Venkateswara Rao, J.:— The principal question that has to be answered in this appeal, which is referred to the Bench by one of us sitting alone, is as to whether the civil Court has no jurisdiction to entertain a suit for maintenance by a Hindu wife against her husband after the dismissal of a petition by the latter for restitution of conjugal rights, in view of the provision of Sections 4 and 25 of the Hindu Marriage Act.
2. Respondents 1 and 2, who are the wife and daughter respectively of the appellant, filed the suit for separate maintenance, past and future, together with incidental reliefs and also provisions for the marriage expenses of the 2nd respondent alleging legal cruelly and abandonment against the appellant. This suit was resisted by the appellant who filed written statement denying the legal cruelty and abandonment alleged against him and contending that since his application for restitution of conjugal rights was dismissed by the District Court, that court alone and not the ordinary civil Court has jurisdication to entertain the suit in view of the provisions of sections 4 and 25 of the Act and that the sum claimed towards maintenance and marriage expenses of the 2nd respondent is, in any view, excessive. The learned Subordinate Judge negatived the appellants contention that the Civil Court has no jurisdiction and that the only remedy, if any, of the respondents is to move the matrimonial court under section 25 of the Act. |He likewise found in favour of the plaintiffs on the question of their right to be maintained separately and marriage expenses of the 2nd plaintiff and accordingly passed a decree with costs granting (1) maintenance to both the plaintiffs from the date of the petition for leave to sue in forma pauperis at Rs. 100/- and Rs. 50.per mensem respectively restricting the 2nd plaintiff's right to maintenance till such time as she remains unmarried (2) Rs. 1,000- to the 1st plaintiff as provision for her residence and (3) Rs. 5,000/- to the 2nd plaintiff as provision for marriage expenses. He created a charge over the entire plaint schedule property for the due payment of the aforesaid sums. It is to question the correctness of this decision that the present appeal has been preferred.
3. As already stated, the main question that has to be considered in this appeal is as to whether the jurisdiction of the ordinary civil Courts to entertain a suit by a Hindu wife against her husband is taken away the moment the latter invokes, though unsuccessfully, the aid of the matrimonial court for restitution of conjugal rights and wife's remedy in such circumstances is only an application to that Court under section 25 of the Hindu Marriage Act, which will hereinafter be referred to as the Act. Learned counsel for the appellant argued that since the Act is a complete and self-contained enactment of the law relating to marriage among Hindus, no other Court except the Court prescribed by that Act viz., the District Court as defined in section 3 (b) thereof has jurisdiction to adjudicate upon matters for which provision is made in the Act. In other words, his contention is that the right to take cognizance of an action by a Hindu wife, for maintenance when once her husband has had recourse to the matrimonial Court for any one of the reliefs specified in the Act vests exclusively in that Court and the ordinary civil court has no longer jurisdiction in such matters as Section 25 of the Act makes specific provisions for the grant of maintenance, by the Court exercising jurisdiction under the Act. It is further urged that the jurisdiction of the ordinary civil courts to entertain actions in respect of matters for which provision is made in the Act should be deemed to have been taken away in view of the overriding effect of sec. 4 of the Act also.
4. It will be useful to reproduce the relevant provisions of the Act in order to be able to appreciate the contentions urged in support of this appeal. The preamble to the enactment says that it is “An Act to amend and codify the law relating to marriage among Hindus”.
5. The term “District Court” is defined in sec. 3 (b) to mean, in any area for which there is a City Civil Court, that Court; and in any other area the principal Civil Court of original jurisdiction and to include any other Civil Court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act.
6. The over-riding effect of the Act is brought out in sec. 4 which is to the following effect:—
“4. Save as otherwise expressly provided in this Act,—
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act”.
