Learned Counsel for the respondent S. Meja Singh Sadhu has further referred to other evidence produced in the case to indicate that Gurveen Kaur was having source of income. Reference has been made to copy of the First Information Report which was filed by Gurveen Kaur before the Police which was produced in the case (page 53 of the record). There was a reference in this report that there was one Fixed Deposit Receipt of Rs. 25,000 with her. The other fact pointed, out is that few days before she left the house, she had withdrawn a sum of Rs. 10,000 from the joint account of the parties. Since there is no dispute regarding the said item I need not mention to the evidence. The other fact pointed out is that she has been earning a sum of Rs. 292 per month towards interest from Canara Bank which would indicate that she had substantial amount in the Fixed Deposit. A certificate of the Canara Bank was produced (page 43 of the record). At the time the parties separated; Gurveen Kaur was not practising. This was after few months of the marriage. Thereafter Gurveen Kaur delivered a female child and by the time she filed application under Section 24 of the Act, as per her affidavit, she had spent the amount of the Fixed Deposit Receipt as well as the sum of Rs. 10,000 which was withdrawn from the joint account and thus she had no other source of income. Mere existence of Fixed Deposit Receipt or immovably property will not be sufficient to deny the claim of the spouse for maintenance pendente lite. It was not the intention of the Legislature that the applicant should be penniles person to ask for maintenance. What Section 24 requires is that there should be independent source of income. In the present case since Gurveen Kaur had filed an affidavit that she had spent the sum of Rs. 35,000 as detailed above. The only other evidence of income which has been produced is of a sum of Rs. 292 per month interest on some amount which may also belying to her credit. It is only the interest which can be treated as source of income available to her month.
2. On behalf of the petitioner-wife it has been argued that the District Judge was wrong in accepting the affidavits of three Advocates who had deposed about the admission made by the petitioner-wife that she was earning about Rs. 7,000 per month, from the profession. Secondly, it has been argued that sufficient evidence was produed on the record to indicate the income of the husband which was completely ignored by the District Judge. Without going into the merits of the allegations at this stage, the objection raised by the Counsel for the respondent-husband is being dealt with.
3. It has been argued on behalf of the respondent, Mr. Meja Singh Sandhu, Advocate, that the scope of revision under Section 115 of the Civil Procedure Code is very limited. This Court should not interfere with the order of the trial Court even if it is erroneous on facts or in law. In support of this contention reliance has been placed on the decisions of the Supreme Court. In Manindra Land Building Corporation Ltd. v. Bhutnath Banerjee and Ors., A.I.R. 1964 Supreme Court 1536, it was observed that it was not open to the High Court in the exercise of its revisional jurisdiction under Section 115, to question the findings of facts recorded by a subordinate Court Section 115 applies to cases involving questions jurisdiction, i.e. questions regarding irregular exercise or non-exercise of jurisdiction or the illegal assumption of jurisdiction by a Court and is not directed against conclusion of law or fact in which questions of jurisdiction are not involved. In Pandurang Dhondhi Chougule and Ors. v. Maruti Hari Yadav and Ors., AIR, 1966 Supreme Court 153, it was observed that the High Court could not while exercising its jurisdiction under Section 115, correct, errors of fact, however gross they may be or even errors of law. It can only do so when the said errors have relation to the jurisdiction of the Court to try the dispute itself. The ratio of the decision in Manindra Land and Building Corporation's case (supra) was relied upon.
4. After hearing Counsel for the parties I find that when the trial Court has relied upon evidence which is inadmissible or based decision ignoring material evidence produced in the case, it would be non-exercise of jurisdiction by the Court in deciding the dispute and this Court can, in exescise of jurisdiction under Section 115 of the C.P.C. pass appropriate and just order in that respect.
