IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1469 of 2008 BRIJESH KUMAR RASTOGI Versus SMT.KANTI RASTOGI ----------- 2 25/9/2008 Heard counsel for the petitioner. In the opinion of this Court an amount of Rs. 10,000/- per month for the wife and Rs. 5,000/- for two children out of the marriage of the opposite party, wife with the petitioner can not be held to be either excessive or illegal in the context it was so awarded. It has to be borne in mind that initially the petitioner had filed a suit for divorce which was decreed exparte. In fact, an application for custody of child was also filed and that was also allowed exparte. All these matters are still being contested by the wife, who definitely has raised a plea that she was not given notice either in the divorce case or in the case relating to custody of child. In between came a situation for her maintenance and she had filed an application under section 125 of the Code of Criminal Procedure which was keenly contested by both 2 the parties, whereafter the court below has recorded finding in paragraph 12, which reads as follows:- “The applicant has adduced oral evidence in respect of income of O.P. about Rs. 50,000/- per month by business. The O.P. has denied the same but from perusal of his statement in cross-examination in para 5 to 10 it appears that he has crossary shop, business of money landing wholesale business of edible oil. Although the business is in the name of mother and father but he is sole son of his parents and managing all the business. Hence, he has sufficient means and income and business in names of his parents is just for namesake. The evidence of applicant is more reliable in comparison to evidence of O.P., not corroborated by any witness, that he is earning Rs. 50,000/- per month from his business. Hence, he has sufficient means to provide maintenance to applicant and his children.” Learned counsel appearing on behalf of the petitioner would assail the aforesaid finding on the ground that the same was against the weight of materials on records and especially the evidence adduced by the petitioner in this regard. This Court for that purpose had looked into the initial pleadings as with 3 regard to issue of income. The wife while filing the application under section 125 of the Cr.P.C. had in her application taken plea to the following effect:- “ izkFkhZuh ds vkenuh dk dksbZ Jksr ugha gS A izkFkhZuh vius firk ds ?kj esa iM+h gq;h gS A izkFkhZuh us foi{kh ls dbZ ckj dgk o dgyok;k fd izkFkhZuh ds [kkus&ihus diM+k nok oxSjg dk C;oLFkk dk ns rks foi{kh us lkQ&lkQ bUdkj dj fn;k ” When this was sought to be answered by the petitioner in his rejoinder, he took a plea in paragraph-18 which reads as follows:- “ ;g fd blds vfrfjDr tgka rd okfnuh dk ;g dFku fd mlds ikl vk; dk dksbZ Jksr ugha gS]iw.kZr;k vlR; gS A mlds firk ,d cgqr gh jghÓ [kkunku ds O;fDr gSa A muds ikl dkQh d`fÔ Hkwfe ds lkFk&lkFk lhesUV] lfj;k] yksgs vkfn dh cgqr cM+h nwdku gS]ftlls vPNh vkenuh izfrekg gksrh gS vkSj okfnuh o mlds firk rFkk Hkkb;ksa dk ,d la;qDr fgUnw ifjokj gS vkSj oknhuh mDr la;qDr fgUnw ifjokj gSa vkSj oknhuh mDr la;qDr fgUnw ifjokj dh lnL; gS vkSj mDr C;olk; o d`fÔ dk;Z esa okfnuh Hkh leku :i ls lg;ksx djrh gS vkSj mDr C;olk; ls izkIr vk; esa mldk Hkh fgLlk gS vkSj mls Hkj.k&iksÔ.k HkRrk dh dksbZ vkoj;drk ugha gS A tgkWa rd cPpksa dk izju gS] ekuuh; U;k;ky; ds vknsÓkuqlkj mls mRrj nkrk@foi{kh dks lkSai nsuk pkfg, vkSj mRrjnkrk@foi{kh mudk Hkj.k&iksÔ.k] fÓ{kk nh{kk ds fy, gesÓk rS;kj o rRij gS ” The said stand of the petitioner that the wife opposite party was not entitled for 4 maintenance because she was a member of Hindu Undivided Family and therefore she will be deemed to have income from the HUF, however, was immediately sought to be changed when an issue arose for determining his income for fixing his liability for payment of maintenance in as much as when the wife in this regard, about the income of the petitioner, had stated in her application that; “ foi{kh dks y[kum esa dkQh lEifRr gSa vkSj vusd rjg dk C;kikj djrs gSa ftlls foi{kh dks izfrekg 50]000@&:0 ¼ipkl gtkj½ :i;s dh vkenuh gksrh gS A “ the said statement was sought to be replied by the petitioner, by taking plea that though there were all such business available to the family, but none of them stood in his name and as such the assertion of the wife that he has income of Rs. 50,000/- was absolutely incorrect. This Court fails to appreciate such double standard and vacillating stand of the petitioner. It is said what is good for the goose is also good for the gender. That being so, once the petitioner had taken a 5 plea that the income of HUF will be also personal income of his wife, the same will also apply in the case of the petitioner himself. It is therefore clear that the petitioner belongs to an affluent family in which there are large number of business ventures as has been recorded by the court below in paragraph 12 of the impugned order on the basis of evidence on record. In this background, if the sprit of section 24 of the Hindu Marriage Act is examined, it would be found that, whereas Legislature has intended to ascertain own income of the person seeking such maintenance, no such restriction has been put as with regard to income of the person who has to pay the same. This will be apparent from the provisions of section 24 of the Hindu Marriages Act, which for convenience is quoted hereinbelow:- “Maintenance pendent elite 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 6 necessary expenses of the proceeding, it may, on the application of the wife or 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 may seem to the court to be reasonable. Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.” Judging in this background, this Court finds that the petitioner has sought to suppress his total business ventures of his family and did not bring out balance- sheet of those business by which his true income could be ascertained. He must, in fact, be held guilty of withholding those relevant evidence which were in his personal knowledge. The onus of proving income of a person being subject matter of his personal knowledge in terms of section 106 of the Evidence Act will always be on such person only. Therefore, this Court would not find any merit in the submission of the counsel 7 for the petitioner that he had no such income from which he could have paid Rs. 10,000/- per month for his wife and Rs. 5,000/- for his two children. This Court must take notice on the other part of the submission of the counsel for the petitioner that his income tax return for the last three years would show that at best he had income of Rupees five to six thousand per month in view of gross taxable income being in the vicinity of Rs. 50,000/- to 52,000/-. This aspect of the matter as to what would be the personal income of the petitioner, can be gone into only on the basis of income tax return. It becomes clear that the petitioner has income from three sources, namely, from salary, from business or profession and also from other sources. The total income shown therein is Rs.1,53,772/- out of which the petitioner can afford to pay premium of LIC of Rs. 55611/-. If this is to be standard of the petitioner, whose personal life has to be secured by paying premium of Rs. 55611/-, it is difficult to know correctness of the 8 story of his income, which could be better reflected if the petitioner had produced balance sheet of entire business which could reflect the true income of the family of the petitioner. In paragraph 12 of the impugned order, quoted above, the court below infact has recorded findings about the income of the petitioner. That being so, this Court would not find any merit in the first submission of the learned counsel for the petitioner that by passing the impugned order the court below has committed material irregularities by not considering the material evidence adduced by the petitioner. The submission on the quantum of maintenance as advanced by the learned counsel for the petitioner is that the petitioner was ready to pay consolidated sum of Rs. 3,000/- for his wife and two children which would be sufficient for maintenance of three persons at the rate of Rs. 1000/- per head per month. The petitioner, in fact, has same misconceived notion and impression about the object of section 24 of the Hindu Marriage Act. Petitioner’s standard having 9 been revealed from his own evidence that he belongs to a business class family having a high standard of life and status, he cannot expect that his wife and children would live in abject poverty. Section 24 of the Act in this respect seeks to ensure that the Court has to fix such reasonable amount keeping in view that the same would be necessary for supporting the spouse in the period when she has been isolated and also subjected to contest litigation of divorce. The expression "support" in Section 24 of the Act therefore can not mean bare sustenance. Separate life will mean that the children have to be maintained and educated. If the wife has been forced to live separately during pendency of matrimonial case she has to maintain herself in the same standard in which she was living prior to filing of the said matrimonial case. Reference in this regard may be made to the following passage of the judgment of the Apex Court in the case of Jasbir Kaur Sahgal V. District Judge, Dehradun and Others, II(1997) DMC 338(SC)=(1997)7 SCC 7 wherein it has been 10 observed that, "no set formula can be laid for fixing the amount of maintenance. It has, in the very nature of things, to depend on the facts and circumstances of each case. Some scope for leverage can, however, be always there. The Court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. 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 and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate." Judging in this background, this Court is of the opinion that the offer of Rs.3,000/- to his wife and two children i.e, one thousand for each member for maintenance was absolutely a pittance. Once the finding of fact as with regard to income of petitioner from his all known sources has been ascertained to be Rs. 50,000/- per month, the amount of Rs. 20,000/- for a family of three persons i.e. the wife and two growing school going children can not be held to be excessive or extortionate. 11 That being so, this Court does not find any reason to interfere with the impugned order. Accordingly, this application is dismissed with a direction to the petitioner to pay the amount both arrear and current as per the order of Court below within a period of three months from today, failing which the court below will be at liberty to take appropriate action against the petitioner. ( Mihir Kumar Jha, J.) Abhay Kumar