Cases referred:

1. Ekradeshwari Sahoba v. Homeshwar Singh. (1929) 56 Indian Appeals 182 = 31 Bom.L.R. 816.

2. Gumshidappa Mallappa v. Par-watewwa Shivappa. 38 Bom.L.R. 1293.

3. Raghunath Ambaidas v. Dwarkabai Jagannath. 43 Bom.L.R. 772 at 776.

4. Dattatraya Maruti Shanbhag v. Laxman Jattappa Shanbhag. 44 Bom.L.R. 527.

5. Kulbhushan v. Raj Kumari. A.I.R. 1971 S.C. 234.

6. Shantaram Gopahhet v. Hirabai. 1961 N.L.J. 476 = 63 Bom.L.R. 676.

7. Shantaram v. Malti. 1963 Mh.L.J. 649 = A.I.R. 1964 Bom.83.

8. Kadia v. Kadia. A.I.R 1961 Guj. 202.

9. Minarani v. Dasarath, A.I.R. 1963 Cal. 428.

10. Soumya-narayanan v Jayalakshimi Ammal. (1971; 1 M.L.J. 427.

11. Muniratnam v. Shantamma, A.I.R. 1971 Mysore 25.

12. Devki v. Purshotam, A.I.R. 1973 Paj. 2.

13. Chandrakant v. Nandana, L.P.A. No. 118 of 1973 decided on August 15 and 16, 1974 (Bom.).

14. Kirpal v. Rup Kuari, (1883) 11, Indian Appeals 37.

15. Louis Dreyfus v. Arunachala, (1931) 58 Indian Appeals 381.

16. S. Sankaranarayana v. Lakshmi Ammal, A.I.R. 1960 Mad. 294.

Advocates appeared:

M.V. Sali, for appellant.

M.L. Pendse, for respondent.

Per VAIDYA G.N., J.:- The above appeal is filed by the wife being dissatisfied with the decree passed by Kantawala J, as he then was, on September 23, 1970, in First Appeal No. 397 of 1969 which she had filed against the judgment and decree passed by the learned Civil Judge, Senior Division, at Ahmednagar, in Special Civil Suit No. 14 of 1965.

2. She had filed that suit against her husband on December 3, 1964 in the form of an application in forma pauperis; and later it was converted into and registered as Special Civil Suit No 14 of 1965. They were married in 1955. She was treated well for some time. But soon, differences developed between the husband and wife, as the husband felt that he was not treated with due respect at the time of her sisters marriage. Instigated by her mother-in-law, the husband thought of marrying again and began to ill-treat the wife. Her mother-in-law also ill-treated her. They were separated since 1960 when he beat her and reached her to her parents place in village Devlali-Pravra, taluka Rahuri of district Ahmednagar.

3. In 1961, the husband filed Hindu Marriage Petition No 56 of 1961 against her claiming divorce on the ground of alleged adultery. The petition was opposed by the wife. She contended that the allegation of adultery was false. The trial Court dismissed the petition. The decision was confirmed in an appeal by the husband. During the course of these proceedings, upon an application made by her, interim alimony at the rate of Rs. 50 per month was awarded under section 24 of the Hindu Marriage Act. An appeal by the husband against this order for interim alimony was dismissed by this Court by its decision dated November 29, 1963 in Appeal from Order No. 301 of 1963.

4. Thereafter, the wife filed the present proceedings in forma pauperis for permanent alimony under section 18 of the Hindu Adoptions and Maintenance Act, alleging that her husband was a very rich person having shares in sugar factory and ginning factory at Rahuri; the joint family of the husband owned in all 130 acres of land most of which was Bagayat; the husband had 4 oil engines and well water was taken from the engines ; crops like sugar, kardi, cotton and other Bagayat crops were taken every year on a large scale; and the husband had several bullocks and several agricultural implements. She averred in the plaint that the annual income of the husband would be Rs. 30,000 and claimed monthly maintenance at the rate of Rs. 200. She also claimed past arrears of maintenance from November 1960 when she was reached by her husband to her parents place after beating her. According to her the past arrears would come to about Rs 9,600 and after deducting Rs. 1,175 which was paid to her pursuant to the order fixing interim maintenance, she claimed the balance of the sum of Rs. 8,425 towards arrears of maintenance and future maintenance at the rate of Rs. 200 per month.

5. Her application in forma pauperis was opposed by the husband. But his objection was overruled and the suit came to be registered as stated above as Special Civil Suit No. 14 of 1965. The suit was stoutly resisted by the husband. He denied the allegations of cruelty. He repeated the allegations of immoral conduct of the wife which he had made earlier and which were disbelieved. He further alleged that the wife herself had deserted him; and hence she was not entitled to claim any maintenance from him. With reference to the schedules of moveable and immoveable properties annexed to the plaint as Schedules A and B, he merely stated that he would give the correct explanation as regards the properties at the proper time.

