JUDGMENT
V.S. Deshpande, C.J.
(1) This appeal is by the wife and the cross-objections by the husband. Two suits were filed by the wife against the husband for maintenance. Suit No. 507 of 1968 was for maintenance from 13.5.1963 to 31-3-1966 and Suit No. 148 of 1967 was for maintenance from 1.4.1966 to 31.12.1970. The two suits were decided together by the learned single Judge who awarded maintenance to the wife at the rate of Rs. 300.00 per month till the 31st December, 1,970 and Rs. 450.00 thereafter from January, 1971. The wife has appealed for an increase in the quantum of maintenance, while the husband has filed cross-objections denying the right oft he wife to separate maintenance and also pleading that the amount of maintenance granted should be reduced.
(2) The two main questions argued before us related firstly to the right of the wife to separate maintenance and secondly to the quantum of maintenance to be allowed to her.
(3) As to the right of maintenance, sub-section (2) of Section 18 of the Hindu Adoption and Maintenance Act, 1956. lists the grounds on which a Hindu wife shall be entitled to live separately from her husband without forfeiting her right to maintenance. Ground (g)is “if there is any other cause justifying her living separately”. Between the parties there was an agreement in the year 1954 by which it was agreed that the wife would live separately and was to be paid maintenance by the husband. They have since then lived separately till now. The respondent husband appearing in person as also later on his counsel both contended that at the right of the wife to separate maintenance could be based only on the agreement and as the said agreement was a conditional one it was tried to be argued that the wife had agreed not to defame the husband and if the husband could show that the wife did not observe that condition of the agreement then the entitlement of the wife to separate maintenance on the basis of the agreement came to an end. In our view, the agreement is relevant mainly to show that both the parties agreed in 1954 that the wife could live separately without forfeiting her right to maintenance. So, far as the condition of the agreement is concerned the validity of that condition his to be judged in the light of the provisions relating to grant of maintenance in the Hindu Adoptions and Maintenance Act, 1956 under this Act there is no ground that the wife would forfeit her right to live separately and get maintenance from her husband if she defamed her husband. Sub-section (2) of Section 18 lists all the grounds any of which would entitle the wife to have separate maintenance. The Act does not state that once the wife is entitled under Section 18(2) to separate maintenance she would forfeit the right to maintenance if she spoke against her husband or defamed him. Mr. Vohra says that the appellant has not abused or defamed the respondent and she will not do so. In that view we are unable to agree with the respondent that the wife forfeited her right to maintenance because she spoke against him or defamed him. The learned counsel for the respondent further says that the wife waived her right to separate maintenance when she agreed to such a condition. But if the condition itself is not valid according to law, the question of her waiving the right to maintenance does not arise. The maintenance is based on a statutory right and it is not possible to agree to the contention that such statutory right can be waived without good reasons. We, therefore hold that the right of the wife to separate maintenance has been established.
(4) As for the quantum of the rate of maintenance payable by the husband to the wife, the learned single Judge has placed reliance mainly on the income-tax assessment orders produced by the husband for the years 1967-68 and 1968-69. The learned Judge also noted that there has been a marked increase in the income of the husband from 1965-66. It is seen that while the income of the husband was about Rs. 4,3SO.00 in 1964-65 it became Rs. 15.190.00 in 1965-66, Rs.l0,811.00 in 1966-67, Rs. 24,130.00 in 1967-68 and Rs. 29,734.00 in 1968.-69. The learned Judge, therefore, divided the period of maintenance into two parts. For the period from 135.1963 1031.12.70 the learned Judge allowed only Rs. 300.00 per month to the wife as maintenance while from 1.1.71 he increased the rate of maintenance to Rs. 450.00 .