5. Smt. Gurveen Kaur in her affidavit stated that she was not earning any income from the profession. Before her marriage she was earning about Rs 500 per month as she was working with Shri Kuldip Singh, Senior Advocate (Now Judge of the Supreme Court). After the marriage when she parted with the husband she has not appeared in any case in the High Court although she has started visiting the same. The averment of her husband that she was earning Rs. 7000 per month before the marriage was without any basis. On the other hand the respondent's case is that Gurveen Kaur had been practising in the High Court after the marriage and she has been proclaiming her income to be Rs. 7000 per month. It was in support of this allegation that affidavits of three Advocates; namely, Jatinder Singh, Paramjit Singh and Surjit Singh were produced. The affidavit of Jatinder Singh was executed on September 29,1989. However, it is attested by the Oath Commissioner on October 7,1989. Likewise the affidavit of Paramjit Singh was executed on October 3, 1989 but was attested on October 4, 1989 by the Oath Commissioner This by itself shows that these affidavits were not executed in the presence of Oath Commissioner. At this stage no enquiry on this question is being made as according to the avernments made in the three affidavits made in the three affidavits, it cannot be said as to which period these assertions relate and these affidavits are of no use to the husband. The subject matter of para 2 of the affidavits is common except that in the affidavits of Surjit Singh Tej while mentioning the figure it is noticed as under :
"between Rs. 7000 to Rs. to Rs. 8,000"
6. Whereas in the two other affidavits the figure given is Rs. 7000. I quote para 2 of the affidavit of Jatinder Singh as under : 'That Smt. Gurveen Kaur is known to me. She used to often confide in me and some other colleagues that she was doing very well in her profession and was being supported by the police officers who had been subordinate to her father in Haryana Police, from where he had retired from a seniour position. She generally says that her earning from her legal practice is about Rs. 7,000 per month. She often says that her position is much better than most of the young lawyers due to her family connections
7. Two things are conspicuously absent in the aforesaid affidavit. Firstly, as to when Gurveen Kaur made such an admission to these advocates. Secondly, regarding the period to which this so-called admission related to, i.e. before her marriage or after she had left the house of her husband and re-started the practice. Thus three affidavits fail to establish that at the relevant time i.e. filing of the application under Section 24 of the Act or thereafter Gurveen Kaur was earning about Rs. 7,000 per month, The District Judge was completely in error in relying upon these affidavits to come to the conclusion that the income of Gurveen Kaur was Rs. 7,000 per month.
8. Learned Counsel for the respondent S. Meja Singh Sadhu has further referred to other evidence produced in the case to indicate that Gurveen Kaur was having source of income. Reference has been made to copy of the First Information Report which was filed by Gurveen Kaur before the Police which was produced in the case (page 53 of the record). There was a reference in this report that there was one Fixed Deposit Receipt of Rs. 25,000 with her. The other fact pointed, out is that few days before she left the house, she had withdrawn a sum of Rs. 10,000 from the joint account of the parties. Since there is no dispute regarding the said item I need not mention to the evidence. The other fact pointed out is that she has been earning a sum of Rs. 292 per month towards interest from Canara Bank which would indicate that she had substantial amount in the Fixed Deposit. A certificate of the Canara Bank was produced (page 43 of the record). At the time the parties separated; Gurveen Kaur was not practising. This was after few months of the marriage. Thereafter Gurveen Kaur delivered a female child and by the time she filed application under Section 24 of the Act, as per her affidavit, she had spent the amount of the Fixed Deposit Receipt as well as the sum of Rs. 10,000 which was withdrawn from the joint account and thus she had no other source of income. Mere existence of Fixed Deposit Receipt or immovably property will not be sufficient to deny the claim of the spouse for maintenance pendente lite. It was not the intention of the Legislature that the applicant should be penniles person to ask for maintenance. What Section 24 requires is that there should be independent source of income. In the present case since Gurveen Kaur had filed an affidavit that she had spent the sum of Rs. 35,000 as detailed above. The only other evidence of income which has been produced is of a sum of Rs. 292 per month interest on some amount which may also belying to her credit. It is only the interest which can be treated as source of income available to her month.