6. The parties led oral and documentary evidence. The wife examined herself and 3 witnesses. The evidence of those witnesses showed that the husband and his family were having dealings with sugar factories and held extensive agricultural lands and other properties. The husband relied entirely on his evidence and the evidence of one Baburao Sahadrao Gade, his relative. The wife also led documentary evidence primarily in the nature of extracts in respect of lands and shares standing in the names of the defendant, his father Rambhau and his brother Bhaskar.

7. The learned trial Judge, by his judgment and decree dated November 30, 1965 considered all this evidence and felt that the evidence led by the wife was not satisfactory and in the exercise of his discretion under section 23 of the Hindu Adoptions and Maintenance Act, 1956, fixed the maintenance at the rate of Rs. 50 per month and having regard to the fact that interim maintenance was fixed at the same rate, presumed that it must have been paid upto June 1, 1964 when the husbands petition was dismissed and passed a decree accordingly, creating a charge on the lands of the defendant as seen standing in the name of the defendant from the extracts produced in the case at Exs. 87 and 88, Survey Nos 58/2, 420 of Nandur and 87 of Rahuri.

8. The judgment and decree were challenged by the wife in the above First Appeal. Kantawala J., as he then was, who heard this appeal, by his judgment dated September 23, 1970, partly allowed the appeal by enhancing the separate maintenance at the rate of Rs. 125 per month from June 1, 1964, and creating a charge in respect of the said amount on the lands owned by the defendant as shown by the extracts, namely, his share in Survey No. 87 of Rahuri, Survey No. 420 of Nandur and Survey No. 58/2 also of Nandur, directing the plaintiff to pay the court-fees on the Memorandum of Appeal and on the plaint in the trial Court, and disallowing the claim of the plaintiff for arrears of maintenance prior to June 1, 1964.

9. Feeling aggrieved by the said judgment dated September 23, 1970, the wife has filed the above appeal as stated above. The appeal is on two grounds: Firstly, that she ought to have been awarded maintenance at the rate of Rs.200, per month, having regard to the extent of properties owned by the husband and the members of his family. Secondly, that arrears of maintenance ought to have been awarded to her at the rate fixed by the Court from November 1960 as claimed in the plaint.

10. So far as the first ground is concerned, we do not think that it is open to us in an appeal under clause 15 of the Letters Patent, to interfere with the rate which was fixed by. Kantawala J. after taking into consideration the submissions made on behalf of the wife relating to the income and properties of the husband. The learned Judge has observed in para 10 of the judgment:-

There is no precise evidence as regards the income which could be derived from those properties, which are shown to be owned by the defendant and the various suggestions were made to the defendant as regards the crop that can be cultivated in these lands. But he merely replied by saying that it is not true, even though he is the best man to give precise evidence as regards the nature of the income that can be derived from these properties. He has chosen not to do so either in the written statement or in his evidence. He has not even given precise information as regards the net income that he derived from these properties. When he was asked about the income of the family and his own income he merely says that it is not a fact that the total income of the family is about Rs. 20,000 to Rs. 30,000 a year; that it is not a fact that the income from the lands standing in his name would be Rs. 7,000 to Rs. 8,000 per year. It is, however, clear from the extracts of Record of Rights that these lands are put to cultivation; that in one of the lands there is a well; that a part of the land is used for sugarcane cultivation; and that in the remaining portions crops like Towar, Kardi or Chilli are grown. He has also sold cotton to the Sahakari Society and he is also a shareholder of the sugar factory. In the absence of precise evidence as regards the income of the defendant from this property, it will be legitimate to infer that it be Rs. 4,500 to Rs. 5,000 annually looking to the nature of cultivation carried on therein. Mr. Sali argued that at least one-third of the income should be given by way of maintenance to the wife, when it is found that the wife is entitled to stay separately from the husband and is entitled to separate maintenance. It will not be proper for the Court to reduce the amount of maintenance, to which the wife may be entitled on the ground that the grant of such maintenance would widen the breach between the two spouses and would defeat the very purpose of marriage as contemplated by the Hindu Marriage Act. It will be irrelevant also to take into account the factor that the husband will be entitled to exercise his conjugal rights, even though the wife is staying apart, when she has been allowed to live separately and separate maintenance has been allowed. Once, on evidence it is found that the wife is entitled to separate residence and maintenance, the quantum of the maintenance to be paid to the wife has to be determined in view of the provisions of section 23 (2) of the Act and, if one-third of the net income is to be awarded to the wife as claimed by Mr. Sali, wife will be entitled to Rs. 125 as and by way of maintenance.