(5) Mr. Vohra for the appellant pointed out that the cost of living has gone up several times during the last ten years or so and the parties are from a good family and the appellant cannot be expected to live separately as a single women from a good family at Rs. 450.00 per month. Even the house rent at Delhi for a decent quarter for a single person cannot be less than Rs.250.00 to Rs. 300.00 per month and the living expenses of the appellant cannot be less than Rs. 500.00 per month On the other hand, the respondent and his counsel contended that the learned single Judge while taking into account the net income of the respondent assessed to income tax has not taken into account the income-tax, wealth-tax as also the house-tax paid by the respondent. The respondent has been good enough to file a chart of the return of income filed by him and the expenses allowed by the Income tax Officer, the notional income added by the Income-tax Officer, and the net income-tax which the Income-tax levied by the Income-tax Officer as also the weallh-tax. Mr. Vohra objects to the filing of the chart by the respondent, but we think it is useful because it is based on record, and is made a part of the record. A quick glance at this figure gives us a fairly adequate idea of the net income of the respondent out of which the maintenance payable to the wife has to come.
(6) We firstly agree with the learned single Judge that the division of the total period of maintenance made by him into two parts is warranted by the increase of the income of respondent from 1965-66 onwards. The learned Judge has not increased the maintenance allowance till 1st January, 1971 probably because he wanted to be sure that the increase in income continues for some years so that he may proceed on the belief that the increase has been per month and was not temporarily confined to only a year or two.
(7) As for the years from 1963 to 1970 we were not inclined to disturb the finding of the learned single Judge that Rs. 300.00 should be awarded as the rate of maintenance to the wife. Firstly, the claim of the wife herself for the years 1963-66 was only Rs. 350.00 per month. Secondly, the income of the respondent for the distant past is not easily ascertainable. We, therefore, leave that finding of the learned single Judge undisturbed.
(8) As to the second period beginning from 1st January, 1971 we may first observe that the burden of proof to show what his income was lay on the respondent because of section 106 of the Evidence Act. The income of the-respondent was within his special knowledge. He could know about his town income better than any one else would know. The wife was only making attempts to find out what his income was. As observed by a Division Bench of this court in Asarfi Devi v. Gangasahai Kishanlal 1978 H.R.81, in determining what the income of a person on whom the burden of proof rests the court has to assume that the burden of proof has to be discharged by him and if not discharged properly then adverse inference has to be drawn against him. The learned single Judge also rightly placed some reliance on the net income of the respondent as arrived at by the Income-tax Officer in the assessment orders, but he rightly-observed that he was not bound by it and in our view be has rightly added a bit to that income to make it a more fair estimate of his real income. According to the chart filed by the respondent the income for the year 1968-69 as assessed by the Income-tax Officer was Rs. 29,740.00 . The income-tax payable by him was Rs. 6.542.00 and the wealth-tax was Rs. 824.00 . These amounts have to be deducted from the net income of the respondent. On the other hand, we find that certain expenses allowed by the Income-tax Officer have not been proved on this record in the Civil Court by the respondent. These instances are repairs Rs. 6,052.00 and house-tax Rs. 1.629.00 . These two items cancel the items of Income-tax and wealth-tax. The result is that the net income of the respondent remains at Rs. 29,740.00 as assessed by the Income-tax Officer. This, in our opinion, may be taken as the indication of the income of the respondent from 1st January, 1971 onwards in the absence of any other evidence on record. Since this was the latest assessment order filed by the respondent, we have no opinion but to take that evidence to be the nearest to the year 1971 as the basis for our calculation. In Dr. Kulbhushan Kunwar v. Smt. Raj Kumari, , there is an indication that the rate of maintenance by the husband, may be about one-fourth of the net income of the husband. On this basis we are of the view that Rs, 550.00 per month would be a fair amount of maintenance payable by the husband to the wife in the present case. We accordingly modify this part of the finding of the learned single Judge and enhance the rate of the maintenance payable by the respondent to the appellant from 1st January, 1971 to Rs. 550.00 per month
(9) With this modification the appeal is allowed partly as above and the cross-objections are dismissed. No order as to costs. The respondent is given three months’ time to pay the increased maintenance allowance.
(10) Cm 649 of 1978 by the appellant that subsequent events may be taken into consideration is dismissed as no such opportunity is given to the respondent for showing his income in the subsequent years. Cm 684/75 is also dismissed.