7. Section 25, to the extent it is material for our purpose, reads:
“25 (1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband as the case may be, order that the respondent shall, while the applicant remains unmarried, pay to the applicant for her or his maintenance and support such gross sums or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant and the conduct of the parties, it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent:”
8. Ordinary Civil Courts are invested with jurisdiction by sec. 9 of the Code of Civil Procedure to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. It is also well-settled that the exclusion of jurisdiction of the Courts should not be readily inferred unless it is barred expressly or by necessary implication. The normal presumption being that ordinary Courts have jurisdiction to entertain and dispose of all suits of civil nature. It is for the party seeking to oust that jurisdiction to establish the same. There is admittedly no express provision any where in the Act taking away the jurisdiction of the ordinary Civil Courts to adjudicate upon a claim for maintenance by a Hindu wife against her husband if the latter happens to invoke before then the aid of a matrimonial Court for obtaining some relief under the Act. It, therefore becomes necessary to examine, if, as contended by the learned counsel, any particular provision of the Act has the effect of impliedly taking away the jurisdiction of the Civil Courts to try suits like the one under consideration.
9. It is contended on the strength of the preamble to the Act that it is a self contained enactment and is not only exhaustive but is also exclusive in respect of all the matters dealt with by it and that the jurisdiction of the civil courts to entertain a suit like the one, out of which this appeal has arisen, should be deemed to have been impliedly taken away as provision is made in sec. 25 of the Act to make an order for payment of maintenance to the wife. There is no gainsaying that the “object of modification of a particular branch of law is that on any matter specifically dealt with by such law should be sought for in the codified enactment itself” as “the essence of a Code is to be exhaustive on the matters in respect of which it declares the law and it is not the province of a judge to disregard or go outside the letter of the enactment according to its true construction” as pointed out in Gokul Mandar v. Pudmanund singh. . I.L.R 29 Cal. 707. But we are afraid that the preamble to the Act doe not render any assistance to the appellant to question the jurisdiction of the civil Court or to say that the jurisdiction to entertain the claim is exclusively with the matrimonial court as what all has been amended and codified by the Act is the law relating to marriage and not maintenance among Hindus. Maintenance is not a necessary concomitant of marriage and it is not in every case that it becomes necessary for a wife to sue her husband for maintenance. The Act is primarily meant to codify the law relating to marriage and not maintenance and there is a separate enactment viz, the Hindu Adoptions and Maintenance Act (Act 78 of 1956) dealing with the wal of adoptions and maintenance among Hindus as can be seen from the preamble thereto which reads: “An Act to amend and-codify the law relating to adoptions and maintenance among Hindus”. Sec. 18 of that Act sets out the several grounds that would entitle a Hindu wife to claim maintenance against her husband and it is on the basis of some such grounds that the respondents herein have laid the action for maintenance and other incidental reliefs against the appellant. Where there is thus a separate Code dealing with the subject of maintenance, it cannot be said that the Hindu Marriage Act is either exhaustive or exclusive of the law relating not only to marriage but also maintenance amongst Hindus, Sec. 25 of the Act as will be seen presently simply empowers the matrimonial Court to award maintenance as an ancillary relief in cases in which its aid is sought by one of the spouse for relief under secs, 9 to 13 of the Act. So, the mere fact that a provision for awarding maintenance is incorporated in the Act, by which the law relating to marriage is codified, is not by itself sufficient to infer exclusion of jurisdiction o the ordinary courts to entertain claims' for maintenance by a Hindu wife against her husband.
10. Reference may be made in this context to Dhulabhai v. State of M.P . A.I.R 1969 S.C 78. in, which their Lordships of the Supreme Court have set out and explained the principles governing the exclusion of jurisdiction of civil courts. Principles Nos. 1, 9 and 7, which alone are relevant for our purpose in this case, are:
“(1) Where the statute gives a finality to the orders of the special tribunals the civil Courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the civil court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental, principles of judicial procedure.
(2) X X X X X Where there is no express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lay down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.
(7) An exclusion of jurisdiction of the civil Court is not readily to be inferred unless the conditions above set down apply’.