The finding is really one of fact and based on appreciation of evidence.

11. Ordinarily, it is not the practice of this Court in an appeal under clause 15 of the Letters Patent to interfere with such finding of fact based on appreciation of evidence. It is true that we have to see whether the judgment of the single Judge is correct on the facts or law as presented before him or whether he had taken into account an irrelevant fact or failed to take into account a material fact or had applied any erroneous principle of law. But the only ground which Mr. Sali, the learned counsel for the wife, could urge before us was that the learned Judge under-estimated the income when he found that the net income of the defendant could be Rs. 4,500 to Rs. 5,000 annually.

12. We are unable to find any defect in the said finding, having regard to the evidence led by the wife in the case and the deposition of the husband, which no doubt shows that the husband tried to parry questions and suppress his income. Mr. Sali submitted that the conduct of the husband in not admitting or denying the existence of the properties mentioned in the plaint while filing his written statement and in parrying the questions and suppressing the income and avoiding giving details of his income in the course of his, deposition, must lead the Court to an inference that the claim made by the wife for maintenance at the rate of Rs. 200 per month was quite modest and reasonable in all the facts and circumstances of the case. It is true that the husband has not been honest and frank. That, however, does not relieve the burden of proof cast by the law on the wife to establish by proper and satisfactory evidence the income of the husband or give a liberty to the Court to accept the mere word of the wife with regard to the income.

13. Having regard to the vagueness of the evidence led by the wife, the Court is left in a difficult position; and we think that Kantawala J., did the best of it by estimating the income as between Rs 4,500 and Rs. 5,000 and in awarding maintenance at the rate of Rs 125 per month. No other point could be urged by Mr. Sali against the reasonings or findings of the learned Judge. We, therefore, concur with the reasonings and findings recorded by the learned Judge so far as the rate of maintenance is concerned.

14. The second ground, however, raises a somewhat difficult and important point of law with regard to the effect of an order awarding maintenance pen-dente lite under section 24 of the Hindu Marriage Act, 1955 in a suit like the present one instituted under section 18 of the Hindu Adoptions and Maintenance Act, 1956. Kantawala J. has observed in para 11 of his judgment: -

The question then arises for what period the wife will be entitled to the past arrears of maintenance. In the earlier proceedings adopted by the husband the interim alimony was fixed at the rate of Rs 50 per month. That order was not challenged by the wife. In view of the said order the wife continued to get interim alimony upto the date of the disposal of the appeal on June 1, 1964. It will be thereafter that the wife will be entitled to maintenance at the rate hereby fixed.

15. Mr. Sali, the learned counsel for the wife who had appeared for her before Kantawala J., submitted that he had contended before Kantawala J. that the existence of an order under section 24 of the Hindu Marriage Act cannot bind the parties or the Court in a suit instituted under section 18 of the Hindu Adoptions and Maintenance Act, 1956. Mr. Pendse, the learned counsel for the husband contended that as there is no discussion of these sections in the judgment of Kantawala J., it must be presumed that no such point was raised before him and hence Mr. Sali should not be allowed to raise this contention under clause 15 of the Letters Patent of this Court. He further submitted that such a point does not also appear to have been taken before the trial Court as the trial Court had not discussed at all the liability of the husband to pay arrears of maintenance from November 1960.

16. Now, it is true that the judgments do not refer to the powers of the Court under sections 24 and 25 of the Hindu Marriage Act and the effect of the order made under section 24 or even to the powers of the Court to award arrears of maintenance in a suit under section 18 of the Hindu Adoptions and Maintenance Act. It is also true that it is well settled that normally an appellant is not entitled in an appeal under clause 15 to be heard on points which had not been raised before the Judge from whose judgment the appeal is preferred. But it is also well settled that it is the duty of the Division Bench hearing an appeal under clause 15 to see whether the judgment of the learned Judge is arrived at in accordance with law.

17. Mr. Pendse fairly stated that he had not appeared before Kantawala J. and he is not in a position to contradict the statement made by Mr. Sali at the Bar that he had referred to the above sections and had contended in support of ground No. 6 in the Memorandum of Appeal in the First Appeal that the wife ought to have been awarded maintenance from the time that she was deserted, i.e. from the time the defendant neglected to maintain her, or for 4 years prior to the suit, i.e. since November 1960 and not merely from 17th November 1961. He also relied on grounds Nos. 17, 18 and 19 in the Memorandum of Appeal filed under the Letters Patent and contended that he would not have taken these grounds if he had not urged those points before Kantawala J. With great respect to Kantawala J, we think that he may not have referred to the arguments of Mr. Sali as stated by Mr. Sali because he thought, as he has stated in para 11 of his judgment quoted above, that once the interim alimony was fixed and was not challenged by the wife, she could claim maintenance only for the period after the period during which she was paid interim maintenance. There is nothing before us to doubt the statements made by Mr. Sali at the Bar. In any event, we do not find it proper or necessary to enter into this controversy because the question as to whether the wife was entitled to arrears of maintenance at a higher rate in view of the unchallenged order of interim maintenance at a lower rate under section 24 of the Hindu Marriage Act, raises a very important point of law which we think we ought to consider in the circumstances of this case.

