed by the respondent-wife under Section
24 of the Hindu Marriage Act whereby
maintenance pendente lite of a sum of Rs.
32,000/- per month has been awarded
towards the maintenance of his wife and
minor child. Besides this, a sum of Rs.
7,000/- towards expenses has also been
awarded. The suit was filed by the appellant
for divorce under Section 13 of Hindu
Marriage Act in which the said application
was filed by the respondent-wife.

2. We have heard Sri M.D. Singh
Shekhar, learned Senior Counsel along
with Sri R.D. Tiwari-learned counsel
appearing on behalf of the appellant and
Ms. Rajni Ojha along with Sri R.N.
Chaubey-learned counsel appearing for
the respondent and have perused the
record.

3. Submission of the learned counsel
for the appellant is that once the interim
maintenance of Rs. 25,000/- per month
had been fixed by this Court vide order
dated 20.12.2013 passed in First Appeal
No. 466 of 2013 arising out of a Petition
filed by the respondent-wife under
Section 9 of the Hindu Marriage Act for
Restitution
of
Conjugal
Right,
the
enhancement of such maintenance amount
to Rs. 32,000/- per month would not be
justified. It is also submitted by the
learned counsel for the appellant that
though the salary certificate was filed by
the appellant himself showing the total
earnings of the appellant to be Rs.
1,26,461/-
and
after
deduction
of
provident fund and income tax etc., take
home salary to be 90,389/-, but the court
below has not taken into account the other
expenses and investments which the
appellant has to make every month,
details of which have been given in para10 of the affidavit filed in support of the
stay application. He has further submitted
that in para-9 of the objections filed by
the
appellant
in
response
to
the
application for maintenance filed by the
respondent-wife before the trial court, the
appellant had specifically stated that he
has to spend money towards maintenance
of his parents, who remain ill and their
medical expenses is also to be given by the
appellant. In the said paragraph, it has also
been stated that the appellant has to spend
some amount in travelling for attending
various cases filed by the respondent-wife
in Kanpur District Court. He thus, stated
that without taking these expenses into
account
the
amount
of
maintenance
pendente lite of Rs. 32,000/- has been fixed,
which is wholly unjustified.

4. Learned counsel for the respondent
however submitted that in support of the
1 All] Gaurav Nigam Vs. Smt. Tripti Nigam

399
objections raised in para-9, no oral or
documentary evidence was adduced/filed by
the appellant and as such, the said objection
has rightly not been taken into consideration.
It has also been stated that the deductions
which have been shown in para-10 of the
affidavit filed along with the Stay Application
in this Court, were never placed before the
trial court and that even otherwise the said
deductions are in the form of investments
being made by the appellant and not expenses
incurred by him.

5. Having heard learned counsel for
the parties and considered the facts and
circumstances of the case, we are of the
opinion that this appeal is devoid of
merits and is liable to be dismissed.

6. While hearing an appeal, the
appellate court has to pass a judgement in
the light of the evidence or documents
which were placed before the trial court.
Documents and certain issues which are
raised for the first time before the
appellate court are not to be looked into.

7. On being asked, Sri M.D. Singh
Shekhar, could not show to the Court any
document which had been filed by the
appellant in support of the averments
made in para-9 of the objections filed
before the trial court. In fact, the trial
court has considered this aspect of the
matter and stated that though the appellant
has mentioned that he has to spend money
towards medical expenses of his parents
but since no documentary proof with
regard to the alleged expenses had been
adduced, the said plea could not be taken
into consideration. In the absence of any
proof having been filed, such finding, as
has been arrived at by the learned trial
court cannot be faulted. Similarly, with
regard to the other expenses for travelling
etc. of which mention has been made in
Para-9 of the objections, no documentary
proof to support the same also had been
filed by the appellant before the trial
court. As such the same has rightly not
been considered.

8. The amounts mentioned in para-10
of the affidavit filed in this appeal in support
of the stay application are such amounts
which relate to insurance premiums and
monthly installments paid towards the home
loan, which are investments made by the
petitioner and cannot be treated as expenses.
Even otherwise, there is no mention of such
kind of expenses in the objections filed before
the trial court and as such, consideration of the
same by the trial court was not possible.

