Alladi Kuppuswamy, T. Ramachandra Rao and K. Papiah Sastry for Appellant in A. S.460/58 and Respondent in A.S.10/59; K.B. Krishnamurthy and M.S.R. Subrahmanyam for Respondent in A.S.460/58 and Appellant in A.S.10/59.

Judgement

SATYANARAYANA RAJU, J.: -

These appeals arise out of the judgment and decree of the Court of the Subordinate Judge, Kakinada in D.S. No.142 of 1950. The defendant is the appellant in Appeal No.460 of 1958 while the plaintiff is the appellant in Appeal No.10 of 1959.

2. The circumstances which have given rise to this litigation may be briefly stated : The plaintiff is the second wife of the defendant. She filed the suit, out of which these appeals have arisen, against her husband for recovery of future maintenance at the rate of Rs.4,000/-per year and past maintenance for nine years at the rate of Rs.2,000/- per year. There was also a claim for jewels which was valued at Rs.5,000/- and for an account of her pasupukunkuma, amount (pin money) entrusted to the defendant by the plaintiffs father at the time of her marriage. There were other incidental reliefs.

3. It was alleged in the plaint that the defendant induced the plaintiffs parents, in or about December, 1928 to give her in marriage to him on the representation that he had left his first wife, who was unfit for marital life; that the plaintiff and the defendant were married and lived happily thereafter for about thirteen years till the year 1940, when the defendant began to neglect and ill treat the plaintiff after having brought back his first wife.

4. In his written statement, the defendant denied the plaint averments and his liability with regard to any of the claims made by the plaintiff. He pleaded that the plaintiff had left his house without any justifiable cause. After the above suit was filed, the defendant instituted O.S. No.22 of 1951 on the file of the Subordinate Judges Court, Kakinada for restitution of conjugal rights. Both the suits were tried together by the consent of parties. The learned trial Judge dismissed the plaintiffs suit and decreed the suit filed by the husband for restitution of conjugal rights. Aggrieved by the decrees, the plaintiff preferred A.S. Nos.900 of 1952 and 855 of 1953 on the file of this Court. Those appeals were disposed of by a common judgment rendered by Mr. Justice Chandra Reddy (as he then was) and Mr. Justice Kumarayya. That decision is reported in Jaggamma v. Satyanaryana Murthi, (1957) 2 Andh WR 520 : (AIR 1958 Andh Pra 582). It was therein held that the story of ill-treatment advanced by the plaintiff was false and that she had left her husband under the circumstances mentioned by him, without any adequate and reasonable cause. But the learned Judges held that the plaintiff could no longer be compelled to live with her husband in view of the provisions of sub-s. 2(b) of Sec.18 of the Hindu Adoptions and Maintenance Act (78 of 1956). By reason of the fact that the defendants first wife is alive, it was held that the plaintiff could claim relief under the Act, and that she would be entitled to maintenance from the date of the Act. As, however, the trial Court had not determined the quantum of maintenance, the plaintiffs suit was remanded to the trial Court for deciding the quantum of maintenance.

5. Subsequent to the decision of this Court, the trial Judge decreed future maintenance in favour of the plaintiff on and from December 22, 1956, the date of the commencement of the Act at 75 bags of paddy per year. The trial Judge gave a charge on the plaint A schedule property for the amount of maintenance decreed by him.

6. The defendant has filed the former of the appeals admitting liability to pay maintenance at the rate of 35 bags of paddy per year only and disputing the rest of the decree. The plaintiff, on the other hand, has filed the other appeal claiming that she is entitled to maintenance at the rate of Rs.4,000/- per year, the amount which she originally claimed in the suit.

7. All the other matters having been concluded by the decision of the Division Bench of this Court already referred to, the only question for decision now is as to the quantum of maintenance which the plaintiff is entitled.

8. Till the year 1946, when the Hindu Married Womens Right to Separate Residence and Maintenance Act Was enacted, a wifes right to separate maintenance and residence was not regulated by any statute. The maintenance of a wife by her husband was a matter of personal obligation arising from the very existence of the relation, and quite independent of the possession by the husband of any property, ancestral or self-acquired. A wifes first duty to her husband was to submit herself obediently to his authority, and to remain under his roof and protection. She was not, therefore, entitled to separate residence or maintenance, unless she proved that by reason of his misconduct or by his refusal to maintain her in his own place of residence or for other justifying cause, she was compelled to live apart from him. Neither unkindness not amounting to cruelty, nor the fact that the husband had taken a second wife, nor ordinarily quarrels between husband and wife, justified the wife in leaving her husbands house.

9. The Hindu Womens Right to Separate Maintenance and Residence Act, 1946, which came into force on April, 23, 1946, gave a statutory recognition to many of the principles of the Hindu Law, and at the same time liberalased the law in certain respects in favour of the married woman. Section 2 of that Act enumerated the grounds on which the wife could claim to be entitled to separate residence and maintenance from her husband. That Act, however, has now been repealed by Section 29 of the Hindu Adoptions and Maintenance Act, 1956.