8. Assuming for the sake of argument that still a sum of Rs. 35,000 is available with the wife-Gurveen Kaur, that per-se is no ground to deny her maintenance and litigation expenses. The wife is required to be maintained in the same standard of living which her husband or both the parties have been living. As far as the husband is concerned full details of the properties in which he had the share were given in the application under Section 24 of the Act. In all details of six properties including shop-cum-Office and residential houses were given. In the reply filed by the husband the allegation was vaguely denied without specifying his shares in all those properties. Further copies of the income-tax assessments were produced which do indicate the share of the husband in some of the properties. Copy of the assessment framed for the year 1987-88 (at page 77) and of the order 1988-89 (at page 79) have been perused. In four of the properties the share of the husband was defined. In sixth property loss was shown. The data given these assessments is sufficient to come to a conclusion regarding the earning capacity of the husband.
10. From the details of assessment for the year 1987-88 it is Clear that income from the four properties was shown at Rs. 90,529.00. Loss from House No. 516, Sector 13-D, Chandigarh, was shown as Rs. 4,640. The net income was shown Rs. 85,889. Thereafter certain deduction were made and the taxable was shown as Rs. 65,689. Similarly for the assessment year 1983-89 assessable income was shown as Rs. 91,456. In the affidavit of Shri Ranjit Singh Sandhu, dated November 1,1989, it was clarified that for the assessment year 1987-88 income-tax paid was Rs. 21,186 and L.I.C. premium paid Rs. 5,475. In this way the net income was reduced to Rs. 39,029 Monthly income on that basis was stated to be Rs. 3,252, 41P. Since loan had been taken for purchase of a car, a sum of Rs. 3,000 was being paid to; Punjab and Sind Bank leaving a very meagre amount for Kanjit Singh Sandhu for his own expenses Likewise in the said affidavit deductions were made of income tax and payment of loan etc. showing deficit of Rs. 1,771.42 for the other year. On this data it was argued by S. Meja Singh, Advocate for the husband, that there was no income with the husband to be shared by the wife and this position was accepted by the District Judge. There is fallacy in the argument. The District Judge completely ignored the fact that during the year 1987-88 Shri Ranjit Singh Sandhu had invested a sum of Rs. 30,000 for purchasing National Savings Certificates and in the next year Rs. 40,000. By spending money in the National Savings Certificates the husband could not legally deprive his wife of maintenance. If that amount is also considered as income available with the husband, it would be around Rs. 3,000 per month.
11. Ranjit Singh Sandhu, the respondent, took loan from the Bank and in application submitted to the Bank he showed his income Rs. 29,900 per month. The aforesaid income was from the properties per details given in the application (page 47 of the record). Ranjit Singh Sandhu simply denied the allegations of the wife regarding his professional income. However, he did not assert himself regardmg the amount of income from the profession. Admittedly he is practising in the High Court. Even if in the matter of time he was junior by a year or so to the wife, he must be earning some amount of which he had the special knowledge and he was expected to disclose the same.
12. The parties have a female child who is living with the petitionerwife. According to the learned Counsel for the husband the child could not claim maintenance in the proceedings under Section 24 of the Act. In support of this contention reliance has been placed on the decision of the Orissa High Court in Akasam Chinna Babu v. Akasam Parbati and Another, A.I.R. 1967 Orissa 163. It was held that under Section 24 of the Act only the wife or the husband, as the case may be, was entitiled to pendente lite maintenance. Daughter could not be granted such maintenance. This matter has been considered by this Court and it has been held that while granting maintenance to the wife the fact that a child was also brought up by her could be taken into consideration and accordingly maintenance to be fixed for the child could be granted to the wife. Such a matter was considered by this Court in Mohan Singh v. Smt. Pushpa Devi, 1978 H.L.R. 586 and held as above Sharda v. Krishan Kumar, 1984(2) H.L.R. 476 was a case where both the spouses were earning and 50% of the maintenance for the child was ordered to be paid by the husband in an application filed by the wife under Section 24 of the Act. In Kamlesh Arora v. Jugal Kishore Arora, 1989 (2) H.L.R. 208, on the application filed under Section 24 of the Act maintenance for the minor daughter living with the mother was allowed. Similar view was taken in Neelam v. Ramesh Kumar, 1989 (2) H.L.R. 210. The District Judge completely overlooked this legal aspect of the matter. Noticing that the petitioner-wife maintaining her infant child, the District Judge did not adjudicate upon the liability of the husband for maintaining the infant child. The District Judge, therefore, failed to exercise the jurisdiction vested in the Court.
