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2013 DIGILAW 445 (HP)

Shailender Attri v. Kavita Sharma

2013-05-17

RAJIV SHARMA

body2013
JUDGMENT : Rajiv Sharma, J. The present petition is directed against the order, dated 10.05.2011, passed by the learned District Judge (Forest), Shimla, H.P., in Petition No. 49-S/6 of 2011. 2. Key facts necessary for the adjudication of this petition are that marriage between petitioner and respondent was solemnized on 10.08.2002. They were blessed with one daughter, namely Ishita on 08.05.2003. She is presently residing with respondent-wife. Respondent left the matrimonial house at Lal Chand Building near PNB Totu Shimla on 25.06.2005. She filed a petition for dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act for the sake of convenience). She also moved an application under Section 24 of the Hindu Marriage Act for maintenance pendente lite and expenses. According to the application, the petitioner was earning more than Rs. 50,000/- per month. According to the respondent, the petitioner has not provided any financial support to her as well as her daughter since June, 2005. She was maintaining herself with the financial assistance of her parents. The monthly expenditure of the respondent and her daughter is Rs. 20,000/-. In these circumstances, the respondent-wife has claimed Rs. 30,000/- from the husband to mitigate the day-to-day expenses. 3. The petitioner-husband has filed reply to the application. He has denied that he was earning Rs. 50,000/- per month. According to him, he was a Causal Artist. Learned District Judge has awarded interim maintenance @ Rs. 10,000/- per month, i.e., Rs. 7,000/- to the respondent-wife and Rs. 3,000/- to the daughter Ishita from the date of interim application till the decision of main petition. She was also granted Rs. 10,000/- as litigation charges vide order, dated 10th May, 2011. The petitioner has assailed this order. Petitioner has also filed CMP No. 547 of 2013 for placing on record additional documents. These were permitted to be taken on record vide order, dated 26.04.2013. 4. Mr. Ravinder Singh Jaswal, learned counsel for the petitioner has vehemently argued that income of the petitioner has been wrongly assessed by the learned District Judge (Forest), Shimla, H.P. while awarding compensation. According to him, his client is a Casual Artist and he has also been disinherited from the property by his parents. He has also referred to the documents placed on record showing the income derived from the Shows organised by him. According to him, his client is a Casual Artist and he has also been disinherited from the property by his parents. He has also referred to the documents placed on record showing the income derived from the Shows organised by him. He lastly contended that the learned Judicial Magistrate 1st Class (2), Shimla, H.P. has already granted the interim maintenance of Rs. 1200/- per month to the respondent under Section 125 of the Criminal Procedure Code. 5. Ms. Bhawna Dutta, learned counsel for the respondent has supported the order, dated 10.05.2011. 6. I have heard the learned counsel for the parties and gone through the pleadings and records carefully. 7. What emerges from the facts gathered from the pleadings is that marriage between the petitioner and respondent was solemnized on 10.08.2002. A daughter was born on 08.05.2003. The respondent has left the matrimonial house on 25.06.2005. The respondent is post graduate and is pursuing M. Phil. According to the respondent, the monthly income of the petitioner was about 50,000/-. It has also come in the pleadings that petitioner runs a shop. This fact was also admitted by the learned Advocate appearing on behalf of the petitioner before the learned District Judge (Forest). By way of CMP No. 547 of 2013, the petitioner has placed on record a compromise vide Annexure P-9. There is a reference to the shop in this compromise at Sr. No. 4. It is also proved from the additional documents placed on record that petitioner is an Artist and has been performing in Shimla Summer Festival and International Minjar fair, Chamba and is receiving money. 8. Mr. Ravinder Singh Jaswal, learned counsel for the petitioner has also argued that the petitioner has been disinherited by the parents from their property. He has placed on record a notice issued to this effect in daily Edition of Amar Ujala, dated 19th November, 2008. This is an excuse to deprive the maintenance to the respondent, to which she is legally entitled under Section 24 of the Act. There is no hard and fast rule to determine the maintenance paid to the parties. However, the status of husband and wife, including their family has to be taken into consideration. Respondent though is post graduate, but there is no tangible evidence on record to establish that she is working. 9. There is no hard and fast rule to determine the maintenance paid to the parties. However, the status of husband and wife, including their family has to be taken into consideration. Respondent though is post graduate, but there is no tangible evidence on record to establish that she is working. 9. Now as far as the amount payable to the respondent under Section 125 of the Cr. P.C., i.e., Rs.1200/- per month is concerned, the same was required to be taken into consideration by the learned District Judge (Forest) while awarding interim maintenance under Section 24 of the Hindu Marriage Act. The application under Section 24 of the Hindu Marriage Act can be decided on the basis of pleadings and the affidavits exchanged by the parties. No separate evidence is required to be recorded. 