11. There is nothing in the Act to fulfil the requirements of condition No. 1 set out above in the instant case. The suit under appeal was brought not only for maintenance of the wife for period subsequent to the date on which the appellants' petition for restitution of conjugal rights was dismissed but also for some period anterior thereto besides maintenance and provision for marriage expenses of the 2nd respondent, who is the daughter of the appellant by the 1st respondent. Sec. 25 of the Act simply provides for an order directing payment of maintenance to the wife or the husband as the case may be but it does not contain any machinery for granting such relief in the case of a daughter. There is similarly nothing either in that section or in sec. 26 empowering the matrimonial court to make provision for marriage expenses of a minor daughter. It is, therefore, evident that no adequate remedy is provided in the Act empowering the special tribunal constituted thereunder to grant the several reliefs sought by the respondents to justify the inference of implied exclusion of jurisdiction of the ordinary civil courts. Condition No. 2 laid down by their Lordships of the Supreme Court is similarly absent in this case. As already stated, there is no express bar of the jurisdiction of the civil courts any where in the Act. It therefore becomes necessary to examine if the statute creates a special right or liability and provides among other things for the determination of the right or liability before it can be said that there is exclusion of the civil courts' jurisdiction by necessary implication. But it cannot, for a moment, be said that sec. 25 of the Act has created any special right in favour of a wife. The right of a Hindu married woman to claim maintenance against her husband and render the latter liable for the same in certain circumstances is an age old right and has along been available to the wife under the personal law of the spouses and is not conferred for the first time by sec. 25 of the Act. The only special right which this section has created for the first time is a right in favour of the husband to claim maintenance against his wife. May be that the remedy provided in sec. 25 is a cheap and expeditious one but is certainly not a special right or remedy at least so far as a wife, who is abandoned or subjected to legal cruelty etc., is concerned to attract principle No. 2 laid down in Dhulabhai's case. As none of the other requirements, either laid down in the said decision are satisfied in this case, principle No. 7 viz., that exclusion of jurisdiction of the civil court is not readily to be infer-red unless one or the other of conditions Nos. 1 to 6 are satisfied, comes into play, precluding the appellant from contending that the Act has taken away, by implication, the jurisdiction of the ordinary civil Court to adjudicate upon the matter in dispute. We are, therefore, unable to agree with the learned counsel for the appellant that the codification of the law relating to marriage amongst Hindus, making incidentally a provision, among other things, for awarding maintenance to a wife, has the effect of ousting the jurisdiction of ordinary civil courts.
12. We will now consider if there is any merit in the plea that the jurisdiction of the ordinary civil courts to try a suit like the one under appeal is lost on account of the over-riding effect of sec. 4 of the Act. Sec, 4 (a) is inapplicable to this case as all that it says is that any text, rule or interpretation of Hindu law etc., in force immediately before the commencement of the Act shall cease to have effect with respect to any matter for which provision is made in the Act and as it was already seen that provision for the substantive relief of maintenance to a wife is contained in a different enactment viz., the Hindu Adoptions and Maintenance Act and not in the Hindu Marriage Act. It is not suggested that claim for maintenance under sec. 18 of the Hindu Adoptions and Maintenance Act cannot also be taken cognizance of by the ordinary civil courts evidently because there is no such ban, either express or implied, anywhere in that Act. As already indicated, section 25 of the Act empowers the matrimonial court to order payment of maintenance to either spouse only as an ancillary relief in cases in which the parties happen to approach it under secs. 9 to 13 of the Act and not independent of such proceedings. It would also be too much to say that sec. 4 of the Act which is of the year 1955 would take away the jurisdiction of the ordinary civil courts to try suits for maintenance filed under section 18 of the Hindu Adoptions and Maintenance Act of 1956. That section which is in pari materia with section 4 of the Hindu Marriage Act would on the other hand seem to justify the respondent's contention that the matrimonal court has no Jurisdiction to entertain suits in which the substantive relief sought by a wife is maintenance and that the only power it has under section 25 is to award maintenance as an ancillary relief in cases coming before it under secs. 9 to 13. Sub-section (b) of section 4 has likewise no application to this case as section 9 of the Code of Civil Procedure, which empowers the ordinary civil courts to take cognizance of all suits of civil nature, including suits for maintenance, cannot be considered to be inconsistent with the provisions of section 25 of the Act which simply empowers the court exercising jurisdiction there under to order payment of maintenance to either spouse only a relief incidental to the main relief under secs. 9 to 13. sec. 9 of the Code of Civil Procedure and section 25 of the Act, in so far as they relate to the exercise of jurisdiction to order payment of maintenance, are only complementary in nature and not inconsistent with one another. In other words section 25 is only an enabling provision. So, section 4 also does not help the appellant to question the jurisdiction of the ordinary civil courts.