13. There is no fixed formula for allowing maintenance out of the income of the husband to the wife. In some cases ?rd of the income of the husband has been allowed as maintenance to the wife and in some cases one-half of the income. As already noticed above, maintenance for the wife is to be fixed keeping in view all the facts and circumstances, of each case. Taking into consideration that even after the marriage the wife has started visiting High Court and that she may be earning some amount in the profession and that she has also got about a sum of Rs. 300 per month as interest. She has to maintain herself and the child and the amount so earned is not considered sufficient for her maintenance. The respondent-husband has sufficient regular income from his properties as discussed above. He also has some income from his profession although his standing is not much. Taking his savings from the income from the properties at the minimum at Rs. 3,000 per mensem as discussed above and having no other liabilities, except as discussed above, it would be fair if a sum of Rs. 1,500 per mensem is fixed as maintenance to be paid by him to his wife Gurveen Kaur during pendency of the petition filed under Section 13 of the Hindu Marriage Act.
14. Crl. Misc. No. 1921 and CM. No. 1590-CII of 1990 were filed on behalf of the respondent-husband which are also being disposed of.
15. Out of them CM, No. 1590-CII relates to taking into consideration additional evidence and CM. No. 1921 is under Section 340 of the Code of Criminal Procedure for taking criminal proceedings against the present petitioner for the making false assertions. In CM. No. 1921 for taking criminal proceedings, the husband wanted to produce on the record certain bills of hotel Mountview alongwith the statement of an employee of the said hotel recorded under Section 161 of the Cr.P.C. and one cheque for Rs. 10,000 deposited by the wife-petitioner with M/s. Jagat Jit Industries and certificate of the State Bank Patiala regarding encashment of the aforesaid cheque. As far as statement of the employee of the hotel recorded under Section 161, Cr.P.C., is concerned, the same cannot be taken into consideration as such a statement can only be taken into consideration in the trial of the criminal case during investigation of which such statement was recorded in view of the provisions of Section 162 of the Cr.P.C. Regarding three bills of the hotel Mountview indicating that very nominal amount was spent on the marriage of the parties by father of the wife, whereas the assertion of the wife was that huge amount was spent, are irrelevant for the purposes of deciding the present revision petition. Cheque for Rs. 10,000 is also one of the documents sought to be taken into consideration in C.M. No. 1590 of 1990. As already discussed, while deciding the revision petition on merits, even this amount was either with the petitioner-wife or in a Fixed Deposit, only the interest accruing thereon could be taken into consideration. No further importance can be attached to this cheque either for considering on merits or for taking criminal proceedings against the petitioner as the stand of the petitioner was that she had spent a sum of Rs. 10,000 withdrawn from the joint account. It is not a fit case for taking any criminal proceedings against the petitioner. With the above observations these miscellaneous applications also stand disposed of.
16. For the reasons recorded above, this revision petition is accepted the order of the District Judge, is set aside and the respondent is directed to pay a sum of Rs. 1,500 per mensem as maintenance pendente lite to Gurveen Kaur. The order will be effective from the date of filing of the application under Section 24 of the Hindu Marriage Act. I also fix a sum of Rs. 3,000 at present towards expenses keeping in view the nature of the allegations litigation and the nature of the evidence to be produced in the case. The litigation expenses and the arrears of maintenance would be paid by the date to be fixed by the trial Court after appearance of the parties there. Maintenance paid during the pendency of the revision petition would be adjusted. Both the parties through their Counsel are directed to appear in the Court of the District Judge on April 17,1990.