18. The Hindu Law regarding the arrears of maintenance prior to the enactment of the Hindu Marriage Act appears to have been settled by the decision of the Privy Council in (Ekradeshwari Sahoba v. Homeshwar Singh)1, (1929) 56 Indian Appeals 182 = 31 Bom.L.R. 816. where Lord Shaw, speaking for the Privy Council, laid down -

A widows right to maintenance being in the nature of a continuing right, it is an error in law to fix the date of the decree as the starting point from which the maintenance allowance should run. The widow is, in any view, entitled to maintenance from the date of the institution of her suit Arrears prior to that date, if they truly exist, are also eligible. But a widow is not, ordinarily, entitled to arrears of maintenance from the date of husbands death and for the period that she resided in her husbands establishment. As a general rule, the maintenance allowance should start from the date when she left her late husbands house to reside elsewhere.

The decision was followed by this Court in (Gumshidappa Mallappa v. Par-watewwa Shivappa)2, 38 Bom.L.R. 1293, in (Raghunath Ambaidas v. Dwarkabai Jagannath)3, 43 Bom.L.R. 772 at 776 and in (Dattatraya Maruti Shanbhag v. Laxman Jattappa Shanbhag)4, 44 Bom.L.R. 527, where Broomfield and Sen JJ. laid down that the Courts dealing with claims for arrears of maintenance have a very large discretion to grant or withhold those arrears with special reference to the urgent need and necessities of the widow.

19. The Privy Council decision was approved by the Supreme Court in (Kulbhushan v. Raj Kumari)5, A.I.R. 1971 S.C. 234 where G.K. Mitter J., after referring to the Privy Council decision in Ekradesharis case, while considering the question of payment of arrears in a suit for maintenance filed on April 27, 1954 wherein a claim was made on behalf of the daughter on April 5, 1955, in the context of the provisions of section 23 of the Hindu Adoptions and Maintenance Act, at page 239, para 20, observed as follows:-

The question as to the date from which maintenance would be claimable was also mooted before the Judicial Committee in the above case. The High Court had turned down the widows claim to arrears of maintenance. Examining the several decisions cited before it the Board took the view that the widow was entitled to maintenance not from the date of the decree as found by the Courts below nor from the date of the suit in April 1922 but from 1st of January 1922 in view of the fact that it was towards the end of the year 1921 when the widow had made up her mind to stay on at her fathers place. In this case, as already noted, the claim to maintenance was first laid by a lawyers notice of 1951 but the suit was filed in 1954. The trial Court decreed maintenance from the date of the decree in 1957 but the High Court thought fit to allow maintenance from the date of the institution of the suit. No exception can be taken to the fixing of the date of institution of the suit as the terminus quo for the maintenance claimed by the respondent,

It seems to us, therefore, that it was well established before the enactment of the Hindu Marriage Act that the Courts had a large discretion in awarding arrears and the principles which were applied by the Privy Council with regard to the maintenance to the widow, would apply even to a wife during the lifetime of her husband.

20. We have now to see whether any change has been effected in this well-settled law by the enactment of the Hindu Marriage Act and the Hindu Adoptions and Maintenance Act. The relevant provisions of the Hindu Marriage Act are contained in sections 24 and 25 which run as follows: -

24. Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioners own income and the income of the respondent, it may seem to the Court to be reasonable.

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 sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondents 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.

(2) If the Court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (l), it may, at the instance of either party, vary, modify or rescind any such order in such manner as the Court may deem just.

(3) If the Court is satisfied that the party in whose favour an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that hi has had sexual intercourse with any woman outside wedlock, it shall rescind the order

21. The relevant sections of the Hindu Adoptions and Maintenance Act are sections 18, 23, 25, 27 and 28. Section 18 (1) lays down that:

Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.

sub-section (2) of that section deals with the conditions under which a wife is entitled to live separately from her husband without forfeiting her claim to maintenance and it is no longer in dispute that in the facts and circumstances of the present case, the wife fulfilled the condition as the husband had falsely charged her with immorality ; and this justified her in staying away from her husband. There were causes justifying her living separately, as held by the trial Court in this case within the meaning of sub-clause (g) of subsection (2) of section 18. No appeal or cross-objections were filed by the husband challenging the said finding. Under sub-section (3) of that section, a Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion. The trial Court in this case held that there were justifiable reasons for the wife to live separate from her husband ; and the defendant had failed to prove that the wife was leading an unchaste life. Those findings were not challenged before us.

