1. This appeal is directed against the order of the lower Court granting permanent maintenance to the respondent herein at the rate of Rs. 111, a month as against the appellant herein.
2. The appellant herein married the respondent on 12th May, 1962. They lived together only for a few months, and thereafter the respondent left the husband and went to live with her parents. The appellant had been making attempts to bring her back. As the said attempts failed, he filed a petition for restitution of conjugal rights in O. P. 56 of 1976 and obtained a decree for restitu tion of conjugal rights on 6th May, 1975. The respondent however, did not obey the decree for restitution of conjugal rights and she did not go and live with her husband. Thereafter, in view of the said conduct of the respondent refusing to come and live with him even after the decree for restitution of conjugal rights had been passed on 6th May, 1975, the appellant sought a decree of divorce by dissolving the marriage between him and the respondent in O. P. 52 of 1977. In the said O. P., the respondent admitted that even after the order of restitution of conjugal rights was passed, she did not go and live with her husband, and that she was not willing to go and live with him. In view of the said attitude of the respondent, O. P. No. 52 of 1977 was allowed, and the marriage between the appellant and the respondent was dissolved and a decree of divorce was passed on 14th November, 1977.
3. Subsequent to the said decree of divorce, the respondent filed I. A. No. 897 of 1977 in O.P 52 of 1977, for the grant of permanent alimony and maintenance under S. 25 of the Hindu Marriage Act, 1955. In the said petition, she claimed Rs. 5,000 towards permanent alimony and Rs. 200 towards monthly maintenance. It was resisted by the appellant on the ground that the application under S. 25 filed by the respondent long after the decree of divorce had been passed, is not maintainable, and that in any event, the claim made by the respondent for Rs. 5,000 as permanent alimony and Rs. 200 as monthly maintenance was highly excessive.
4. The Court below, after considering the contentions of both the parties, held that even after a decree of divorce had been passed, the respondent can file an application for permanent alimony and maintenance under S. 25, and that such an application can be maintained even by an erring, party like the respondent who has disobeyed the decree for restitution of conjugal rights. On the basis that the husband has been receiving a salary of Rs. 585 a sum of Rs. 111 was fixed as monthly maintenance payable by the appellant to the respondent. In this view, the lower Court has passed an order directing the appellant to pay a sum of Rs. 111, as monthly maintenance to the respondent.
5. The learned advocate for the appellant contends that the relationship of husband and wife has come to an end as soon as an order has been obtained under S. 13(1)(b) of the Hindu Marriage Act, dissolving the marriage, and therefore, subsequent to the said order, the respondent cannot claim maintenance on the basis that she is the wife of the appellant. According to the learned counsel, S. 25 can be invoked only in cases where the marriage tie subsisted and not where the marriage tie is broken as a result of the decree of divorce passed by the Court. Though the said submission of the learned counsel looks attractive, there is, however, a direct decision of a Bench of the Gujarat High Court in Patel Dharanshi Pranji v. Bai Sakar Kanji . A.I.R 1965 Guj 150 touching the same question. In that case also, permanent alimony and maintenance were claimed long after the passing of the decree of divorce, and the person who claimed maintenance was also guilty of not obeying the decree for restitution of conjugal rights. When a similar objection was taken that S. 25 cannot be invoked by a wife after a decree of divorce had been passed against her and that an erring wife cannot maintain an application under S. 25 of the Hindu Marriage Act, the court held that under S. 25, permanent alimony can be granted to a wife even after a decree of divorce had been passed against her as that section specifically used the words ‘at any time subsequent thereto’ and that maintenance can be granted thereunder even to an erring spouse and that the mere fact that the wife did not comply with the decree for restitution of conjugal rights and that was the cause for passing of a decree against her cannot by itself disentitle her to claim permanent alimony under the section. In that case, Bhagwati, J. as he then was, referred to the following observations of Denning, L.J in Sydenham v. Sydenham and Illingworth . 1949 2 A11. E.R 196:
‘'There is nothing in the statute to say that a wife against whom a decree has been made cannot be awarded maintenance, and there is nothing in it about a discretion being exercised in favour of one side or the other or about a compassionate allowance. All it says is that on a decree of divorce the Court may award maintenance to the wife. This includes a guilty wife as well as an innocent one, but in awarding maintenance the Court must have regard, of course, to the conduct of the parties.”
The learned Judge also refers to the observations of Hudson, L.J in Clear v. Clear wherein a difference has been made (sic) between a common law right to get maintenance and the right to get maintenance arising by virtue of divorce legislation and that even if the wife has forfeited her right to get maintenance under the common law, she is entitled to get maintenance under a provision of the divorce legislation. After making reference to the above observations of Denning, L.J and Hudson, L.J it was pointed put in the Gujarat case that under S. 25, a permanent alimony can be granted to even an erring spouse and that the fact that the wife was the guilty spouse can only be taken as a relevant factor in assessing the conduct of the parties and in determining the amount of permanent alimony. In view of the said decision, the contention of the learned counsel for the appellant that the application for permanent alimony and maintenance by an erring wife cannot be maintained under S. 25 long after the decree of divorce had been passed against her, cannot be accepted.
6. However, on the question of quantum of maintenance, granted by the court below, the learned counsel for the appellant points out that even though the marriage took place in the year 1962, the husband and wife lived to gether only for a few months and thereafter, admittedly there is separation, and therefore, having regard to the fact that the respondent has not chosen to join the husband in spite of his best and repeated efforts and in spite of the passing of the decree for restitution of conjugal rights, even if she is entitled to any maintenance, the maintenance awarded could only be nominal. The learned counsel also points out that the lower court awarded one-fifth of his entire salary to the respondent towards maintenance and it has not taken into account the possibility of the appellant marrying again and the expenses involved in maintaining a family after such a marriage. The learned counsel also points out that prior to the decree for restitution of conjugal rights, the respondent was granted maintenance at Rs. 60 per month, and she did not agitate subsequently for anything more. It is said that the lower appellate court therefore, is in error in more or less enhancing the maintenance from Rs. 60 to Rs. 111 without any justification. The fact that the respondent was given maintenance at the rate of Rs. 60 per month from the date of decree for restitution of conjugal rights is not disputed here by the learned counsel for the respondent. However, having regard to the rise in prices of food stuffs and other articles, the respondent would be entitled to something more than what she was getting, before. As already pointed out, from the conduct of the respondent in not joining the husband in spite of his serious attempts and notwithstanding the fact that a decree for restitution of conjugal rights has been passed, she could be taken to be a guilty party. It is well established that a guilty party cannot take advantage of her guilt and make a profit out of such a guilty conduct. Therefore, the respondent's conduct cannot be completely ignored when quantifying the maintenance payable to the respondent by the appellant.
7. Taking all these factors into consideration, 1 hold that the respondent is entitled to only a sum of Rs. 75 per month as maintenance as against the sum of Rs. 111 granted by the lower court. The appeal is therefore allowed in part and the maintenance awarded by the court below is reduced from Rs. 111 to Rs. 75 per month. There will be no order as to costs.
vcs.