10. Section 18, the provisions of which were the subject-matter of consideration by the Division Bench of this Court in the case cited above, lays down that subject to the provisions of that section, a Hindu wife, whether married before or at the commencement of the Act, shall be entitled to be maintained by her husband during her life-time. This provision substantially reiterates the Hindu law principle that the right of the wife for maintenance is an incident of the status of matrimony and a Hindu is under a legal obligation to maintain his wife. The obligation to maintain the wife is personal in character and arises from the very existence of the relation between the parties.

11. Section 18 must be read with Section 23, which is as follows :

"(1) It shall be in the discretion of the Court to determine whether any, and if so what, maintenance shall be awarded under the provisions of this Act, and in doing so the Court shall have due regard to the considerations set out in sub-section (2) or sub-sec. (3), as the case may be, so far as they are applicable.

(2) In determining the amount of maintenance, if any, to be awarded to a wife, children or aged or infirm parents under this Act, regard shall be had to-

(a) the position and status of the parties;

(b) the reasonable wants of the claimant;

(c) if the claimant is living separately, whether the claimant is justified in doing so;

(d) the value of the claimants property and any income derived from such property, or from the claimants own earnings or from any other source;

(e) the number of persons entitled to maintenance under this Act.

(3) In determining the amount of maintenence, if any to be awarded to a dependent under this Act, regard

shall be had to-

(a) the net value of the estate of the deceased after providing for the payment of his debts;

(b) the provision, if any, made under a will of the deceased in respect of the dependent;

(c) the degree of relationship between the two;

(d) the reasonable wants of the dependent;

(e) the past relations between the dependent and the deceased;

(f) the value of the property of the dependent and any income derived from such property; or from his or her earnings or from any other source;

(g) the number of dependents entitled to maintenance under this Act."

12. This provision vests a wide discretion in the Court to decide whether any maintenance should or should not be awarded. In exercising its discretion in the matter of assessing the quantum of maintenance to be awarded to the wife, the Court must have regard to all the factors set out in sub-sec. (2) of Sec.23.

13. In Mt. Ekradeshwari v. Homeswar, AIR 1929 PC 128, which is a leading case on the subject, the Privy Council has pointed out that fixation of maintenance depends upon a number of factors and must be determined on the facts of the particular case. At page 130, their Lordships observed :

"..........it may be so for the simple reason that maintenance depends upon a gathering together of all the facts of the situation, the amount of free estate, the past life of the married parties and the families, a survey of the condition and necessities and rights of the members, on a reasonable view of change of circumstances possibly required in the future, regard being of course, had to the scale and mode of living, and to the age, habits, wants and class of life of the parties. In short, it is out of a great category of circumstances, small in themselves that a safe and reasonable induction is to be made by a Court of law in arriving at a fixed sum."

14. Sub-section (2) read with sub-sec. (1) of Sec.23, leaves the matter of fixation of the amount of maintenance to the discretion of the Court while stressing that the position and status of the parties, reasonable wants of the claimant, the income and property of the claimant, and the number of persons whom the husband is bound to maintain, are among the factors and circumstances which must be taken into consideration by the Court.

15. In fixing the quantum of maintenance, it would be necessary and of primary importance to consider the over-all financial position of the husband. The words the position and status of the parties in sub-sec. (2) are wide enough to include the financial position of both the parties as a matter of vital consideration in the matter.

16. The learned trial judge, has, on a careful consideration of the evidence adduced by the parties and the report of the Commissioner, appointed by the Court, reached the conclusion that the net income of the husbands estate would be 400 bags of paddy. Having regard to the direction given by the High Court in the earlier judgment, the trial Judge, though he was of opinion that 100 bags per year would be a reasonable quantum of maintenance, felt bound to reduce the same to 75 bags. The defendant and the plaintiff both feel aggrieved by the estimate made by the trial Court and the amount of maintenance awarded to the plaintiff as well.

17. On a consideration of the data furnished by Ex. A-1, which was accepted to be a reliable document, by both the parties, the learned trial Judge has arrived at the conclusion that the total cultivated land belonging to the husband is Ac. 100-56 cents in Venkatanagaram village and Ac. 8-50 cents in Yandamuru village, aggregating to Ac. 109-06 cents in extent.

18. In estimating the net income on these lands, the evidence adduced by the parties could not be accepted in toto for the simple reason that while the defendant tried to minimise the income, there was an attempt on the part of the plaintiff and her witnesses to exaggerate the same. Confronted with the difficulty in accepting either version as true, the lower Court based its estimate of the net income partly on the estimate made by an Advocate who was appointed as Commissioner, and partly on the estimates made by the procurement officers. The procurement officers made an estimate of the crop for their own purposes. The commissioner was directed by the order of the lower Court to give notice - to the karnam and the Taluk Supply Officer to inform him beforehand when they would go to estimate the crop so that he could have the advantage of estimating the crop long with them; but it was represented to the Commissioner that the defendant was about to remove the crop and unless he proceeded to execute the warrant of commission entrusted to him immediately, there was the danger of the entire crop being cut away and no basis being left for the Commissioner to make an estimate. The Commissioner, who proceeded to the lands of the defendant on 3rd December, 1950, estimated the crop by cutting, the crop in an area of 2 square yards and weighing the paddy initially when it was not dried and not purified and again weighing the paddy on 10th December, 1950 after it was dried and was purified. He deducted half a bag towards wastage and deterioration, and estimated the yield of both the plots situated in the village of Venkatanagaram at 14 bags of paddy per acre. With regard to the Yandamuru lands, he estimated the crop at 15 bags of paddy per acre.