22. It is thus clear that the wife in this case was entitled to be maintained by her husband during her lifetime under subsection (1) of section 18. Lifetime must mean her past, present and future life, subject to the conditions mentioned in section 18. section 18 of the Hindu Adoptions and Maintenance Act in our view, lays down the substantive law with regard to the right of maintenance conferred by the Act on the wife. It does not deal with the procedural law. It does not say that the only way of enforcing that right was through a suit. Section 23 of the Act deals with the discretion of the Court to determine whether any, and if so what, maintenance shall be awarded under the provisions of the Act and lays down the conditions subject to which a wife can claim a particular amount of maintenance in sub-section (2). Section 25 again declares the substantive right for alteration of the amount of maintenance subsequent to the passing of a decree or in an agreement between the parties, if there is a material change in the circumstances justifying such alteration. Section 27 lays down when the maintenance would be a charge on a property. Section 28 deals with the effect of transfer of property on the right to maintenance. There is nothing in Chapter III, except the word decree to be found in sections 25 and 27, to indicate that there must be necessarily a suit to enforce the right of maintenance conferred under section 18 of the Act. The right prima facie is a substantive right which can be the subject-matter of an agreement between the parties or any proceeding prescribed by law including a suit under the Civil Procedure Code as the claim for maintenance can be the subject-matter of a suit or an application under sections 24 or 25 of the Hindu-Marriage Act, 1955, just as it can also be a claim for maintenance under the Criminal Procedure Code.

23. In (Shantaram Gopahhet v. Hirabai)6, 1961 N.L.J. 476 = 63 Bom.L.R. 676, Patwardhan J. held that the existence of a decree is a condition precedent to the exercise of jurisdiction under section 25 (1) of the Hindu Marriage Act, 1955 and that if there was no decree, then this ancillary relief for permanent alimony and maintenance under section 25 (1) of the Act would not be available to the applicant. In that case, the question was, whether, when the husband had withdrawn his petition under section 10(1) (b) of the Hindu Marriage Act with the permission of the Court, the wife could make an application under section 25 of the Hindu Marriage Act asking for a provision for her maintenance and the maintenance of the children of herself and her husband. The view of Patwardhan J. was followed by S. M. Shah J. in (Shantaram v. Malti)7, 1963 Mh.L.J. 649 = A.I.R. 1964 Bom.83 and a similar view appears to have been taken in (Kadia v. Kadia)8, A.I.R 1961 Guj. 202 and (Minarani v. Dasarath)9, A.I.R. 1963 Cal. 428. In (Soumya-narayanan v Jayalakshimi Ammal)10, (1971; 1 Mh.L.J. 427, on the other hand, a contention that if the decree is annulling the marriage, no application under section 25 was maintain able, was over-ruled.

24. The word decree in section 25 of the Hindu Marriage Act can mean only a final order adjudicating upon the rights of the parties to a petition under the Hindu Marriage Act and it must, therefore, include a decree dismissing the petition which is appealable in the same way as the decree granting divorce or judicial separation and restitution of conjugal rights or annulment of the marriage. We are unable to find any reason for holding that the decree which is contemplated in section 25 is only a decree granting the relief asked for in a petition and not one dismissing a petition. This appears to be the basis of the above Madras decision and also the decision of the Mysore High Court in (Muniratnam v. Shantamma)11, A.I.R. 1971 Mysore 25 and of the Rajasthan High Court in (Devki v. Purshotam)12, A.I.R. 1973 Paj. 2. In some of the above decisions, the remedy under section 25 given to either of the parties for making an application for permanent alimony and maintenance is described as ancillary or incidental to the main petition. But, however it is described, there can be no doubt that section 25 provides a remedy by a simple application, in addition to other remedies which may be open to a wife such as the remedy under the Criminal Procedure Code or a remedy by way of a suit under the Civil Procedure Code. Section 25 must be, therefore, considered partly substantive and partly procedural, whether it is described as incidental or ancillary or supplementary or complementary to the main proceedings under the Hindu Marriage Act.