10. The learned Single Judge in Surjit Kaur v. Tirath Singh, AIR 1978 Punjab and Haryana 112 have held that jurisdiction of Civil Court to grant relief under Section 24, could not be ousted by mere pre-existing order of Criminal Court under Section 488, Cr. P.C. The learned Single Judge has held as under: "1. The Court of Shri M.L. Mirchia, District Judge, Faridkot, has declined to consider on merits the claim and prayer of the petitioner for grant of maintenance pendente lite under Section 24 of the Hindu Marriage Act (hereinafter called the Act) on the sole ground that she has already been allowed maintenance by a Criminal Court and that her maintenance could not be fixed twice. The amount fixed by the criminal Court in proceedings under Section 488 of the Cr.P.C., is stated to be Rs. 50/- per mensem. Section 24 of the Act reads as below. "24. The amount fixed by the criminal Court in proceedings under Section 488 of the Cr.P.C., is stated to be Rs. 50/- per mensem. Section 24 of the Act reads as below. "24. Maintenance pendente lite and expenses of proceedings.-Where in any proceeding under this Act 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, on the application of the wife of the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it was seem to the court to be reasonable." A plain reading of the provision shows that the only condition precedent for the grant of maintenance pendente lite to any of the parties to a proceeding under the Act is that the applicant has no independent income sufficient for his or her support. If it is found that the applicant has sufficient income for his or her support, no amount can be allowed as maintenance under Section 24 of the Act. If however, it is found that the applicant either has no independent income or his or her income is not sufficient for his or her support, the Court is duty-bound to allow his or her application and grant him or her suitable maintenance pendente lite. 2. As to the quantum of the maintenance, the requirements of the applicant have to be balanced against the income of the respondent. In determining the quantum of monthly maintenance pendente lite the statute requires the Court to have regard to (i) the petitioner's own income and (ii) the income of the respondent. The mere fact that the applicant has some income, however meagre, does not justify the dismissal of the application under Section 24 of the Act. The finding of the learned Distract Judge to the effect that the petitioner was having an income of Rs. 50 per month (on the assumption that the respondent was regularly paying the amount to her under the order of the Criminal Court) indicates that impliedly the Court has found that she has no other income. The finding of the learned Distract Judge to the effect that the petitioner was having an income of Rs. 50 per month (on the assumption that the respondent was regularly paying the amount to her under the order of the Criminal Court) indicates that impliedly the Court has found that she has no other income. If that be the finding, a duly was cast on the learned District Judge to go into the question whether the income of Rs. 50 per month is or is not sufficient for the petitioner's support. If the learned District Judge comes to the finding that Rs. 50 per month is sufficient for maintaining the petitioner, he may decline her request for enhancing the amount. If, however, he finds that in these days of rising prices the sum of Rs. 50 per month is not sufficient for the petitioner's to maintain herself, he must fix the amount of maintenance pendente lite under Section 24 of the Act having regard to the maintenance already fixed by the Criminal Court (which is her income) and the income of the respondent. The learned District Judge has refused to exercise jurisdiction vested in him under Section 24 of the Act on the assumption that his jurisdiction under that provision to allow maintenance is ousted by the mere grant of maintenance by a Criminal Court under Section 488 of the old Code or Section 125 of the new Cr.P.C. Mr. Jagdev Sharma, the learned counsel for the petitioner, has brought to my notice the Single Bench judgment of this Court in Harbans Lal v. Ganga Devi, 1976 Chand LR 250 which was a converse case. The prayer of the husband for staying proceedings under Section 125 of the new Code of Criminal Procedure on the ground that maintenance pendente lite had been fixed by the High Court under Section 24 of the Act was declined by the Single Bench on the ground that wife has an independent right to claim maintenance under Section 125 of the new Cr.P.C. even if she has been allowed maintenance pendente lite under Section 24 of the Act. It was observed in Harbans Lal's case that the mere grant of maintenance under Section 24 of the Act is no ground for staying proceedings under Section 125 of the Cr. It was observed in Harbans Lal's case that the mere grant of maintenance under Section 24 of the Act is no ground for staying proceedings under Section 125 of the Cr. P.C. it was held that the remedy available to both the spouses is independent of each other. Applying the analogy Lal's case, it appears to me that the converse of the proposition is equally correct and that a mere pre-existing order under the Criminal Procedure Code for payment of maintenance does not oust the jurisdiction of the Civil Court to allow maintenance pendente lite under Section 24 of the Act. The order under revision cannot, in view of what has been stated above, be maintained. 11. In Smt. Pushpa Rani v. Shri Asa Nand Punjab Law Reporter 300, the learned Single Judge has held that in a situation where a certain given fact was within the knowledge of one party here the husband and that party also had the liability to prove that fact with documentary evidence and if that party does not do so, then it cannot be said that the evidence given by the wife regarding the income of her husband is unreliable and is to be rejected out of hand. The learned Single Judge has held as under: "5. In the present case the husband is a clerk employed by the Government of India. He was in a position to give details of his income and refute the wild assertion that his income was Rs. 550/- per month if he considered that an exaggeration. That he has not done. In a situation where a certain given fact was within the knowledge of one party here the husband and that party also had the ability to prove that fact with documentary