Judgment S.K.Chattopadhyaya, J. 1. The petitioner is the wife of the Opp. Party. Being aggrieved by the order dated 22.4.1994 passed by the Second Additional District Judge, Chaibasa in Matrimonial Suit No. 10/92 the petitioner has moved this Court. 2. The Opp. Party-husband filed the aforesaid suit against the petitioner mainly for a decree of divorce and other consequential reliefs. The petitioner appeared after being noticed and filed an application under Sec. 24 of the Hindu Marriage Act (hereinafter referred to as the Act). In the petition she has categorically stated that she has no independent source of income for her support and necessary expenses of the proceeding. She has also admitted in her petition that though she made best efforts, but she could not find any employment or any place to practice with the result that she is not in a position to maintain herself. 3. On the other hand, it is stated that the husband-Opp. Party is an employee in the Civil Court at Chaibasa having income of Rs. 3500.00 per month. Her father-in-law is a retired Government servant getting substantial amount of pension per month from the Government. 4. It will not be out of place to mention here that the petitioner earlier had filed a maintenance case in the Court of the Metropolitan Magistrate, Fifth Court, at Calcutta under Sec. 125 of the Code of Criminal Procedure. The said Court allowed maintenance at the rate of Rs. 400.00 per month. Being aggrieved, by the said order the husband moved the High Court at Calcutta in Criminal Revision No. 125/92 and the said High Court set aside the order of grant of maintenance to the petitioner. 5. On such application being filed under Sec. 24 of the Act before the Court below, by the impugned order, while rejecting the prayer for monthly maintenance to the petitioner, the Court below, however, allowed Rs. 500.00 as litigation expenses from the date of the order during the pendency of the suit. 6. Mr. Banerjee, appearing on behalf of the petitioner has submitted that though the learned Court below has not found that the petitioner was in a position to maintain herself, the Court exceeded its jurisdiction by not allowing monthly maintenance only because the petitioner lost in Criminal Revision No. 125/92 before the Calcutta High Court. 6. Mr. Banerjee, appearing on behalf of the petitioner has submitted that though the learned Court below has not found that the petitioner was in a position to maintain herself, the Court exceeded its jurisdiction by not allowing monthly maintenance only because the petitioner lost in Criminal Revision No. 125/92 before the Calcutta High Court. It is further submitted that there is no finding that the petitioner being D.M.S. is having so much earning that she could maintain herself. However, Mr. Banerjee very fairly submits that taking into consideration the fact that the husband-opposite party is receiving monthly salary of Rs. 3427.00 per month, the petitioner will be satisfied if she gets Rs. 500.00 per month as monthly maintenance. 7. Mr. Majumdar, learned Counsel appearing on behalf of the Opp. Party-husband, has, on the other hand vehemently opposed the submission made by Mr. Banerjee. He contends that the petitioner having lost his case before the Calcutta High Court is not entitled to get any maintenance during the pendency of the Matrimonial Suit. He further submits that the Court below should have come to a conclusion on the basis of the records already available before it that the petitioner was able to maintain herself from the income as Homoeopathic Doctor. 8. Sec. 24 of the Act, inter alia, postulates that when it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support, and the necessary expenses of the proceeding, it may, allow the application of the husband or the wife by directing the respondent to pay to the petitioner the expenses of the proceeding and monthly allowance during the pendency of the proceeding such sum as, having regard to the petitioners own income and the income of the respondent, which it may seem to the Court, as to be reasonable. 9. From the impugned order it appears that after considering the documents on record, the Court below has come to a definite finding to the effect as hereinunder:- - "I find no prima facie proof as to the income of the wife-respondent and it will not be proper in view of the aforesaid rulings cited on behalf of the wife respondent, to go into other connected papers on record to infer any income of the wife-petitioner (herein) from her Homoeopathic practice." 10. According to the above finding of the Court below it appears that the Court below could not arrive at a positive finding as to the income of the petitioner-wife. Even then the Court below has rejected the prayer of the petitioner for monthly allowance solely on the ground that she lost her case before the Calcutta High Court which was filed against an order under Section 125 Cr.P.C. The Opp. Party has annexed the order of the Calcutta High Court in his counter affidavit as Annexure-A. After detailed discussion, the Calcutta High Court has come to a finding that "the facts of this case are entirely different. The wife was not willing to live with the husband from the very beginning and inspite of numerous attempts on the part of the husband and his father to bring her to the matrimonial home, even after her examination was over, she could not go. At last the husband asked her by writing a letter to come within a particular date failing which he would consider suitable steps in the matter". 11. Having noticed these facts, the Calcutta High Court quashed the order of Metropolitan Magistrate awarding maintenance to the petitioner-wife. In my considered opinion, the order of the Calcutta High Court passed in a proceeding under Sec. 125, Cr.P.C. cannot go against the petitioner for paying maintenance under Sec. 24 of the Act. 12. Sub-sec. (4) of Sec. 125, Cr.P.C. contemplates that no wife shall be entitled to receive allowance from her husband under this section if she is living in adultery or if without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. 13. From the facts narrated in Annexure A, it appears that as because the petitioner, inspite of repeated requests by her husband, did not go to her matrimonial home, the Calcutta High Court has set aside the order of the Metropolitan Magistrate giving allowance to the petitioner. 14. In the instant case it is not in dispute that the husband-Opp. Party has filed the aforesaid suit for divorce and, as such, under Sec. 24 of the Act, a party who is not in position to maintain herself or himself, may file an application under Sec. 24 of the Act. 14. In the instant case it is not in dispute that the husband-Opp. Party has filed the aforesaid suit for divorce and, as such, under Sec. 24 of the Act, a party who is not in position to maintain herself or himself, may file an application under Sec. 24 of the Act. It is for the Court to consider on the evidence on record as to whether he or she is in a position to maintain herself or himself. In such view of the matter, in my considered opinion, the learned Court below has acted with material irregularity by refusing monthly allowance to the petitioner solely on the ground that she lost the proceeding under Sec. 125, Cr.P.C. before the Calcutta High Court. The Court below has failed to consider that these two are the quite distinct proceedings. 15. In the result, this application is allowed by setting aside that part of the order by reason of which the learned Court below has refused to grant monthly allowance to petitioner. Mr. Mazumdar is not agreeable to the suggestion made by Mr. Banerjee for payment of Rs. 500.00 per month to the petitioner. The Court below has found that the husband Opp. Party is getting monthly salary of Rs. 3427.00 per month. 16. Under these circumstances, I direct the Opp. Party to pay a monthly allowance of Rs. 400.00 per month to the petitioner during the pendency of the matrimonial suit. This sum must be paid to the petitioner on each and every 15th day of the month. As far as the litigation expenses are concerned, I am of the opinion, that the learned Court below has rightly directed payment of Rs. 500.00 from the month of April, 1994 till the disposal of the case. It is further clarified that the petitioner will be entitled to the aforesaid monthly allowance of Rs.400.00 from the date of the order i.e. 22.4.1994.