13. The only other provision of the Act relied upon to challenge the jurisdiction of the Court below is section 25. This section no doubt invests the matrimonial court with jurisdiction to order, incidentally, payment of maintenance to a wife but it was already seen that exclusion of jurisdiction by implication can be inferred if only the conditions laid down in Dhulabhai's case are satisfied and that those conditions have not been fulfilled in the instant case.
14. Even otherwise, sec. 25 cannot be called in aid by the appellant to question the jurisdiction of the Court below as the conditions necessary to attract its application are totally absent in this case. The matrimonial Court has power under section 25 of the Act to order payment of maintenance only “at the time of passing any decree or at any time subsequent there to implying that the existence of a decree is a condition precedent for the exercise of that jurisdiction. The question that arises is as to whether there is any such decree in this case so as to clothe the Court exercising jurisdiction under the Act with the power to order payment of maintenance to the respondents. It is urged for the respondents that there was no decree at all by the matrimonial Court in this case to attract sec. 25 of the Act as O.P 171/60 filed by the appellant under sec. 9 of the Act for restitution of conjugal rights was admittedly dismissed by that Court and also the High Court to which he carried the matter in appeal. It is, on the other hand, argued for the appellant that the word “decree” occurring in sec. 25 should be given its natural meaning in which case it would be seen that it takes in not only cases in which relief under secs. 9 to 13 of the Act is granted but also cases in which such relief is refused entailing the dismissal of the petitions. The expression “decree” is not defined anywhere in the Act. It is true that sec. 21 of the Act lays down that subject to the other provisions contained in it and to such rules as the High Court may make in this behalf, all proceedings under the Act shall be regulated as far as may be by the Code of Civil Procedure; but it does not entitle the appellant to import the definition of “decree” contained in section 2 (2) of the Code of Civil Procedure into the Hindu Marriage Act as sec. 21 of the Act simply prescribes the procedure to be followed in cases arising thereunder and nothing more. The word ‘decree, means “a declaration of the Court announcing the legal consequences of the facts found” as indicated in Black's Law Dictionary, Fourth Edition, page 498, and it is also true that the activity involved in granting as well as rejecting the relief sought by a suitor is the same: but this is no reason to interpret the word ‘decree’ used in sec. 25 in the manner suggested by the learned counsel if the context in which it occurs gives it a totally different meaning. Etymologically, it may carry the meaning sought to be attached to it by the appellant but it has to be understood in the sense in which it is used in the particular context and not literally, as an authoritative decision, whether positive or negative in character. It, therefore, becomes necessary to look at the relevant provisions of the Act to understand the context in which the word “decree” is used in sec. 25.
15. Secs. 9 to 13 of the Act provide for the passing of decrees for restitution of conjugal rights and judicial separation, of nullity of void and voidable marriages and of divorce. Sec. 23 makes it obligatory on the matrimonial Court to ‘decree’ relief in any proceedings under the Act if only it is satisfied that the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of claiming the relief, that there is no collusion between the parties or avoidable and improper delay on their part in seeking redress and that there is also no connivance at or condition of the Act forming the basis for the claim to relief and not otherwise Secs. 24 to 26 provide for making orders for maintenance pendente lite and expenses of proceedings, permanent alimony and maintenance and custody of children respectively. Sec. 27 empowers the Court to make such provision in the decree as it deems just and proper with respect to any property presented at or about the time of marriage which may belong jointly to both the husband and wife. Sec. 28 deals with the enforcement of and appeal from the decrees and orders.