evidence and if that party does not do so, then it cannot be said that the evidence given by the wife regarding the income of her husband is unreliable and is to be rejected out of hand." 12. The learned Single Judge in Smt. Renu Jain v. Mahavir Prashad Jain, AIR 1987 Delhi 43 has held that the properties of husband and his joint family and their business and social status should be considered while deciding application under Section 24 of the Hindu Marriage Act. The learned Single Judge has held as under: "8. The learned Single Judge in Smt. Renu Jain v. Mahavir Prashad Jain, AIR 1987 Delhi 43 has held that the properties of husband and his joint family and their business and social status should be considered while deciding application under Section 24 of the Hindu Marriage Act. The learned Single Judge has held as under: "8. As regards the business at premises No. 9775 at New Rohtak Road, according to the wife the husband is earning about Rs.5,000/- per month from this business. The husband contended that it was a sole proprietorship business of his father and he had no income from it. This fact is contradicted by the father of the husband himself. The father has admitted that the business being run in this shop is assessed for income-tax as a partnership firm. The learned Judge has rightly disbelieved the husbands contention that the family was not a joint family and the business was not a joint family business. The learned Judge has found that it was a device to avoid income-tax. Having held all this against the respondent husband the learned Judge has not analysed the evidence regarding the income from this business and has surmised that the husbands income from this business is not more than Rs.500/- per month. 9. As regards the Rolling Steel Mill business the learned Judge has found that the Mill had been originally started in the name of the husband, but in view of the pendency of this case the name had been changed to Premsons Industries. The falsity of the claim of the husband that the Steel Mill was the business of the father and the part of the premises are in his tenancy from his wife (i.e. husbands mother) has been exposed by the learned trial Judge. The learned trial Judge has found that the rent receipts are fabricated for the purpose of this case. The learned Judge has also found that the accounts books and the ledgers are not produced. Having found all these items as suppression of the proper material, the Court has again come to a low estimate of the husbands income from this business, viz. Rs.800/- p.m. 10. The counsel for the husband has referred to some income-tax assessments and the assessment orders. He has also produced some documents showing that premsons Industries is the sole proprietary business of the father. Rs.800/- p.m. 10. The counsel for the husband has referred to some income-tax assessments and the assessment orders. He has also produced some documents showing that premsons Industries is the sole proprietary business of the father. So also, he has produced the copy of the agreement to sell the Tagore Garden House and the Partnership Deed in relation to Mahavir Prasad Jain and Co. Some of these documents are exhibited and others are not. The documents which are exhibited are considered by the trial Judges. The trial Court rightly did not attach much importance to these documents because the respondent husband has suppressed the accounts books, the ledgers and similar documents which would correctly reflect the profits made in these businesses, and also investments made in the landed properties." 13. In Raghavan v. Saroja 1988 (1) H.L.R. 554, the learned Single Judge of Kerala High Court has held that Section 24 of the Act is to secure the indigent spouse some financial assistance to prosecute the case and also for the purpose that indigent spouse should not suffer during the pendency of the proceedings because of his or her indigency. The learned Single Judge has held as under: "13. The object and purpose of enacting Section 24 of the Act is to secure the indigent spouse some financial assistance to prosecute the case and also for the purpose that the indigent spouse should not suffer during the pendency of the proceedings because of his or her indigency. The counsel emphatically submits before me that it should be the prime duty and concern of matrimonial courts to give an expeditious decision on applications for ancillary reliefs, like grant of interim alimony so that the indigent spouse is not handicapped because of paucity of funds. In the background of this purpose, a liberal interpretation has to be given enabling the court to pass an order on the interlocutory application under Section 24 of the Act, even if the main petition is dismissed." 14. The learned Single Judge in Pradeep Kumar Kapoor v. Ms. Shailja Kapoor, AIR 1989 Delhi 10 has defined the term maintenance and support. The learned Single Judge has culled out the following principles which are relevant to determine the maintenance under Section 24 of the Hindu Marriage Act: "10. The learned Single Judge in Pradeep Kumar Kapoor v. Ms. Shailja Kapoor, AIR 1989 Delhi 10 has defined the term maintenance and support. The learned Single Judge has culled out the following principles which are relevant to determine the maintenance under Section 24 of the Hindu Marriage Act: "10. Sometimes an application under Section 24 is filed read with Section 26 of the Act which deals with custody of the children and the court is authorised to pass interim orders with respect to custody, maintenance and education of minor children. That, however, is not the case here. While fixing permanent alimony and maintenance under Section 25 of the Act, the court is expected to make detailed inquiry and has to take into account not only the income but other properties of the parties, their conduct and other circumstances of the case that the court might consider relevant. But that would not be so for the decision of the application under Section 24 of the Act as in its very