K.P. JAGADISH S/O PUTTASWAMY GOWDA Vs. SMT. RATHNA W/O K.P. JAGADISH

JUDGEMENT

(1.) REVISION is under Section 19(4) of the Family Courts Act questioning the award of maintenance to the respondent -wife vide order dated 5.6.2010. Along with the petition, Misc. Cvl 12648/11 is filed seeking stay of the impugned order.

(2.) THE core contention of the learned counsel is, while determining the quantum, learned trial judge has proceeded on surmises and conjectures on the presumption that his salary is Rs. 12,000/ -, and has quantified maintenance at Rs. 5,000/ - p.m. He submits petitioner is in possession of salary certificate which evidences the fact that the salary, to which he is entitled to is only Rs. 7,529/ - and after deduction, his take -home salary is Rs. 3,972/ -. On this basis, he submits it is impossible to comply with the direction of the trial court.

(3.) AS against that material in the material proposition in the pleadings and the evidence on record, petitioner took a firm stand that he had no such income, but produced no material. It must be observed here that it is he who is in the know of things as to what his salary is, and what amount he is drawing. Section 106 of the Evidence Act casts a burden on the person to establish facts and circumstances which are in his knowledge. The provision envisages 'When any fact within the knowledge of any person, the burden of proving that fact is upon him' Therefore, it is he who should have placed his salary certificate or other material from his employer to substantiate his salary is not Rs. 12,000/ - as alleged, but less than that. He did not do so. Consequently, it permitted the trial court to draw adverse inference. While doing so, the learned judge had no other option but to examine the evidence tendered by the wife which is ocular, no doubt. But when there is denial simplicitor without supporting his stand, the trial court could not have discarded the evidence, that is, statement of oath by the respondent -wife which had stood the test of cross -examination. Her deposition had transformed into legally acceptable evidence which the learned judge has considered in the absence of any material to the contra. In the fact situation, the impugned order cannot be termed as having been passed without examining the material evidence in the correct perspective.