- (1.) THIS appeal is directed against the order dated 25.9.2008 passed by the learned Single Judge in W.P.(C) No. 4612/2008, which is time barred by 256 days, for which an application (I.A. No. 1970 of 2009) for condonation of delay has been filed. It has been stated in the application for condonation of delay that the appeal could not be filed on account of financial constraint of the petitioner, for which we find no substance as obviously it has been a ruse to avoid making payment of the amount which he had been directed to pay to the respondent -wife. However, in spite of the delay, we considered it just and appropriate to grant liberty to the counsel for the appellant to address us on the merit of the appeal.
(2.) COUNSEL for the petitioner -appellant submitted that although the appellant is trading in coal and is an income tax payee by filing returns to the extent of Rs.1,03,760/ -, he is not capable to pay a sum of Rs. 4,000/ - per month to his wife as maintenance. The plea in regard to the capacity of the appellant to pay this amount to the respondent -wife, first of all ought not to be allowed to be raised as he had given his consent before the learned Single Judge to pay this amount and yet he has filed this appeal before the Division Bench. Office objection was also raised as to whether this appeal can be held maintainable since the order passed by the learned Single Judge was on the basis of the consent granted by the appellant - husband in favour of the respondent -wife that he would pay a sum of Rs. 4,000/ - per month to his wife during the pendency of the matrimonial suit, which has been filed by the wife for restitution of conjugal life. The question as to whether the appellant has the capacity to pay the amount of Rs.
(3.) ,000/ - to his wife or not, is purely a question of fact and cannot be allowed to be raised at the appellate stage. But even if we were to ignore this technical bar, we are not prepared to accept the contention of the appellant -husband that although he is trading in coal and is an income tax payee with sufficient income, he is not capable of paying a sum of Rs. 4,000/ - to his wife, which she is entitled to receive, as it has also come out in evidence that the wife has no earning of her own as she is unemployed. Besides this, the capacity of the appellant -husband to pay the amount of maintenance, has already been gone into by the Family Court as also by the learned Single Judge. Thus, we do find no person to interfere with the order recording a finding of fact regarding the appellant's capacity to pay a sum of Rs. 4,000/ - to his wife. The appeal is absolutely without any merit and consequently it is dismissed.;