9. The income of the appellant,
undoubtedly is Rs. 1,26,000/- and odd, and as
per the salary statement itself, the take home
salary is over Rs. 90,000/-. While fixing interim
maintenance, a Division Bench of this Court,
vide order dated 20.12.2013, passed in First
Appeal No. 466 of 2013, had not taken any
evidence from the parties and had relied on the
statement made by learned counsel for the
appellant in that case that the appellant was
getting Rs. 60,000/- to 70,000/- per month after
all the deductions were made from his salary.
Such finding cannot be said to be final and
binding on the trial court. The trial court has, in
fact, now gone through the evidence and has
come to the categorical finding that the take
home salary of the appellant is over Rs.
90,000/-. In the light of that, it has fixed the
maintenance amount of Rs. 32,000/- per
month, which is for the maintenance of the
wife as well as the minor child. The same
cannot be said to be unjustified so as to call for
interference in appeal.

10. At this stage, Sri M.D. Singh
Shekhar-learned senior counsel appearing on
400 INDIAN LAW REPORTS ALLAHABAD SERIES

behalf of the appellant submitted that the
appellant
was
not
given
sufficient
opportunity to adduce the evidence from his
side before the application under Section 24
of the Hindu Marriage Act filed by the
respondent was decided and as such, he may
be permitted to file a recall application and/or
application for review of the said order and
the Court be directed to consider further
evidence before deciding the matter of
maintenance afresh.

11. It is not for this Court to issue any
such directions in this regard and it is always
open to the appellant to take such recourse as
may be available to him in law.

12. The appeal stands dismissed.

13. No order as to costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.04.2014

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE DR. SATISH CHANDRA, J.

Special Appeal Defective No. 292 of 2014

State of U.P. & Ors. .Appellants
Versus
Vindhyavasni Tiwari & Ors........Respondents

Counsel for the Appellants:
C.S.C.

Counsel for the Respondents:
Sri Ashok Khare, Sri Seemant Singh, Sri
K.M. Asthana

Constitution of India, Art.-226- vacancy of
S.I. and Platoon Commander advertised on
09.05.2011-selection process started as per
U.P. Sub Inspector Service Rules 200830000 candidate short listed in 3rd steps
test-by 5th amendment Rule 15 relaxing 10
km. Race within 60 minutes for male
reduced to 4.8 km. Within 35 minute to 2.4
km. Race within 20 minutes-considering
unnatural death of a candidate during raceultimately misinterpreting interim order
entire selection quashed-board decided to
re-advertise vacancy as per amended Rulequashed by Single Judge-no interference
called for.

Held:Para-33& 34
33. In the case in hand an exercise with
more serious consideration and with expert
legal advice should have preceded the
decision taken by the senior police officers
sitting
together,
to
cancel
the
entire
selection. There is nothing to show that they
had taken any legal opinion from State Law
Officers, on the interim order passed by the
Court giving them option to either pursue
with the selections under the old rules or to
cancel the entire selections. The State
appellant has not placed any material before
us that it had taken into consideration the
expenditure incurred
in the selections
advertised in the year 2011, and the public
interest to be served in notifying the
selections afresh. The expenditure incurred
in the selections, the requirement of the
police officers at entry level, the aspirations
and legitimate expectation of more than
30,000 young men and women of the State,
who had crossed the 3rd level in the
selections, and the absence of any scientific
data which was required to be collected from
National Sports Colleges or experts in the
Sports Medicine has vitiated the decision to
cancel the entire selections. The entire
exercise is thus held to be wholly arbitrary
and unreasonable.

34. We do not find any good ground to
interfere with the judgment of learned
Single
Judge
in
setting
aside
the
Government Order dated 3.9.2013 and the
consequential orders dated 24.9.2013 by
which the selections were cancelled.

Case Law Discussed:
AIR 1983 SC 852; AIR 1983 SC 1143; AIR
1988 SC 2068; 1998(9)SCC 223; 1997(10) SCC
419; (2007) 11 SCC 605; 2007(5) SLR 237;
(1994) 6 SCC 151; (2002) 3 SCC 586; (2008