Punjab-Haryana High Court
Gurveen Kaur vs Ranjit Singh Sandhu on 12 April, 1990
Equivalent citations: I (1992) DMC 49, (1990) 98 PLR 148
1. The wife-Mrs. Gurveen Kaur challanges in this revision order of the District Judge, Chandigarh, dated December 6, 1986, dismissing her application filed under Section 24 of the Hindu Marriage Act for grant of litigation expenses and maintenance pendente lite. Ranjit Singh Sandhu-the husband initially filed a petition under Section 9 of the Hindu Marriage Act (hereinafter called 'the Act') for restitution of conjugal rights against Mrs. Gurveen Kaur. Thereafter the same was amended and a petition under Section 13 of the Act was filed for dissolution of marriage on the ground of cruelty. Subsequently, the petition was again amended and the ground of adultery was also included. After written statement was filed certain allegations were made in the written statement on the basis of which the original petition was again amended in order to include those allegations which also amounted to cruelty as alleged by the husband. Mrs. Gurveen Kaur-the wife filed an application under Section 24 of the Act for the grant of maintenance pendente lite at the rate of Rs. 30,000, per month and litigation expenses Rs. 5,000. She alleged that there was no source of income to her. On the other hand the husband owned immovable properties getting huge income. He was also practising as an Advocate and was earning from the profession. The husband while contesting the application inter alia pleaded that the wife was also a practising Advocate and was earning hand. She had also money with her. Some details of Fixed Deposit Receipt and cash amount was given. Both the parties produced affidavits in support of their allegations and the District Judge, after considering the evidence produced, rejected the application.2. On behalf of the petitioner-wife it has been argued that the District Judge was wrong in accepting the affidavits of three Advocates who had deposed about the admission made by the petitioner-wife that she was earning about Rs. 7,000 per month, from the profession. Secondly, it has been argued that sufficient evidence was produed on the record to indicate the income of the husband which was completely ignored by the District Judge. Without going into the merits of the allegations at this stage, the objection raised by the Counsel for the respondent-husband is being dealt with.
3. It has been argued on behalf of the respondent, Mr. Meja Singh Sandhu, Advocate, that the scope of revision under Section 115 of the Civil Procedure Code is very limited. This Court should not interfere with the order of the trial Court even if it is erroneous on facts or in law. In support of this contention reliance has been placed on the decisions of the Supreme Court. In Manindra Land Building Corporation Ltd. v. Bhutnath Banerjee and Ors., A.I.R. 1964 Supreme Court 1536, it was observed that it was not open to the High Court in the exercise of its revisional jurisdiction under Section 115, to question the findings of facts recorded by a subordinate Court Section 115 applies to cases involving questions jurisdiction, i.e. questions regarding irregular exercise or non-exercise of jurisdiction or the illegal assumption of jurisdiction by a Court and is not directed against conclusion of law or fact in which questions of jurisdiction are not involved. In Pandurang Dhondhi Chougule and Ors. v. Maruti Hari Yadav and Ors., AIR, 1966 Supreme Court 153, it was observed that the High Court could not while exercising its jurisdiction under Section 115, correct, errors of fact, however gross they may be or even errors of law. It can only do so when the said errors have relation to the jurisdiction of the Court to try the dispute itself. The ratio of the decision in Manindra Land and Building Corporation's case (supra) was relied upon.
4. After hearing Counsel for the parties I find that when the trial Court has relied upon evidence which is inadmissible or based decision ignoring material evidence produced in the case, it would be non-exercise of jurisdiction by the Court in deciding the dispute and this Court can, in exescise of jurisdiction under Section 115 of the C.P.C. pass appropriate and just order in that respect.