16. It is indeed not without significance that the word “decree” is used in Secs. 9 to 13 only to denote adjudication culminating in the grant of one or the other of the reliefs specified in those sections. Section 27 gives us a clue to the meaning of this word when it says that the Court may make necessary provision in the “decree” with respect to any property which is presented at the time of the marriage and belongs to both the spouses. No question of making such a provision in the decree would arise if the relief sought under any one of Secs. 9 to 13 is negatived and the spouses are bound, in law, to live together and continue to occupy the same position as before viz, man and wife. But the fact that Sec. 27 contemplates provision being made in the decree with regard to property presented at the time of the marriage and belonging jointly to the spouses would make it clear that the word “decree” is intended to carry only one meaning viz, decree granting any one of the reliefs contemplated by Secs. 9 to 13 and not a decree dismissing the petition for such a relief. It may pertinently be asked as to how and why it would be necessary to make any provision regarding property presented at or about the time of marriage in a decree for restitution of conjugal rights as the parties would be liable to live together in such cases. But the Court would certainly have occasion to act under Sec. 27 even when it passes a decree for restitution of conjugal rights. It can impose in the decree conditions providing for the return of property by one spouse to the other and the like to do justice between the parties if the recalcitrant spouse should persist in staying away from the other even after a decree for restitution of conjugal rights is made. Sec. 23 is similarly of considerable assistance in understanding the particular sense in which the word “decree” is used in Sec. 25. If we are to interpret the word “decree” in the manner suggested by the learned counsel for the appellant, either spouse if so minded, would be entitled to apply for maintenance under Sec. 25 even if a petition for one or the other reliefs contemplated by Secs. 9 to 13 is dismissed on the ground of collusion, connivance, condonation and the like. But can Sec. 25 be invoked by the parties to claim maintenance even in such case? The answer to this question is in the negative as it is unthinkable that the legislature should even intend to allow the parties to abuse the provisions of Sec. 25 by conferring on them the right to claim maintenance even when the main petition for relief under Secs. 9 to 13 is dismissed on one or other of the grounds specified in Sec. 23. This section, therefore, clearly points to the inference that the term “decree” is employed in Sec. 25 to denote only a decree by which relief is granted under any one of Secs. 9 to 13 of the Act and not an order dismissing a petition for such relief.
17. Sri Lakshmaiah argued that to interpret “decree” in sec. 25 as “decree granting relief” would amount to an attempt at legislation by adding the words
“granting relief” after “decree” and that it would be wrong to do so as it is not the province of the Court to legislate while trying to interpret a statute. But no question of adding to the words in sec. 25 would arise in this case as the term “decree” itself means, in the particular context, “decree granting relief” and not “decree dismissing a petition”.
18. There is likewise no force in the plea that the word “any” would not have been used before “decree” in sec. 25 if it was intended by the legislators to cover only positive decrees or decrees by which relief is granted and not those which result in negation of relief. The word “any” has reference only to any one of the several kinds of decrees contemplated by Secs. 9 to 13 and is not intended, in our opinion, to bring into the ambit of the word an order dismissing a petition as well.
19. We are also unable to agree that the employment of the words “at the time of passing any decree or at any time subsequent therto” in Sec. 25 are intended to emphasize the point of time when the relief is to be granted and not to the content of the decree. These words would, on the other hand, indicate that grant of maintenance under sec. 25 is only ancillary to the main relief envisaged in secs, 9 to 13. This inference becomes all the more irresistable as sec. 18 of the Hindu Adoptions and Maintenance Act provided for the substantive relief of maintenance to a wife regardless of the question as to whether or not her husband has invoked the jurisdiction of the matrimonial Court before then under any one of secs. 9 to 13 of the Act.
20. Reliance was next placed on sec. 28 of the Act to say that no right of appeal from an order dismissing an application for relief under secs. 9 to 13 of the Act would have been available if the word “decree” is intended to be understood in the restricted sense of one by which some relief alone is granted, as the same word used in different portions of the same statute has normally to be given the same meaning. But it is not an inflexible rule of interpretation that the same word occurring in different parts of the same enactment should be understood in the same sense regardless of the context in which it is used. Where a word which is not defined in a statute is used in different sections thereof, in different contexts, the proper course would be to interpret it in the context in which it is used and not in the same sense throughout as the context controls the meaning of the word. “If there is anything in the context to indicate a different meaning or the principle underlying the section makes it more logical to assign a different but legitimate meaning (to a particular word), it is permissible to construe the same word occurring in two parts of (even) the same section differently. A word or phrase does not necessarily have the same meaning in all statutory provisions; indeed it may even be used in different senses in one and same statute”. (Vide Bindra's “The Interpretation of Statutes and General Clauses Act”, 4th edition, Ch. VIII, page 199), When it is thus seen that the same word used in different parts of the same enactment may carry different meanings having regard to the particular context in which it is used, it cannot be said that the word “decree” must have been used in sec. 25 to denote not only one by which some relief is granted but also an order dismissing an application for relief under secs. 9 to 13 simply because sec. 28, dealing with enforcement of and appeal from decrees and orders, provides for an appeal not only from a decree granting relief but also from one by which a petition for relief is dismissed. We are inclined to think that “decree” has to be understood in the wider and ordinary sense and as suggested by the learned counsel for the appellant only for the limited purpose of sec. 28 and not for the purpose of sec. 25 also whereunder, as already stated, grant of maintenance is only incidental to the main relief contemplated by secs. 9 to 13 of the Act.
