A.K. Sinha, J.
1. This is husband's appeal against an order passed by the trial Court granting permanent alimony to the wife under Section 25 of the Hindu Marriage Act. Brief outline of the admitted facts and circumstances under which this appeal arises is as follows :
2. Parties who are Hindus were married on 1st December, 1964. Shortly thereafter within about 7 or 8 months, the husband filed a petition for judicial separation against the wife on a number of allegations of cruelty as also desertion. While this proceeding was pending, upon her application the wife was allowed interim maintenance by the trial Court at the rate of Rs. 350 per month, which, however, on appeal to this Court was enhanced to Rs. 500 per month. On March 22, 1967 a decree for judicial separation was passed ex parte as the wife though filed written statement did not contest the proceeding at the hearing. On 14th June. 1967, the wife made an application for permanent alimony and claimed Rs. 1,500 per month After about lapse of 2 years thereafter the application for permanent alimony, though contested by the husband, was allowed and a sum of Rs. 500 per month was granted to the wife. This is how, in short, the husband felt aggrieved and preferred the present appeal.
3. It appears that before the trial Court, the application was opposed substantially on two grounds namely that (i) the wife was not entitled to any permanent alimony on the ground she treated the petitioner with cruelty and (ii) even if she is so entitled, the claim made by the wife for such alimony was excessive and illegal.
4. The learned trial Court so far as first ground is concerned took the view that judicial separation on the ground of cruelty could not operate as bar to the respondent getting permanently alimony under the Hindu Marriage Act. Counsel for the appellant, however, contends that conduct of the parties even from the time of the marriage and after separation could be relevant in adjudicating the respondent's claim for permanent alimony. It is said that under Section 25 of the Hindu Marriage Act in granting permanent alimony the Court has to consider several factors namely the income of the respondent and her other properties, the income of the applicant and his other properties and lastly the conduct of the parties. It is argued that since the appellant obtained a decree for judicial separation on the ground of cruelty of the wife her conduct must be taken into consideration even though such conduct relates to a time prior to the institution of the proceeding for judicial separation. We, however, think that though the view taken by the learned trial Court cannot be taken as a correct proposition of law, at the same time the mere fact that the applicant is the guilty party is not by itself sufficient to disentitle her to alimony. In deciding a claim for permanent alimony on the contrary, the party applying must be presumed to be innocent (See Dr. Harmousji v. Dinbai, : AIR1955Bom413 ). Although, in this case, the case of alimony was under Section 40(1) of Parsee Marriage and Divorce Act (1930), there is no material difference between Section 40 (1) of this Act and Section 25 of the Hindu Marriage Act. At any rate, the appellant does not appear to have pressed this point by adducing sufficient and proper evidence to show satisfactorily that the wife by her conduct would be disentitled to claim such alimony For although the conduct of the parties may be a relevant factor for consideration each case has to be considered on its own merits. It is therefore unnecessary to pursue the matter further. On the facts of this case we think that such conduct even if gone into could not disentitle the wife to get permanent alimony.
5. We now come to the next important point as to quantum of alimony Counsel for the appellant contends that the trial Court was influenced by a previous decision of this Court and not on any consideration of evidence in fixing quantum of permanent alimony. It is said that since the trial Court has failed to fix the amount of alimony on the basis laid down in Section 25 of the Act the matter should go back to the trial Court for a fresh decision. We do not think it would be correct to, say that the alimony was fixed by the learned trial Court following only the decision of this Court in an earlier proceeding for fixing interim alimony at the rate of Rs. 500 per month till the disposal of the substantive matrimonial proceeding. The Court found on evidence and also on appellant's own admission that since that decision there has been no substantial change in his income. The learned trial Court also found that the appellant failed to disclose his Bank account although it is his own evidence that rent paid by cheques used to be deposited in Bank and also other papers showing his actual income.