5. Smt. Gurveen Kaur in her affidavit stated that she was not earning any income from the profession. Before her marriage she was earning about Rs 500 per month as she was working with Shri Kuldip Singh, Senior Advocate (Now Judge of the Supreme Court). After the marriage when she parted with the husband she has not appeared in any case in the High Court although she has started visiting the same. The averment of her husband that she was earning Rs. 7000 per month before the marriage was without any basis. On the other hand the respondent's case is that Gurveen Kaur had been practising in the High Court after the marriage and she has been proclaiming her income to be Rs. 7000 per month. It was in support of this allegation that affidavits of three Advocates; namely, Jatinder Singh, Paramjit Singh and Surjit Singh were produced. The affidavit of Jatinder Singh was executed on September 29,1989. However, it is attested by the Oath Commissioner on October 7,1989. Likewise the affidavit of Paramjit Singh was executed on October 3, 1989 but was attested on October 4, 1989 by the Oath Commissioner This by itself shows that these affidavits were not executed in the presence of Oath Commissioner. At this stage no enquiry on this question is being made as according to the avernments made in the three affidavits made in the three affidavits, it cannot be said as to which period these assertions relate and these affidavits are of no use to the husband. The subject matter of para 2 of the affidavits is common except that in the affidavits of Surjit Singh Tej while mentioning the figure it is noticed as under :
"between Rs. 7000 to Rs. to Rs. 8,000"
6. Whereas in the two other affidavits the figure given is Rs. 7000. I quote para 2 of the affidavit of Jatinder Singh as under : 'That Smt. Gurveen Kaur is known to me. She used to often confide in me and some other colleagues that she was doing very well in her profession and was being supported by the police officers who had been subordinate to her father in Haryana Police, from where he had retired from a seniour position. She generally says that her earning from her legal practice is about Rs. 7,000 per month. She often says that her position is much better than most of the young lawyers due to her family connections
7. Two things are conspicuously absent in the aforesaid affidavit. Firstly, as to when Gurveen Kaur made such an admission to these advocates. Secondly, regarding the period to which this so-called admission related to, i.e. before her marriage or after she had left the house of her husband and re-started the practice. Thus three affidavits fail to establish that at the relevant time i.e. filing of the application under Section 24 of the Act or thereafter Gurveen Kaur was earning about Rs. 7,000 per month, The District Judge was completely in error in relying upon these affidavits to come to the conclusion that the income of Gurveen Kaur was Rs. 7,000 per month.
8. Learned Counsel for the respondent S. Meja Singh Sadhu has further referred to other evidence produced in the case to indicate that Gurveen Kaur was having source of income. Reference has been made to copy of the First Information Report which was filed by Gurveen Kaur before the Police which was produced in the case (page 53 of the record). There was a reference in this report that there was one Fixed Deposit Receipt of Rs. 25,000 with her. The other fact pointed, out is that few days before she left the house, she had withdrawn a sum of Rs. 10,000 from the joint account of the parties. Since there is no dispute regarding the said item I need not mention to the evidence. The other fact pointed out is that she has been earning a sum of Rs. 292 per month towards interest from Canara Bank which would indicate that she had substantial amount in the Fixed Deposit. A certificate of the Canara Bank was produced (page 43 of the record). At the time the parties separated; Gurveen Kaur was not practising. This was after few months of the marriage. Thereafter Gurveen Kaur delivered a female child and by the time she filed application under Section 24 of the Act, as per her affidavit, she had spent the amount of the Fixed Deposit Receipt as well as the sum of Rs. 10,000 which was withdrawn from the joint account and thus she had no other source of income. Mere existence of Fixed Deposit Receipt or immovably property will not be sufficient to deny the claim of the spouse for maintenance pendente lite. It was not the intention of the Legislature that the applicant should be penniles person to ask for maintenance. What Section 24 requires is that there should be independent source of income. In the present case since Gurveen Kaur had filed an affidavit that she had spent the sum of Rs. 35,000 as detailed above. The only other evidence of income which has been produced is of a sum of Rs. 292 per month interest on some amount which may also belying to her credit. It is only the interest which can be treated as source of income available to her month.