nature, the inquiry under Section 24 has necessarily to be summary. The Court cannot be bogged down to intricacies of a protracted trial for fixing maintenance pendent lite and expenses of the proceedings. Otherwise, the very object of the section would be frustrated which is that a party is not handicapped in prosecuting his or her case. But, then in deciding the application under Section 24 of the Act, the Court has to act in accordance with sound judicial principles and cannot act in an arbitrary fashion to the prejudice of either of the parties. The following principles would appear to be relevant for the purpose: (1) Position and status of the parties; (2) Reasonable wants of the claimant (towards food, clothing, shelter, medical attendance and treatment, education and the like); (3) Income of the claimant; (4) Income of the opposite party; (5) Number of persons opposite party is obliged to maintain. The following principles would appear to be relevant for the purpose: (1) Position and status of the parties; (2) Reasonable wants of the claimant (towards food, clothing, shelter, medical attendance and treatment, education and the like); (3) Income of the claimant; (4) Income of the opposite party; (5) Number of persons opposite party is obliged to maintain. Two corollaries may be added here: (1) In arriving at the income of a party only involuntary deduction like income-tax, provident fund contribution, etc., are to be excluded; and (2) though under the law opposite party may not be obliged to maintain brother or sister but if that brother or sister having no income is living with the opposite party as member of his family and where either there are no parents or are unable to maintain themselves, the Court may in a given circumstance consider the expenses to be incurred on the maintenance or brother or sister by the opposite party. After all, court cannot be expected to adopt a mechanical approach while interpreting the provisions of law incorporating principles of social justice like Section 24 of the Act." 15. The learned Single Judge of Madhya Pradesh High Court in Siremal Burad v. Shakuntala Devi Burad has held that the Court can decide the quantum of maintenance on the basis of the affidavit of the parties without recording the evidence. Their Lordships have held as under: "4. The contention advanced criticising the procedure adopted by the Court below is of little substance. The Matrimonial Court is to follow the procedure contained in Code of Civil Procedure as far as possible. The provisions of Section 21 require the Matrimonial Court to adhere to the provisions of Code of Civil Procedure as far as may be possible and in the interest of justice. The payment of maintenance pendente lite and litigation expenses could, therefore, have been decided by the Matrimonial Court on the affidavits of the parties. There is, thus, no error of procedure." A similar view has been taken by Punjab and Haryana High Court in Jagatjit Singh v. Sushma, 1994 (2) HLR 561. 16. The payment of maintenance pendente lite and litigation expenses could, therefore, have been decided by the Matrimonial Court on the affidavits of the parties. There is, thus, no error of procedure." A similar view has been taken by Punjab and Haryana High Court in Jagatjit Singh v. Sushma, 1994 (2) HLR 561. 16. The Apex Court in Smt. Jasbir Kaur Sehgal v. District Judge, Dehradun and others, AIR 1997 Supreme Court 3397 has held that section 24 of the Act no doubt talks of maintenance of wife during the pendency of the proceedings, but this Section cannot be read in isolation and cannot be given restricted meaning to hold that it is the maintenance of the wife alone and no one else. Their Lordships have further held that if the husband tries to conceal his true income, adverse inference is to be drawn against him. Their Lordships have held as under: "6. Wife says that the husband has not given true account of his assets and income and has rather suppressed the same. Though the wife has not been able to give any specific evidence to support her contention but circumstances show that the husband has not given true state of affairs of his income. He has pleaded that both his wife and his eldest daughter are earning Rs. 10,000/- per month but there is no basis for such an allegation. The fact remains that the wife has no source of income and she is also maintaining her eldest unmarried daughter. Under the Hindu Adoptions & Maintenance Act, 1956 it is the obligation of a person to maintain his unmarried daughter if she is unable to maintain herself. In this case since the wife has no income of her own, it is the obligation of the husband to maintain her and her two unmarried daughters one of whom is living with wife and one with him. Section 24 of the Act no doubt talks of maintenance of wife during the pendency of the proceedings but this section, in our view, cannot be read in isolation and cannot be given restricted meaning to hold that it is the maintenance of the wife alone and no one else. Since wife is maintaining the eldest unmarried daughter, her right to claim maintenance would include her own maintenance and that of her daughter. Since wife is maintaining the eldest unmarried daughter, her right to claim maintenance would include her own maintenance and that of her daughter. This fact has to be kept in view while fixing the maintenance pendente lite for the wife. We are aware of the provisions of Section 26 of the Act providing for custody of minor children, their maintenance and education but that section operates in its own field. 