The Judgment of the Court was delivered by
Harish Tandon, J.:— This revisional application is directed against an Order No. 40 dated 9th August, 2016 passed by the Learned Additional District Judge, 7 Court, Barasat, North 24 Pgs. in MAT 20/2014 by which an application under Section 24 of the Hindu Marriage Act is disposed of.
2. Admittedly, the husband/opposite party filed Matrimonial Suit No. 20 of 2014 against the Petitioner seeking the desolation of marriage by decree of divorce. It is alleged in the said plaint that the marriage was solemnized as per the Hindu rights and rituals on 26.06.2008 and thereafter the parties started living together as husband and wife at the matrimonial house. It is not in dispute that the son is born of the said wedlock and is currently in custody of the wife/opposite party. It is alleged in the plaint that the wife/opposite party started accusing the Petitioner on flimsy grounds and perpetrated cruelty on him for which it is impossible for the Petitioner to live together under one roof.
3. In the said suit, an application for maintenance is taken out by the wife alleging that the Petitioner being employed in State Bank of Bikaner and Jaipur earns Rs. 73,000/- per month as salary and further sum of Rs. 50,000/- per month from other business.
4. The Petitioner could not deny his employment with the bank but alleged that he gets a monthly salary of Rs. 16,000/- and odd. It is, further averred in the objection filed to the said application for maintenance that the wife has falsely made a complaint before the police authorities under Section 498A/406 of the Indian Penal Code, which is still pending. A proceeding under Section 125 of the Code of Criminal Procedure is also filed by the wife/opposite party wherein the Petitioner was directed to pay a sum of Rs. 4,000/- to the wife and Rs. 2,000/- to the minor son on monthly basis. It is alleged that the wife is more interested in squeezing the money from the Petitioner.
5. The order passed in a proceeding under Section 125 of the Code of Criminal Procedure was challenged before this Court in CRR 3134 of 2015 and was admitted on 18.11.2015 In the said order, it is recorded that the wife has also filed an application under Section 24 of the Hindu Marriage Act wherein the Petitioner has been directed to pay the interim maintenance at Rs. 8,000/- per month in addition to the maintenance awarded in a proceeding under Section 125 of the CrPC. By way of an interim order, the Court directed the maintenance to be paid by the husband/Petitioner under Section 125 of the CrPC shall be inclusive of the interim maintenance awarded under Section 24 of the Hindu Marriage Act and directed the matter to appear as contested application. The Petitioner also challenged the order of interim maintenance passed on an application under Section 24 of the Hindu Marriage Act before this Court in C.O 435 of 2015. The said application was rejected on 16.02.2015 with the categorical findings that the Petitioner has concealed the actual income and there is no difficulty in drawing an adverse inference.
6. The said order was challenged before the Supreme Court in Special Leave to Appeal No. 14793 of 2015 which was also dismissed with the observations that the application under Section 24 of the Hindu Marriage Act, 1955 is yet to be disposed of and the challenge before the Supreme Court was against the interim order. However, the liberty was granted to the Petitioner to raise all the points including that the maintenance already allowed to the wife under Section 125 of the Code of Criminal Procedure, should be inclusive of the maintenance granted under Section 24 of the Hindu Marriage Act or not.
7. Subsequently, the application under Section 24 of the Hindu Marriage Act was taken up by the Trial Court and by the impugned order the Trial Court directed the Petitioner to pay a sum of Rs. 6,000/- to the wife/opposite party and Rs. 2,000/- to the son on monthly basis in addition to the maintenance granted in a proceeding under Section 125 of the CrPC. A further sum of Rs. 10,000/- was directed to be paid to the wife/Opposite Party as litigation cost.
8. The learned Advocate for the Petitioner impinges the impugned order firstly on the ground that the Court ought to have considered the amount of maintenance granted in a proceeding under Section 125 of the CrPC while awarding the maintenance under Section 24 of the Hindu Marriage Act and the quantum so determined should be inclusive. It is, further submitted that the total income of the husband is Rs. 16,000/- per month and if the maintenance granted in both the proceedings are to be paid, it would hardly leave any amount to the Petitioner for his support. The reliance is placed upon a judgment of the Apex Court in case of Sudip Chaudhary v. Radha Chaudhary reported in (1997) 11 SCC 286 for the proposition that the Court must adjust the quantum of maintenance awarded in a proceeding under Section 125 of the CrPC with the quantum of maintenance under Section 24 of the Hindu Marriage Act. In the same line, the reliance is placed upon a judgment of this Court in case of Sailendra Nath Ghosh v. State Of West Bengal & Anr. reported in 1998 (1) Crimes (HC) 483 where the Court directed the adjustment of the maintenance granted under Section 125 of the CrPC at the time of awarding the maintenance under Section 24 of the Hindu Marriage Act.