8. Assuming for the sake of argument that still a sum of Rs. 35,000 is available with the wife-Gurveen Kaur, that per-se is no ground to deny her maintenance and litigation expenses. The wife is required to be maintained in the same standard of living which her husband or both the parties have been living. As far as the husband is concerned full details of the properties in which he had the share were given in the application under Section 24 of the Act. In all details of six properties including shop-cum-Office and residential houses were given. In the reply filed by the husband the allegation was vaguely denied without specifying his shares in all those properties. Further copies of the income-tax assessments were produced which do indicate the share of the husband in some of the properties. Copy of the assessment framed for the year 1987-88 (at page 77) and of the order 1988-89 (at page 79) have been perused. In four of the properties the share of the husband was defined. In sixth property loss was shown. The data given these assessments is sufficient to come to a conclusion regarding the earning capacity of the husband.
10. From the details of assessment for the year 1987-88 it is Clear that income from the four properties was shown at Rs. 90,529.00. Loss from House No. 516, Sector 13-D, Chandigarh, was shown as Rs. 4,640. The net income was shown Rs. 85,889. Thereafter certain deduction were made and the taxable was shown as Rs. 65,689. Similarly for the assessment year 1983-89 assessable income was shown as Rs. 91,456. In the affidavit of Shri Ranjit Singh Sandhu, dated November 1,1989, it was clarified that for the assessment year 1987-88 income-tax paid was Rs. 21,186 and L.I.C. premium paid Rs. 5,475. In this way the net income was reduced to Rs. 39,029 Monthly income on that basis was stated to be Rs. 3,252, 41P. Since loan had been taken for purchase of a car, a sum of Rs. 3,000 was being paid to; Punjab and Sind Bank leaving a very meagre amount for Kanjit Singh Sandhu for his own expenses Likewise in the said affidavit deductions were made of income tax and payment of loan etc. showing deficit of Rs. 1,771.42 for the other year. On this data it was argued by S. Meja Singh, Advocate for the husband, that there was no income with the husband to be shared by the wife and this position was accepted by the District Judge. There is fallacy in the argument. The District Judge completely ignored the fact that during the year 1987-88 Shri Ranjit Singh Sandhu had invested a sum of Rs. 30,000 for purchasing National Savings Certificates and in the next year Rs. 40,000. By spending money in the National Savings Certificates the husband could not legally deprive his wife of maintenance. If that amount is also considered as income available with the husband, it would be around Rs. 3,000 per month.
11. Ranjit Singh Sandhu, the respondent, took loan from the Bank and in application submitted to the Bank he showed his income Rs. 29,900 per month. The aforesaid income was from the properties per details given in the application (page 47 of the record). Ranjit Singh Sandhu simply denied the allegations of the wife regarding his professional income. However, he did not assert himself regardmg the amount of income from the profession. Admittedly he is practising in the High Court. Even if in the matter of time he was junior by a year or so to the wife, he must be earning some amount of which he had the special knowledge and he was expected to disclose the same.
12. The parties have a female child who is living with the petitionerwife. According to the learned Counsel for the husband the child could not claim maintenance in the proceedings under Section 24 of the Act. In support of this contention reliance has been placed on the decision of the Orissa High Court in Akasam Chinna Babu v. Akasam Parbati and Another, A.I.R. 1967 Orissa 163. It was held that under Section 24 of the Act only the wife or the husband, as the case may be, was entitiled to pendente lite maintenance. Daughter could not be granted such maintenance. This matter has been considered by this Court and it has been held that while granting maintenance to the wife the fact that a child was also brought up by her could be taken into consideration and accordingly maintenance to be fixed for the child could be granted to the wife. Such a matter was considered by this Court in Mohan Singh v. Smt. Pushpa Devi, 1978 H.L.R. 586 and held as above Sharda v. Krishan Kumar, 1984(2) H.L.R. 476 was a case where both the spouses were earning and 50% of the maintenance for the child was ordered to be paid by the husband in an application filed by the wife under Section 24 of the Act. In Kamlesh Arora v. Jugal Kishore Arora, 1989 (2) H.L.R. 208, on the application filed under Section 24 of the Act maintenance for the minor daughter living with the mother was allowed. Similar view was taken in Neelam v. Ramesh Kumar, 1989 (2) H.L.R. 210. The District Judge completely overlooked this legal aspect of the matter. Noticing that the petitioner-wife maintaining her infant child, the District Judge did not adjudicate upon the liability of the husband for maintaining the infant child. The District Judge, therefore, failed to exercise the jurisdiction vested in the Court.