7. Husband has filed his counter affidavit in the appeal before us and on our direction both the parties have filed additional affidavits. On one date when this appeal came up for hearing we were told that the husband had left that morning itself for Canada for further treatment after his bypass surgery in India and that his expenses visiting Canada and as well as the expenses for treatment there were being met by his friend. In his affidavit husband has stated that his friend Santokh Singh who is resident of Canada paid his fare. He is, however, silent about the expenses if any met by Santokh Singh for his treatment in Canada. A copy of the statutory declaration of Santokh Singh which is dated March 21, 1997 has also been filed. In this Santokh Singh does say that he has undertaken to bear the cost of passage and maintenance of respondent during his stay in Canada and North America. It is a matter of common knowledge that medical treatment in Canada is high and an ordinary person cannot afford the expenses which are met by taking medical insurance. As to what expenses husband incurred for his bypass surgery in India has not been disclosed. On our query as to how much foreign exchange husband obtained while going to Canada, it was stated that Dollar U.S. 1,350 were obtained at a cost of about Rs. 50,000/-. From where all these monies came from we are left in dark. Husband has not filed any certificate of his salary from his present employer though the wife has contended that both the firms Mukul Overseas Pvt. Ltd. and Mukul International Pvt. Ltd. are owned by the husband himself which fact husband has denied. Though we are not concerned with the income of his son which is stated to be Rs. Husband has not filed any certificate of his salary from his present employer though the wife has contended that both the firms Mukul Overseas Pvt. Ltd. and Mukul International Pvt. Ltd. are owned by the husband himself which fact husband has denied. Though we are not concerned with the income of his son which is stated to be Rs. 7,500/- per month, it would have been better if the husband had given complete details as to the perquisites enjoyed by his son, the rent he is paying for his rented accommodation at Safdarjung Enclave and the like. Claim of the husband that though his house in NOIDA fell vacant in January, 1996, it has neither been further let nor the husband himself living there because of certain repairs and on that account he is residing with his son does not appeal to us. It does appear to us from the affidavit of the husband that it conceals more than what it tells of his income and other assets. Attempt has been made to conceal his true income and that leads us to draw an adverse inference against the husband about his income that it is much more than what is being disclosed to us. The claim of the husband that from an income of Rs. 4,750/- per month which is getting from Mukul International Pvt. Ltd. he has to maintain himself, his two sons and daughter is absurd particularly when the eldest son is earning more than the husband and it is the husband who is living with him. Husband has also not disclosed retiral benefits if any from the ONGC and the amount of provident fund he obtained from there. Husband has interest income from Unit Trust of India and also from the fixed deposit receipts but again he has not disclosed the number of units he is holding and the amount of the fixed deposits in his name. From all these we have to hold that the annual income of the respondent-husband is even on modest estimate to be Rs. 2,40,000/- annually which would come to Rs. 20,000/- per month. Considering the diverse claims made by the parties one inflating the income and the other suppressing an element of conjecture and guess work does enter for arriving at the income of the husband. It cannot be done by any mathematical precision. 9. 2,40,000/- annually which would come to Rs. 20,000/- per month. Considering the diverse claims made by the parties one inflating the income and the other suppressing an element of conjecture and guess work does enter for arriving at the income of the husband. It cannot be done by any mathematical precision. 9. The question then arises as to from which date the wife would be entitled to claim the enhanced amount of maintenance pendente lite. If wife has no source of income it is the obligation of the husband to maintain her and also children of the marriage on the basis of the provisions contained in the Hindu Adoptions and Maintenance Act, 1956. Her right to claim maintenance fructifies on the date of the filing of the petition for divorce under the Act. Having thus fixed the date as the filing of the petition for divorce it is not always that the court has to grant the maintenance from that date. The Court has discretion in the matter as to from which date maintenance under Section 24 of the Act should be granted. The discretion of the court would depend upon multiple circumstances which are to be kept in view. These could be the time taken to serve the respondent in the petition; the date of filing of the application under Section 24 of the Act; conduct of the parties in the proceedings; averments made in the application and the reply thereto; the tendency of the wife to inflate the income out of all proportion and that of the husband to suppress the same; and the like. There has to be honesty of purpose for both the parties which unfortunately we find lacking in this case. We are therefore of the opinion that ends of justice would be met if we direct that maintenance pendente lite as fixed by this judgment to be payable from the date of impugned order of the High Court which is October 16, 1996. We order accordingly. The impugned judgment of the High Court shall stand modified to that extent. All arrears of maintenance shall be paid within a period of two months from today and then regularly every month." 17. We order accordingly. The impugned judgment of the High Court shall stand modified to that extent. All arrears of maintenance shall be paid within a period of two months from today and then regularly every month." 