25. It has become necessary to refer to the above interpretations of section 25 because a view has been taken by a Division Bench of this Court in (Chandrakant v. Nandana)13, L.P.A. No. 118 of 1973 decided on August 15 and 16, 1974 (Bom.), that the provisions of section 18 of the Hindu Adoptions and Maintenance Act are inapplicable to a petition under section 25 of the Hindu Marriage Act and that the right of maintenance under section 25(1) being only ancillary and incidental, though in the discretion of the Court, could accrue at the earliest from the date of such decree, although the Division Bench held that a cause of action in respect of a substantive right of maintenance arises when the husband in breach of his statutory obligation fails or neglects to maintain her and the time for filing a suit in respect of arrears of maintenance would begin to run from the day such arrears became payable, in view of the provisions of Article 105 of the Indian Limitation Act, 1963.

26. It was observed: -

In the present case maintenance is claimed only under section 25 of Hindu Marriage Act and in the above view of the provisions of section 25 so far as the commencement of the period of payment is concerned, no question of supplementing the same by the provisions of the Hindu Maintenance Act could arise. As already seen the analogy of wifes claim for arrears of maintenance in a suit under the Hindu Maintenance Act is inapplicable to her claim under the Hindu Marriage Act as the latter right is to permanent maintenance ancillary and incidental to the passing of a decree.

In other words, the Division Bench held that although in a suit claiming arrears of maintenance, such arrears can be granted, in an application under section 25 of the Hindu Marriage Act, the earliest date from which the permanent alimony can be granted under section 25 was from the date of the decree in the main petition. In arriving at that conclusion, the Division Bench overruled the view taken by one of us (Vaidya J) that the Court had a discretion under section 25 to award arrears of maintenance from a date prior to the date of decree.

27. It is, however, not necessary for the purpose of this case to consider whether the view taken by the Division Bench about the scope of the powers of the Court under section 25 is correct, as the present Letters Patent Appeal arises from a suit for arrears of maintenance and future maintenance under section 18 of the Maintenance Act, as already stated above, although we must observe that we find it difficult to agree with the view taken by the Division Bench, and prima facie we are inclined to take the view that under section 25 the Court has power to order arrears of maintenance from a date prior to the passing of the decree and the time of the passing of the decree is only the earliest date when the remedy can be availed of under section 25. The Division Bench in Letters Patent Appeal No. 118 of 1973 took the view that so far as the suit for maintenance under section 18 was concerned, the Court had power to grant arrears of maintenance. We do not, however, deal with the conflict, which appears to have arisen regarding the maintainability of a petition under section 25 when the main petition is dismissed as that point does not arise in this case.

28. As already stated above, section 18 nowhere refers to a suit. On the contrary, it declares the substantive right of the wife in certain circumstances, to claim separate maintenance for her lifetime. Whether she files an application under section 25 or a suit under section 9 of the Civil Procedure Code, irrespective of whether the remedy under section 25 is treated as an ancillary or an incidental remedy, the substantive law laid down under section 18 will have to be considered by the Court. As the Division Bench has accepted the view that in a suit the arrears could be claimed, we do not wish to pronounce a final opinion on the other aspect of the question as to whether in an application under section 25 the arrears could be claimed. So far as the present appeal is concerned, we have no hesitation in coming to the conclusion that the right of the wife under section 18 cannot be held to be a right only for future maintenance. Lifetime would include the past. She can claim even past maintenance subject to the law of limitation. The above Division Bench decision has not taken any contrary view. On the contrary, the judgment proceeds on the footing that in a suit arrears of maintenance can be claimed.

29. On what appears to us to be the true interpretation of section 18, we must, therefore, hold that the wife in the present case was entitled to claim maintenance as a matter of law laid down under section 18 of the Hindu Adoptions and Maintenance Act from November 1960. But the question which still remains to be answered is as to whether this right is affected by the order of maintenance pendente lite passed under section 24 of the Hindu Marriage Act. Kantawala J. as he then was, with greatest respect, appears to have taken the view that as the order was not challenged by the wife till the dismissal of the husbands petition, she would be entitled to claim maintenance only from June 1, 1964. In other words, Kantawala J. also proceeded on the view that maintenance could be awarded to the wife from a date prior to her suit which in the present case was instituted by an application dated December 3, 1961 as stated above. We, however, find nothing in section 24 which disentitles the wife from claiming the maintenance prior to June I, 1964 till which time the husbands petition was pending, merely because an order was passed under section 24.

30. When the husbands petition was dismissed, prima facie and subject to what we have stated above regarding the conflicting view, both at the time of dismissal and afterwards, the wife had a remedy of making an application under section 25 of the Hindu Marriage Act on which much Court fee could have been saved, demanding maintenance; but she had also an additional remedy of filing a suit under section 9 of the Civil Procedure Code claiming maintenance under section 18 of the Maintenance Act. The only legal bar for denying her the right would be either on the basis of a plea of res judicata under section 11 or on general principles of res judicata. The order under section 24, being only an interim or interlocutory order, cannot be considered to be a final order which could operate as res judicata between the parties when the wife claimed permanent maintenance in later lawful proceedings at a rate higher than interim maintenance.