19. The main criticism against the estimate made by the Commissioner was that he took the yield in a very small extent of two square yards instead of at least in five cents as was done by the procurement officers. There was also the comment that he committed an error in following the method of weighing and calculating instead of measuring and calculating which is the method followed by the procurement officers. It was also rightly pointed out by the defendant that the estimate made by the Commissioner was far in excess of the estimated yield given by the plaintiffs mediators who went round the lands and whose estimate was only 10 bags of paddy. The learned trial Judge, therefore, concluded that the Commissioner should have made the estimate by taking the crop at least on five cents of land, instead of two square yards, and that he should have measured and calculate the yield as was done by the procurement officers. The lower Court then held that the estimate made by the procurement officers was a more reliable and safe guide and eventually estimated the crop in items 1 and 2 at seven bags per acre on the actual extent under cultivation; and with regard to item 3, determined the gross yield at twelve bags per acre.

20. We find that the lower Court had taken all the relevant and material circumstances into account in determining the yield, and that the conclusions reached by it are basically sound.

21. It is, no doubt, true that neither the plaintiff nor the defendant is satisfied with the determination of the estimate of the income made by the lower Court. It is argued by the learned counsel for the defendant that the fixation of the income by the lower Court was too generous.

We do not, however, think that there is any justification for this criticism. All the witnesses examined by the defendant tried to say that the lands are saline in nature; that they have a precarious source of water-supply, being tank-fed. They had gone to the extent of asserting, that the lands yield only once in 4 or 5 years. True it is, that these lands had been acquired by the defendants father on Darkhast but it is admitted by D.W.7 himself that the defendants father had spent more than Rs.40,000/- or Rs.50,000/- towards improving the lands and that the defendant was also repairing the lands. It is to be noted that the defendants father died 20 to 30 years ago i.e., between the years 1920 and 1930. If the defendants father had spent such a huge sum for improving the lands, it is impossible to believe the case of the defendant that the lands are yielding only once in 4 or 5 years or that their net yield, as estimated by the defendant is only 3 bags per acre. There was evidence before the lower Court on which the conclusion could safely be rested that the lands are being cultivated every year.

22. The lower Court has found that the defendant has to pay Government taxes and water rate on the entire extent of the lands but that the value of the hay, which was estimated by- the Commissioner at Rs.25/- per acre, is sufficient to meet the taxes and water cess. Here again, the lower Court has made a very reasonable allowance for the value of the hay and has set off its value towards the taxes and water cess. We are also of the view that the allowance, made by the trial Court of 3 3/4 bags of paddy per acre towards the entire expenses of cultivation and raising seedbeds, is eminently reasonable and proper. We are, therefore, in entire agreement with the estimate made by the lower Court that the net yield on the aggregate extent of 110 acres is 400 bags of paddy per annum.

23. The question then is as to whether the lower Court was right in awarding 75 bags out of the net yield, towards the maintenance of the plaintiff. As pointed out earlier, Sec.23 of the Hindu Adoptions and Maintenance Act, vests the Court with a wide discretion in the matter of fixing the quantum of maintenance. It is, no doubt, true that its discretion must be sound and reasonable and judicially exercised and cannot be arbitrary or capricious. The Court must be guided by the relevant provisions of the Act and have regard to its object. It is to be observed, however, that the fixation of the quantum of maintenance in a given case cannot be a matter of mathematical certainty.

24. The lower Court has taken ail the relevant circumstances including that 100 bags or a 1/4th of the total net yield of the defendants lands, would be a proper quantum of maintenance to be awarded to the plaintiff. This Court has given a direction that the quantum should be fixed at a less liberal rate inasmuch as the plaintiff had left her husband without due cause. This direction is in accordance with the general scheme of the Act and in particular, is in conformity with the criterion laid down in clause (c) of Sec.23(2) which provides that "if the claimant is living separately, whether the claimant is justified in doing so." The lower Court has deducted 25 bags of paddy per year on this score and here again we are satisfied that the learned Judge has exercised his discretion properly.

25. On a consideration of all the circumstances and the evidence adduced by the parties, we are in entire agreement with the conclusion reached by the lower Court that the proper quantum of maintenance to be awarded to the plaintiff is 75 bags of paddy per year. On this conclusion, it follows that both the appeals must be dismissed. Having regard to the circumstances of the case, we direct the parties to bear their costs in both the appeals.

Appeals dismissed.