17. Their Lordships of the Honble Supreme Court in Sudeep Chaudhary v. Radha Chaudhary, AIR 1999 Supreme Court 536 have held that the amount awarded under Section 125, Criminal Procedure Code is adjustable against amount awarded in matrimonial proceedings under Section 24 of Hindu Marriage Act as alimony to wife. Their Lordships have held as under: "5. Since the husband failed to pay the amount of maintenance as aforesaid, the wife started recovery proceedings. The husband contended that the maintenance amounts should be adjusted against the interim alimony and the Magistrate before whom the recovery proceedings were pending upheld the contention. The High Court, in order which is under appeal, held that the Magistrate was in error in directing adjustment of the maintenance amount awarded under Section 125 of the Cr. P.C. against the amount awarded under Section 24 of the Hindu Marriage Act. 6. We are of the view that the High Court was in error. The amount awarded under Section 125 of the Cr. P.C. for maintenance was adjustable against the amount awarded in the matrimonial proceedings and was not to be given over and above the same. In the absence of the wife, we are, however, not inclined to go into any detailed discussion of the law. 7. At the same time, we feel that the claims of the husband and the wife are to be balanced. We, therefore, direct that the husband shall pay to the wife towards maintenance (which now comprehends both the amount awarded under Section 125 of the Cr. P.C. and the amount awarded in the matrimonial proceedings) the sum of Rs.1,000/- p.m. commencing from 3rd July, 1990. The arrears, if any, shall be paid within 8 weeks." There is no merit in the contention of Mr. Ravinder Singh Jaswal, learned counsel for the petitioner that once the respondent has been granted maintenance under Section 125 of the Criminal Procedure Code, petition under Section 24 of the Hindu Marriage Act is not maintainable. 18. The arrears, if any, shall be paid within 8 weeks." There is no merit in the contention of Mr. Ravinder Singh Jaswal, learned counsel for the petitioner that once the respondent has been granted maintenance under Section 125 of the Criminal Procedure Code, petition under Section 24 of the Hindu Marriage Act is not maintainable. 18. In Rousseau Mitra v. Shrimati Chandana Mitra AIR 2004 Calcutta 61 the learned Single Judge of Calcutta High Court has held that when the husband voluntarily having incapacitated himself from earning, he cannot avoid his liability to maintain his wife and child. The learned Single Judge has held as under: "9. There is no fixed principle for determining the amount of maintenance pendente lite or expenses of the proceedings. The Court has to consider the status of the parties, their needs and the capacity of the husband to pay having regard to the reasonable expenses for the maintenance of the wife and the child, which he is obliged to meet under the law. The amount of maintenance pendente lite should be fixed for the wife and the child taking into consideration the cost of living index so that she does not feel handicapped. The husband was an employee of a private firm and he used to earn by undertaking private typing jobs. It is alleged by the husband that he has left his service voluntarily with effect from November 2001 and presently he is unemployed and has no income at all to pay the maintenance pendente lite or expenses of the proceedings. The husband is an able-bodied person capable of earning. The husband voluntarily incapacitated himself from earning, but he cannot avoid his liability to maintain his wife and the child. 11. The family background of the husband had been disclosed. It has been established that the parties come from respectable families and they have a particular status in the society. Although there was no evidence before the Court about the actual income of the husband, the Court can legitimately take into consideration his ability to earn a reasonable amount." 19. In L. Yuvaraj v. Kirubaarani Devi AIR 2009 Madras 138, the learned Single Judge has held that when the wife coming forward with categorical statement that she is not working any where and earning, the burden of proof is on husband to prove place in which she is working and earning. In L. Yuvaraj v. Kirubaarani Devi AIR 2009 Madras 138, the learned Single Judge has held that when the wife coming forward with categorical statement that she is not working any where and earning, the burden of proof is on husband to prove place in which she is working and earning. The learned Single Judge has held as under: "11. I am at a loss to understand as to how such a ground could be set out before this Court. A mere reading of the relevant provisions of the Income Tax Act would demonstrate and indicate that there is no necessity that every citizen had to file Income Tax returns. If at all the income of a person exceeds a particular limit, only such person should file return irrespective of the fact whether income tax is due and payable or not relating to an assessment year. As such, the revision petitioner's implied admission would evidence that he is an income tax assessee and there is no shard or shred of reasons available as to why he has not filed any of the copies of the returns before the lower Court to highlight his actual income. Section 106 of the Indian Evidence Act would warrant the revision petitioner to produce such evidence, but he failed to do so. Hence, in such circumstance, adverse inference could rightly be drawn to the limited extent that the revision petitioner did not want to disclose his real income. Whereas, the respondent/wife would come forward with the categorical statement that she is not working any where and earning. In such a case, the burden of proof is on the petitioner to prove the place in which she is working and earning. In the absence of such evidence, I could see no infirmity in the order passed by the lower Court. 12. The affidavit of the wife, accompanying the I.A.No.163 of 2007, would display and indicate that the petitioner is doing business and earning. We cannot expect a hapless and helpless wife and child to run from pillar to post to gather particulars relating to the income of the husband. 