21. Apart from what is stated above, if we are to construe Sec. 25 as making it obligatory on a Hindu wife to look to the matrimonial Court alone for maintenance when once her husband has invoked its aid for some relief under Secs. 9 to 13 of the Act, the provisions of sec. 18 of the Hindu Adoptions and Maintenance Act conferring a right on the wife to sue her husband for maintenance in certain circumstances, would become otiose to that extent. If this were the intention of the framers of the Act, they would have certainly engrafted an exception to Sec. 18 excluding wives, whose husbands have earlier laid actions in the matrimonial Court, from seeking to enforce their right of maintenance in the ordinary civil courts. To interpret the term “decree” occurring in Sec. 25 otherwise than one by which some relief is granted under Secs. 9 to 13 would also lead to discrimination between wives, whose husbands have earlier resorted to the matrimonial Court for some relief and those whose husbands did not initiate such proceedings, in the matter of choice of foum for recovering maintenance. We are, therefore, of the opinion that the word “decree” occurring in Sec. 25 is intended to cover only cases in which some relief under the Act is granted. It then follows that the appellant is not entitled to question the jurisdiction of the Court below on the basis of Sec 25 of the Act.
22. Preponderance of authority also seems to be in favour of the aforesaid view. It was held in Harilal v. Lilavati that the passing of an order of dismissal of a petition cannot be regarded as the passing of a decree within the meaning of Sec, 25 and that the judge is therefore not entitled to pass any order for permanent alimony in favour of the wife when the petition made by the husband for restitution of conjugal rights had been dismissed. This decision was referred to with approval in Minarani Majumdar… v. Dasarath Majumdar…Opposite Party. in which it was held that an order dismissing a petition for divorce by a husband under Sec. 13 is not a decree within the meaning of Sec. 25 of the Act. To the same effect is the decision in Shantaram v. Malati . A.I.R 1964 Bom. 83. wherein it was laid down by Shah, J., as he then was, that although technically speaking, dismissal of a suit or a petition may be called a decree, such decree is not contemplated by Sec. 25(1) of the Hindu Marriage Act and that accordingly the Court will not have jurisdiction to make an order for payment of alimony or maintenance in favour of a husband or wife in the event of a petition for any of the decrees mentioned in Secs. 9 to 13 of the Act being dismissed.
23. Akasam Chinna v. Parbati is another decision in which it is pointed out that passing an order of dismissal is not the same thing as passing of a decree with in the meaning of Sec. 25 of the Act and permanent alimony cannot, therefore, be granted to a party while dismissing the petition under the Act. We may finally refer to a Bench decision of our own High Court in S.A 3/64 (Urlankula Gopal Rao v. Urlankula Suramma) to the effect that even in cases where an order for Judicial separation is made under Sec. 10 of the Hindu Marriage Act, the jurisdiction of the ordinary civil courts to entertain a suit for maintenance by the wife For period subsequent to the date of order for judicial separation is not barred by Sec. 25 of the Act. Reliance is placed for the respondents on the words “while the applicant remains unmarried” in Sec. 25 to say that its application is confined to cases in which the marriage has already been dissolved by a decree of divorce, nullity land the like and that it is inapplicable when the marriage between the parties is subsisting. It is, however, unnecessary for us to express any opinion on the tenability for us to express any opinion otherwise of this contention in view of the conclusion already reached by us that sec. 25 is not attracted in this case for the reason that there is no decree, which is an essential prerequisite to bring it into play. We accordingly find that the Court below had jurisdiction to try the suit out of which this appeal has arisen.