13. There is no fixed formula for allowing maintenance out of the income of the husband to the wife. In some cases ?rd of the income of the husband has been allowed as maintenance to the wife and in some cases one-half of the income. As already noticed above, maintenance for the wife is to be fixed keeping in view all the facts and circumstances, of each case. Taking into consideration that even after the marriage the wife has started visiting High Court and that she may be earning some amount in the profession and that she has also got about a sum of Rs. 300 per month as interest. She has to maintain herself and the child and the amount so earned is not considered sufficient for her maintenance. The respondent-husband has sufficient regular income from his properties as discussed above. He also has some income from his profession although his standing is not much. Taking his savings from the income from the properties at the minimum at Rs. 3,000 per mensem as discussed above and having no other liabilities, except as discussed above, it would be fair if a sum of Rs. 1,500 per mensem is fixed as maintenance to be paid by him to his wife Gurveen Kaur during pendency of the petition filed under Section 13 of the Hindu Marriage Act.
14. Crl. Misc. No. 1921 and CM. No. 1590-CII of 1990 were filed on behalf of the respondent-husband which are also being disposed of.
15. Out of them CM, No. 1590-CII relates to taking into consideration additional evidence and CM. No. 1921 is under Section 340 of the Code of Criminal Procedure for taking criminal proceedings against the present petitioner for the making false assertions. In CM. No. 1921 for taking criminal proceedings, the husband wanted to produce on the record certain bills of hotel Mountview alongwith the statement of an employee of the said hotel recorded under Section 161 of the Cr.P.C. and one cheque for Rs. 10,000 deposited by the wife-petitioner with M/s. Jagat Jit Industries and certificate of the State Bank Patiala regarding encashment of the aforesaid cheque. As far as statement of the employee of the hotel recorded under Section 161, Cr.P.C., is concerned, the same cannot be taken into consideration as such a statement can only be taken into consideration in the trial of the criminal case during investigation of which such statement was recorded in view of the provisions of Section 162 of the Cr.P.C. Regarding three bills of the hotel Mountview indicating that very nominal amount was spent on the marriage of the parties by father of the wife, whereas the assertion of the wife was that huge amount was spent, are irrelevant for the purposes of deciding the present revision petition. Cheque for Rs. 10,000 is also one of the documents sought to be taken into consideration in C.M. No. 1590 of 1990. As already discussed, while deciding the revision petition on merits, even this amount was either with the petitioner-wife or in a Fixed Deposit, only the interest accruing thereon could be taken into consideration. No further importance can be attached to this cheque either for considering on merits or for taking criminal proceedings against the petitioner as the stand of the petitioner was that she had spent a sum of Rs. 10,000 withdrawn from the joint account. It is not a fit case for taking any criminal proceedings against the petitioner. With the above observations these miscellaneous applications also stand disposed of.
16. For the reasons recorded above, this revision petition is accepted the order of the District Judge, is set aside and the respondent is directed to pay a sum of Rs. 1,500 per mensem as maintenance pendente lite to Gurveen Kaur. The order will be effective from the date of filing of the application under Section 24 of the Hindu Marriage Act. I also fix a sum of Rs. 3,000 at present towards expenses keeping in view the nature of the allegations litigation and the nature of the evidence to be produced in the case. The litigation expenses and the arrears of maintenance would be paid by the date to be fixed by the trial Court after appearance of the parties there. Maintenance paid during the pendency of the revision petition would be adjusted. Both the parties through their Counsel are directed to appear in the Court of the District Judge on April 17,1990.
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