12. The affidavit of the wife, accompanying the I.A.No.163 of 2007, would display and indicate that the petitioner is doing business and earning. We cannot expect a hapless and helpless wife and child to run from pillar to post to gather particulars relating to the income of the husband. The Family Court considering the over all circumstance involved in the case felt that the husband i.e. the revision petitioner is capable of paying a sum of Rs.5,000/- per month as interim maintenance towards the respondent and the minor child and such a conclusion cannot be labeled or dubbed as unreasonable or illegal, warranting interference by this Court." 20. Their Lordships of the Honble Supreme Court in Neeta Rakesh Jain v. Rakesh Jeetmal Jain (2010) 12 Supreme Court Cases 242 have held that while awarding interim maintenance, social status, the back ground from which both the parties come from and economical dependency of the petitioner has to be taken into consideration. Their Lordships have held as under: "9. Section 24 thus provides that in any proceeding under the Act, the spouse who has no independent income sufficient for her or his support may apply to the court to direct the respondent to pay the monthly maintenance as the court may think reasonable, regard being had to the petitioner's own income and the income of the respondent. The very language in which Section is couched indicates that wide discretion has been conferred on the court in the matter of an order for interim maintenance. Although the discretion conferred on the court is wide, the Section provides guideline inasmuch as while fixing the interim maintenance the court has to give due regard to the income of the respondent and the petitioner's own income. 10. In other words, in the matter of making an order for interim maintenance, the discretion of the court must be guided by the criterion provided in the Section, namely, the means of the parties and also after taking into account incidental and other relevant factors like social status; the background from which both the parties come from and the economical dependence of the petitioner. Since an order for interim maintenance by its very nature is temporary, a detailed and elaborate exercise by the court may not be necessary, but, at the same time, the court has got to take all the relevant factors into account and arrive at a proper amount having regard to the factors which are mentioned in the statute." 21. Their Lordships of the Honble Supreme Court in U. Sree v. U. Srinivas (2013) 2 Supreme Court Cases 114 have held that while granting permanent alimony under Section 25, the status of the parties, their respective social needs, financial capacity of husband and other obligations are to be taken into consideration. Their Lordships have further held that it is the duty of Court to see that wife lives with dignity and comfort and not in penury. The living need not be luxurious but simultaneously she should not be left to live in discomfort. Their Lordships have held as under: "33. We have reproduced the aforesaid orders to highlight that the husband had agreed to buy a flat at Hyderabad. However, when the matter was listed thereafter, there was disagreement with regard to the locality of the flat arranged by the husband and, therefore, the matter was heard on merits. We have already opined that the husband has made out a case for divorce by proving mental cruelty. As a decree is passed, the wife is entitled to permanent alimony for her sustenance. Be it stated, while granting permanent alimony, no arithmetic formula can be adopted as there cannot be mathematical exactitude. It shall depend upon the status of the parties, their respective social needs, the financial capacity of the husband and other obligations. In Vinny Parmvir Parmar v. Parmvir Parmar, while dealing with the concept of permanent alimony, this Court has observed that while granting permanent alimony, the Court is required to take note of the fact that the amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband. At the same time, the amount so fixed cannot be excessive or affect the living condition of the other party. 34. Keeping in mind the aforesaid broad principles, we may proceed to address the issue. 35. At the same time, the amount so fixed cannot be excessive or affect the living condition of the other party. 34. Keeping in mind the aforesaid broad principles, we may proceed to address the issue. 35. The respondent himself has asserted that he has earned name and fame in the world of music and has been performing concerts in various parts of India and abroad. He had agreed to buy a flat in Hyderabad though it did not materialise because of the demand of the wife to have a flat in a different locality where the price of the flat is extremely high. Be that as it may, it is the duty of the Court to see that the wife lives with dignity and comfort and not in penury. The living need not be luxurious but simultaneously she should not be left to live in discomfort. The Court has to act with pragmatic sensibility to such an issue so that the wife does not meet any kind of man-made misfortune. Regard being had to the status of the husband, the social strata to which the parties belong and further taking note of the orders of this Court on earlier occasions, we think it appropriate to fix the permanent alimony at Rs. 50 lacs which shall be deposited before the learned Family Judge within a period of four months out of which Rs.20 lacs shall be kept in a fixed deposit in the name of the son in a nationalised bank which would be utilised for his benefit. The deposit shall be made in such a manner so that the respondent wife would be in a position to draw maximum quarterly interest. We may want to clarify that any amount deposited earlier shall stand excluded." 