Seeta Ram vs Smt. Phooli

Kan Singh, J.—This is an appeal u/s 28 of the Hindu Marriage Act. 1955, hereinafter to be referred as the "Act", against an order of the learned District Judge, Merta, awarding maintenance to the wife u/s 25 of the Act at the scale of Rs. 60/- per month consequent to the award of a decree of restitution of conjugal rights u/s 9 of the Act in favour of the wife.

Smt. Phooli applied before the Court of the learned District Judge, Merta for restitution of conjugal rights against her husband and on 10-5-1967 the learned District Judge awarded a decree of restitution of conjugal rights in favour of the wife. It is Ex. 1 on record. No appeal was filed against that decree. Thereafter the wife made an application u/s 25 of the Act for fixing permanent alimony. She claimed Rupees 200/- p. m. The application was resisted by the husband. He admitted that a decree was given in favour of the wife for restitution of conjugal rights, but he pleaded that though he was prepared to keep her, it was the wife herself who was not coming to him.

The learned District Judge framed a number of issues. Some witnesses were examined by both the parties. The learned District Judge examined the plea of the husband if he were prepared to keep the wife and for that he referred to the earlier statement of the husband wherein he stated that even if his wife were to come and live with him, he was not prepared to keep her as she was not suitable for him. He further stated that his wife was ugly faced and consequently he was not prepared to keep her. When faced with this previous statement the husband admitted that he had correctly stated so. The learned District Judge, therefore, did not accept the husband''s offer as bona fide. He held that the wife was entitled to maintenance even though she might be living separately from her husband. As regards the determination of the amount of maintenance the learned District Judge referred to the provisions of Section 23(2) and (3) of the Hindu Adoptions and Maintenance Act. 1956 and fixed the maintenance at Rs. 60/- per month.

In challenging the order of the learned District Judge, learned counsel for Seeta Ram contends that as the husband was prepared to comply with the decree for conjugal rights awarded in favour of the wife, no separate maintenance should have been granted to the wife. Learned counsel next contended that the provisions of the Hindu Adoptions and Maintenance Act, 1956 should not have been resorted to as the proceedings commenced not by a suit but by an application u/s 25 of the Hindu Marriage Act, 1955. Lastly, it was urged that the wife herself being a member of the cultivator class living in the villages would be earning for herself and. therefore, maintenance should not have been allowed or at any rate the amount awarded was excessive.

Now, so far as the offer of the husband to keep the wife is concerned, one cannot overlook the previous attitude of the husband. In his statement in proceedings u/s 9 of the Act the husband had clearly stated that Smt. Phooli would not suit him as she had an ugly face and he was not prepared to keep her. In such a situation it was necessary for the husband to satisfy the Court that he was penitent for his past attitude and now he was prepared to treat his wife with all conjugal kindness. His mere word of mouth that he is now prepared to keep the wife without his further demonstrating his bona fides would not be a sufficient ground to disentitle the wife from maintenance. I am, therefore, not inclined to disturb the conclusion reached by the learned District Judge on this aspect of the case.

It is true the present proceedings started on an application u/s 25 of the Act and not by a suit whereunder maintenance would be claimed in accordance with the provisions of the Hindu Adoptions & Maintenance Act, 1956. Nevertheless the discretion u/s 25 of the Act vested in a Court which has awarded a decree of conjugal rights or any other decree under the Act is wider. Such a discretion is not controlled by the provisions of the Hindu Adoptions and Maintenance Act, 1956. Nonetheless the principles governing the award of maintenance enshrined in Section 23 of the Hindu Adoptions and Maintenance Act, 1956 could usefully be kept in mind by the Court in dealing with an application u/s 25 of the Act. It has been held by a Division Bench of this Court in Nathulal Vs. Smt. Mana Devi, that on conclusion of the proceedings under the Hindu Marriage Act and resulting in a decree of any of the four kinds namely. (1) for restitution of conjugal rights, (2) for judicial separation. (3) for divorce, (4) for annulment of the marriage, the Court can grant permanent alimony to the wife u/s 25 of the Act and the Court has to determine the amount as "it may seem to be just" and in doing so it has to consider the income and other property of the wife the income and other property of the husband, and the conduct of the parties. It was added that Section 25 did not lay down any rigid rule or any fixed criteria for assessment of the amount and leaves the matter to the discretion of the Court while stressing that the means of the parties and their conduct are essential factors to which regard must be had.

Now, as regards the amount of maintenance awarded, it is enough to say that the husband has not led any evidence to show what would be the earning of the wife herself, though the earning in the villages is by and large, seasonal. The learned District Judge has given details of expenditure in arriving at the amount of the maintenance of Rs. 60/- per month. I do not think the approach of the learned District Judge was, in any manner, unreasonable, I am, therefore, not inclined to interfere with the order of the learned District Judge.

The result is that the appeal fails and is hereby dismissed, but I leave the parties to bear their own costs.