9. At the very outset, this Court must record that none of the reports relied upon by the Petitioner have laid down the law unequivocally that the adjustment is a rule. It is no longer res integra that the provisions contained under Section 24 of the Hindu Marriage Act cannot stand as a bar in granting relief under Section 125 of the Code of Criminal Procedure and vice versa. Both the provisions though aimed at the same destination but stand on a different pedestal. It is relevant to record that the maintenance under Section 125 of the CrPC cannot be claimed by the husband whereas it can be claimed under Section 24 of the Hundu Marriage Act. The provisions contained under Section 125 of the CrPC should be construed liberally for welfare and benefit of the wife and the children. There is no straight jacket formula under Section 24 of the Hindu Marriage Act nor any prescribed rule for determination of the alimony pendente lite. Each case has to be determined in the light of the facts of a particular case. The expressions used in Section 24 of the Act should not be construed having limited application so that the amount of maintenance is required to be adjudged within the fixed parameters. It is no longer res integra that the Court should determine the quantum of maintenance suited to the status and the amenities which the wife would have enjoyed as the wife of the husband and an amount which is reasonably necessary for her support as a spouse, is to be ascertained. It is no gain saying that the Court while ordering the payment of alimony pendente lite to the wife shall consider and ascertain the actual income earned by the husband. Section 106 of the Evidence Act imposed a duty on the person having special knowledge to prove the same. Naturally the actual income of the husband is within his special knowledge and it is his statutory obligation to disclose the same. Any concealment of an actual income shall invite an adverse inference to be drawn against such person. The alimony pendente lite is based on economic tutelage of a spouse and aims at administering justice and maintaining equilibrium between the parties.
10. It is, thus axiomatic to say that if the pendency of a proceeding under Section 125 of the CrPC or its disposal cannot debar the wife to claim a maintenance under Section 24 of the Hindu Marriage Act, 1955, certainly the Court should take into account the maintenance granted in a proceeding under Section 125 of the CrPC while determining the quantum of maintenance under Section 24 of the Hindu Marriage Act. The expression “adjustment” used in Sudip Chaudhary (Supra) has embolden the learned Advocate for the Petitioner to contend that the adjustment is a rule, which cannot be departed with. There are different ways and means of recording expressions. The Court while determining the quantum of maintenance under Section 24 of the Hindu Marriage Act, if considered, the quantum of maintenance already awarded under Section 125 of the CrPC and did not use the word “adjustment” but awarded an amount in addition thereto, it logically follows that the quantum of maintenance determined by the Court is required to be added to the quantum of maintenance awarded under Section 125 of the CrPC.
11. In the instant case, the Magistrate awarded the maintenance under Section 125 of the CrPC and a further maintenance is awarded under Section 24 of the Hindu Marriage Act are cumulative and impliedly the Court adjusted the amount of maintenance granted in a proceeding under Section 125 of the CrPC. The husband was found to have concealed the actual income and there is a categorical finding that the Trial Court has, despite the onus, failed to discharge the same. There a specific finding recorded by this Court in an earlier revisional application that the husband owns a car and a motor cycle and therefore the stand that he earns Rs. 16,000/- per month was not believed. Furthermore, there is no denial to a specific averment that the husband has other source of income. An adverse inference has been drawn, which, in my opinion, has been rightly drawn and taking into account the status of the husband and standing in the society, a sum of Rs. 14,000/- per month cannot be said to unreasonable, meager and disproportionate to the income of the husband.
12. To bring clarity in the impugned order, it is hereby recorded that the Court determined the quantum of maintenance at Rs. 14,000/- per month against the Petitioner and due adjustment to a sum of Rs. 6,000/- awarded to the wife under Section 125 of the CrPC has been provided.
13. This Court, therefore, does not find any infirmity in the impugned order. The revisional application is, thus, disposed of.
14. There shall be no order as to costs.