31. Mr. Pendse, the learned Counsel for the husband submitted that as an order under section 24 was executable as a decree under section 28 of the Hindu Marriage Act, it must be considered as final and conclusive between the parties. There is no merit in this contention. The order under section 24 is essentially an order pendente lite. It cannot be final and binding on the wife because the wife could file an application, be that at the time of dismissing the husbands petition, or thereafter, under section 25 claiming permanent alimony or file a substantive suit under section 9 paying heavier Court fees. It seems that in view of the above conflicting views regarding the maintainability of the application under section 25, there was some doubt as to whether an application under section 25 was maintainable when her husbands petition was dismissed. She was therefore, perhaps, advised to file this substantive suit in forma pauperis.

32. The nature of the right of maintenance is such that even in respect of a final decree passed for maintenance, the legislature has conferred a right on the parties to get it varied on account of change in the circumstances. It is a continuing right or recurring right which has to be exercised periodically. Naturally, it would be subject to changes in circumstances of the husband and wife. That is why in section 25 not only is a right conferred to make an application for permanent alimony under sub-section (1), but a further right is conferred under sub-section (2) for making an alteration in the order or modification in the order or even recession of the order. Similarly, in section 25 of the Maintenance Act, it is laid down:

The amount of maintenance, whether fixed by a decree of Court or by agreement, either before or after the commencement of this Act, may be altered subsequently if there is a material change in the circumstances justifying such alteration.

Having regard to this nature of the right, we do not think that the claim in substantive suit for arrears of maintenance at a higher rale than what was awarded pendente lite can be defeated merely because the interim maintenance fixed under section 24 of the Hindu Marriage Act was not challenged by the wife till the disposal of the husbands petition.

33. The argument of Mr. Pendse that because the interim order could be enforced, it is a final order, is contrary to the provisions of section 24 of the Hindu Marriage Act which empowers the Court in certain circumstances to order maintenance only sufficient for her support and the necessary expenses of the proceeding during the proceeding. Although the marginal head note refers to maintenance, it is followed by the words pendente lite. The body of the section itself does not refer to the word maintenance but only refers to an order being made having regard to the petitioners own income and the income of the respondent, it may seem to the Court to be reasonable when the Court is satisfied that the applicant has no independent income sufficient for her support and the necessary expenses of the proceeding. The emphasis is on the word support, the words during the proceeding and the word reasonable. These words clearly indicate that the legislature only wanted to provide for support of the wife during the proceeding and for expenses of the wife in respect of the proceeding.

34. In most cases, the interlocutory orders are passed on affidavits as was done in the present case. At the stage in which such orders are to be passed, the Court is not seized of the evidence and materials which can enable it to determine reasonable permanent alimony or maintenance. Like all other interlocutory orders, the order granting interim maintenance can at the highest bind the parties during the proceeding unless there is a change in circumstances. In Ram (Kirpal v. Rup Kuari)14, (1883) 11, Indian Appeals 37, the Privy Council said that upon general principles of law an interlocutory judgment in a suit is binding upon the parties in every proceeding in that suit. A similar view was taken in (Louis Dreyfus v. Arunachala)15, (1931) 58 Indian Appeals 381. But where, as here, we are concerned with the right of maintenance and the legislature itself has provided a remedy by way of separate application under section 25 of the Hindu Marriage Act, it cannot be said that even though there is more material or evidence to be led before the Court, the interim maintenance fixed under section 24 will bind the parties for all times to come even with regard to the period for which it was granted.

35. The fact that it was enforceable, does not make it a final order for the purposes of res judicata. The wife could make an application under section 25 when the husbands application was filed or thereafter. She can also file a suit within the time prescribed by the Limitation Act, showing that she was entitled to maintenance at a higher rate than what was awarded pendente lite by the Court dealing with the petition filed by her husband. Even during the pendency of the petition there may be circumstances which require the Court to vary or change the order for interim maintenance or expenses in view of the changed circumstances. In Devki v. Purshotam, it was held that section 24 of the Act vests a wide discretion in a Court in the matter of fixation of pendente lite maintenance and costs of the proceedings and that the discretion has to be exercised judicially.