24. No serious attempt is made on behalf of the appellant to question either the quantum of maintenance awarded to his daughter, the 2nd plaintiff, who has since been married, or the provision made for the expenses of her marriage. Learned counsel, however, argued that the rate at which maintenance is awarded by the Court below to the 1st plaintiff viz., Rs. 100/- per mensum is excessive and should be reduced. He pointed out that the 1st plaintiff claimed maintenance at the aforesaid rate on the assumption that her husband has 50 acres of wet and dry lands besides other properties fetching a net annual income of Rs. 10,000/- when in fact it was found that he is entitled to only 36 acres fetching an income of Rs. 6,500/- per annum and that the learned Subordinate Judge should have therefore awarded maintenance only in proportion to the extent of land owned by the defendant and the income realised therefrom. In other words, his contention is that Rs. 60/- alone per mensem should have been awarded to the 1st plaintiff towards maintenance. We are not impressed with the contention as the mere fact that the 1st plaintiff restricted her claim for maintenance to Rs. 100/- per mensem does not by it self establish that that is the amount which she would be entitled to claim in law if only her husband's income is 10,000/- and not less. Regard should be had not only to the value of property possessed by the husband and the income therefrom but also to several other factors such as the position and status of the parties, the means and reasonable requirements of the wife, the number of other persons whom the husband is bound to maintain and the like in determining the quantum of maintenance to which a wife is entitled So, the fact that the wife In this ease claimed maintenance at Rs. 100/- per mensem on the ground that her husband is possessed of about 50 acres of land fetching an annual income of Rs. 10,000/- does not, in our opinion, justify the imposition of a proportionate cut in the award made by the Court below simply because it was ultimately found that the appellant has a cuncubine and also some children by her but even so, an award of Rs. 100/- per mensem by way of maintenance to the 1st plaintiff cannot be considered unreasonable or excessive having regard to the present day high cost of living and the minimum requirements of the 1st plaintiff consistent with her status and the degree of comfort to which she was used while under the protection of her husband. We do not, therefore, see any valid reason to interfere with the rate at which maintenance is awarded by the Court below.
25. It is represented for the appellant that he has no objection to accommodate his wife in one of the two houses which he owns in the village, Tadivalasa, and that the decree of the Court below awarding Rs. 1,000/- to his wife towards the value of residence should, therefore, be set aside and she should be asked to stay in one of his two houses. We are, however, not prepared to consider the request of the appellant as no such offer was made to the 1st plaintiff when the suit was pending in the trial Court and as it is not possible now to visualise what objections she would have raised to this proposal if she did not like to accept the offer.
26. The only other contention urged for the appellant is that the Court below was not justified in creating a charge over the entire property belonging to him. It was already seen that the appellant's obligation to maintain his daughter, the 2nd plaintiff, has come to an end as she has since been married.
27. It is, therefore, unnecessary to charge all the properties belonging to the appellant, fetching a net annual income of Rs. 6,500/-, for the due payment of maintenance amounting to Rs. 1,200/- alone per annum to an affidavit in this Court stating that he would have no objection for the creation of a charge over the five items of land detailed in para 7 thereof and measuring Ac. 8-19 cents in all, of which Ac. 5-27 cents is wet and the rest is dry. The minimum income which these lands are capable of fetching, according to the learned trial Judge, is Rs. 2,500/-. We are inclined to think that it is enough if these lands are charged for payment of maintenance to the 1st plaintiff. Even Mr. Siva Prasada Rao, the learned counsel for the respondents, does not say that these lands will not be sufficient to ensure recovery of the maintenance awarded to the 1st plaintiff. The judgment and decree of the Court below will, therefore, be modified so as to provide for the creation of a charge on items 1 to 5 detailed in paragraph 7 of the appellant's affidavit dated 10-9-68 alone instead of all the properties belonging to him for the due payment of the sums awarded to the 1st plaintiff by way of maintenance and otherwise.
28. The appeal fails and is dismissed with costs except for the aforesaid modification of the judgment and decree of the trial Court with regard to the property liable to be charged.
29. Appeal dismissed.