6. Counsel for the appellant has, however, contended that this Court fixed amount of Rs. 500 per month only by way of temporary measure and that also on the basis of net income of Rs. 30,000 per year. It is said that from the evidence of the appellant both oral and documentary including the return of income-tax for the year 1961-62, the net income of the appellant could not exceed Rs. 15,000 per year. In fact, it is said that the appellant's net annual income, as would appear from the income-tax return of 1062-63 after deducting Municipal Taxes. Essential Charges. Repairs etc. and wealth tax, would come to Rs. 16,554.40. It is therefore argued that the respondent cannot get a sum of Rs. 500 per month as permanent alimony. Reliance is placed on an English decision of Court of Appeal in Stibbe v. Stibbe, (1931) P 105, to show mainly that the amount of alimony must be determined out of the net income after deducting Income-tax. Essential Charges, Wealth Tax etc. The proposition laid down in this decision cannot be disputed but then what really is the net income of the party concerned in a given case must be decided on its own facts. Here, in the in-stant case, apart from the income of the disclosed house properties the admitted fact which also appear from the evidence is that the appellant built a residential house in Jodhpur Park after the decision was given by this Court in earlier appeal granting interim alimony to the respondent. Counsel for the appellant, however, contends that this house is not tenanted and is used for residential purpose and the appellant acquired this property after incurring loan of heavy amount from Life Insurance Corporation of India. Even if it is so, the appellant did not disclose this property nor any papers or documents in support of the statement now made before us. The appellant has also not produced the income-tax return relating to his income from his properties and assets at the material time. It is, however, contended that income-tax papers are no longer confidential documents and the respondent could have caused those papers to be produced from the authorities concerned. We think, in the facts and circumstances revealed in this case, it is not for the respondent but for the appellant to produce the relevant papers including the income-tax assessment of relevant periods to show his income. The appellant has also failed to produce, a noticed by the trial Court, his Bank accounts or books of accounts and other material documents relating to all his properties and income thereof So, from the conduct of the appellant it would be perfectly legitimate to draw an adverse inference against him for his failure to produce the above papers from his custody. Now, in this case, the respondent's evidence falls far short of proof of actual income of the appellant. As regards her own properties and income, she was put to scorching cross-examination but we do not find anything upon which it is possible to say that she is getting any income of the immovable properties belonging to her grandfather. It is however, contended on behalf of the appellant that father of the respondent on her own evidence has deserted his family and has not been heard of for about 8 years, and therefore her father would be deemed to be dead in the eye of law. Then the respondent as his heir must have inherited grandfather's property and naturally she is getting share of her income from that house property at Calcutta which, it is said, fetches monthly rent of about Rs. 4,000. But from the meagre evidence adduced, it is not possible to hold that respondent has inherited the house properties or she has been getting any income from that property. As regards the other immovable properties at Bhagalpur in Bihar --one is a residential house and the other is a small garden but there is equally no evidence at all that respondent has inherited these properties or they fetch any income or the respondent is getting any share from such income. So, in this case, the amount of alimony has to be determined on the basis of the income of the appellant.
7. From the evidence already discussed it appears from the return submitted by the appellant in the year 1962-63 that his net income deducting Municipal Tax, Electric Charges. Repairs, Collection Charges etc. under several heads comes to Rs. 22,479 and after deducting a sum of Rs. 5,925.60 as wealth tax the appellant's net income comes to Rs. 16,554.40. But the actual amount of wealth tax paid by the appellant at the material time had not been shown. So, if we deduct 50% on account of depreciation of the value of the house properties disclosed, the wealth tax would come to approximately about Rs. 3,000. Deducting this amount from the total sum of Rupees 22,479 we get near about a sum of Rupees 19.500. If a sum of Rs. 6,000 is added to this amount as income from the undisclosed properties, the net income of the appellant would come to about Rs. 26.000 per year. Upon these calculations it would not be altogether unreasonable to assess the appellant's net income at a sum near about Rs. 30,000 as found earlier by this Court in previous proceeding but then these calculations will involve necessarily some amount of guess work. We would therefore accept the amount of Rs. 16,554.40 though of 1962-63 admitted by the appellant now before us as his net income at the material time and proceed to determine the question of alimony on this basis.
8. Now, in English Courts rule of 1/3rd of the husband's income has been accepted as a sound working rule in awarding permanent alimony to the wife. This, however, is not an inflexible rule (see (1931) P 105) (supra). It is not seriously disputed before us that this rule can neither (be?) nor should be followed in granting alimony under the Hindu Marriage Act. But then it is, we think, always open to the Court to use its discretion on the facts of a given case. So, 1/3rd of the admitted net income of the appellant would come to about Rs. 5.500 per year which means near about a sum of Rs. 450 per month. But having regard to the facts and circumstances of this case we think it would be just and proper to allow a sum of Rs. 400 per month to the respondent as her permanent alimony which would be a little less than 1/3rd of the admitted net income of the appellant.
9. Accordingly, this appeal succeeds in part. We modify the order of the learned Court below to this extent that the appellant shall pay to the respondent a sum of Rs. 400 (Rupees Four Hundred) per month as hex permanent alimony and in all other respects the order passed by the trial Court shall stand affirmed. There will be no order as to costs,
Sen Gupta, J.