22. In this case, the respondent has placed on record sufficient material that she has not been provided maintenance and expenses by the petitioner. The respondent has amply proved the income of the petitioner. The dis-inheritance of petitioner by his family is required to be overlooked. This ploy has been adopted by the family of the petitioner to deprive the respondent just and fair maintenance. A effort has been made by the petitioner and his family members to conceal true income and the Court in these circumstances is bound to draw adverse inference against the petitioner and his family members. This ploy has been adopted by the family of the petitioner to deprive the respondent just and fair maintenance. A effort has been made by the petitioner and his family members to conceal true income and the Court in these circumstances is bound to draw adverse inference against the petitioner and his family members. The conduct of the parties is also to be seen while determining interim compensation under Section 24 of the Act. 23. Mr. Ravinder Singh Jaswal, learned counsel for the petitioner has also argued that the respondent is post graduate and should have employed herself gainfully. This plea cannot be accepted. She is a house wife and has to look after young daughter, that too, in absence of petitioner. 24. In 1950 (2) The All England Law Reports, this kind of plea raised by the husband was rejected in three separate opinion given by Justice Somervell, L.J., Bucknill, L.J. and Denning, L.J. as under: "Sommervell, L.J..The question is whether that is wrong in law on the facts of the case. I do not propose to consider whether or in what circumstances earning capacity ought to be brought into the calculation in the case of a wife who has not been required to earn any money during the matrimonial life, but, in my view, where during the matrimonial life the means of the husband were such that the wife was not required to go out and earn money, then, in determining the proper sum for maintenance, it would prima facie seem to be wrong that the husband should be able to say: "Now you must go out and work, and the only sum I can be ordered to pay is one based on the results of your going out to work, which you did not have to do when you were my wife and which you would not have had to do if I had not committed adultery and broken up the home" as in the present case. That prima facie approach seems to me to be plainly right in a case such as this, where the marriage had lasted for some twenty years. That prima facie approach seems to me to be plainly right in a case such as this, where the marriage had lasted for some twenty years. The wife is a woman of forty one years of age, who has normal trade or calling, though, no doubt, she is capable of doing domestic work, and there is a child of some four and a half years of age for her to look after. Therefore, I think the appeal succeeds, and that the order should be for a week less tax. Bucknill, L.J.: I agree with the judgment which has just been delivered. It seems to me that WILLMER, J., would not have disturbed the figure fixed by the register if it were merely a question of amount. I feel that he must have amended it because he felt that the registrar had not taken into consideration the earning capacity of the wife, and counsel for the husband has said that during the discussion before Willmer, J., he submitted that the earning capacity of the wife could be put at 2 a week. Unfortunately, we have not got any record of the judgment, but I am satisfied that that was why Willmer, J., altered the figure. The question whether the earning capacity of the wife should be taken into account, in my opinion, must always depend on the particular facts of the case. I would be sorry to lay down any general rule about it, but it seems to me that in a case such as this, where the facts are as stated in the judgment of Somervell, L.J., it would be wrong to reduce the liability of the husband to maintain his wife by reckoning that the wife could, if she saw fit, go out with her child and earn some money by doing domestic work. The wife in this case is not trained to do any special work, and I do not know that she could do anything else. What she did for a short time was to work in the kitchen for a friend. I agree that the appeal should be allowed. Denning, L.J.: I also agree. A very important matter in awarding maintenance is the conduct of the parties. What she did for a short time was to work in the kitchen for a friend. I agree that the appeal should be allowed. Denning, L.J.: I also agree. A very important matter in awarding maintenance is the conduct of the parties. In this case it has been established that the husband broke up the marriage after twenty one years of married life, leaving the wife with two children, one of them very young. It was a particularly bad case because the husband committed adultery with a Swiss student help who came to the house. After the divorce the wife claimed maintenance, and the question is whether she ought to go out to work. I agree that no general rule can be laid down on the matter, but this wife is certainly under no legal duty to go out to work in order to reduce the maintenance that her husband should pay. It would be quite unreasonable to expect her to do so when she has to look after a young child. If a wife does earn, then her earnings must be taken into account; or if she is a young woman with no children, and obviously ought to go out to work in her own interest, but does not, then her potential earning capacity ought to be taken into account; or if she has worked regularly during the married life and might reasonably expected to work after the divorce, her potential earnings ought to be taken into account. Except in cases such as those, however, it does not as a rule lie in the mouth of a wrongdoing husband to say that the wife ought to go out to work simply in order to relieve him from paying maintenance." 25. Accordingly, in view of the observations and analysis made hereinabove, there is no merit in this petition and the same is dismissed, so also the pending application(s), if any. However, it is made clear that the amount awarded under Section 125 of the Criminal Procedure Code is adjustable against the amount awarded under Section 24 of the Hindu Marriage Act by the learned District Judge (Forest) vide order, dated 10.05.2011. No costs.