36. It was further laid down, with respect rightly, in para. 4 at page 3:-

If there is no enabling provision in the Act for changing such an order by the Court, there is at the same time no disabling provision either and, therefore, the Court can in an appropriate case exercise its inherent powers to vary an order of maintenance provided there is a change in circumstances justifying variation of the order. If that were not so, it may lead to manifest injustice in some cases, for example, at the time of granting of maintenance the other spouse may be having a substantial income and after sometime if that income were to be lost by change of fortune or on account of some accidental causes then the continuance of the same maintenance may result in hardship to the other spouse who is to pay the maintenance. Therefore, I should think that in an appropriate case the Court should be able to exercise its inherent powers under section 151, Civil Procedure Code. 37. Moreover, in such interlocutory proceedings where matters are decided prima facie on the basis of affidavits without the entire evidence before the Court, the discretion of the Court is likely to be guided, if any, by the rule of thumb, by prima facie impressions about the income of the husband and the needs of the wife, in context of what the Court may consider to be the status of the parties. These first impressions may be, however, erroneous and must or may be modified as a result of the evidence led by the parties before it. We do not think therefore that the legislature intended the discretion vested in Court in dealing with a suit under the Civil Procedure Code for arrears of maintenance, to be fettered by such decisions arrived at pendente lite to enable the wife to support herself and to conduct the proceedings against her husband.

38. In (S. Sankaranarayana v. Lakshmi Ammal)16, A.I.R. 1960 Mad. 294. Ramaswami and Ananta-narayanan JJ. as they then were, have, with great respect, rightly pointed out, after an exhaustive discussion of case law, at page 297 in para. 15: -

.... It is undoubtedly true that the rate determined by the decree must prevail unless it is varied, but this does not necessarily imply that a Court has no power to vary that rate from a period anterior to the date of the suit brought for the variation. That would entirely depend upon the time from which the changed circumstances have prevailed, the reasonableness of the claim of the maintenance-holder to an enhanced allowance, the existence or absence of a specific demand and refusal, etc. It is one thing to state that the parties are governed by the rate until a variation is effected, and quite another to confine the power of Court to determine the period for which the right to enhanced maintenance should prevail.

This must be considered to be the only reasonable and proper way of interpreting section 24 of the Hindu Marriage Act in the context of the peculiar features of the right of maintenance conferred under section 25 of the Hindu Marriage Act and section 18 of the Maintenance Act read with section 25 of that Act, which makes the quantum of maintenance variable from time to time.

39. This must be so because the right to maintenance is one thing; the quantum of maintenance is another. Though the light to maintenance may remain the same, the quantum of maintenance which may be considered as reasonable and just will vary according to the circumstances from time to time. The Legislature has therefore provided remedies to both the spouses to get the orders regarding the quantum of maintenance varied as circumstances changed. We are therefore of the opinion that an order under section 24 of the Hindu Marriage Act cannot bar a claim for enhanced maintenance even for the period during which the interim order was in operation or for a period prior thereto having regard to the substantive law contained in section 18 of the Maintenance Act.

40. In view of what is stated above, there can be no doubt that the wife in the facts and circumstances of the present case was entitled to claim maintenance from November 1960, after deducting what she had received in pursuance of the order passed under section 24 of the Hindu Marriage Act.

41. Mr. Pendse, however, submitted that she could not recover more than 3 years arrears of maintenance having regard to Article 105 of the Limitation Act, 1963 which came into force on January 1, 1964, before the institution of the present proceedings by the wife. The argument must be rejected because under Article 105 of the Limitation Act of 1963 the period of limitation is 3 years and hence shorter than the period of limitation under Article 128 of the Limitation Act, 1908 which prescribed a period of 12 years from the time when the arrears became due for a suit for arrears of maintenance. Section 30 (a) of the new Limitation Act lays down that notwithstanding anything contained in the Act, any suit for which the period of limitation was shorter than the period of limitation prescribed by the Indian Limitation Act, 1908 may be instituted within a period of 7 years next after the commencement of this Act or within the period prescribed for such suit by the Indian Limitation Act, 1908, whichever period expired earlier. Thus the wife could have filed a suit before November 1967. The proviso to the section does not apply to this case and, therefore, there can be no doubt that the claim made by the plaintiff was not barred by the Limitation Act.

42. Mr. Sali asks for a charge in addition to the charge which has been decreed by Kantawala J. in respects of the costs. He was unable to point out any provision of law which empowers the Court to create a charge in respect of costs.

43. After deducting the amount received by her at the rate of Rs. 50 per month under the order passed under section 24 of the Hindu Marriage Act, therefore, the plaintiff wife is entitled to recover from the defendant husband from November 1960 to May 1964 a sum of Rs 5,375 less Rs. 2,150 i. e. Rs. 3,225 in addition to the amount of maintenance ordered to be paid to her by Kantawala J. We, therefore, allow the Letters Patent Appeal and substitute for the decree passed by Kantawala J. the following decree: -

44. The defendant shall pay to the plaintiff Rs. 3,225 and further separate maintenance at the rate of Rs. 125 per month from June 1, 1964 and the amount of maintenance hereby awarded shall be a charge on the lands owned by the defendant as shown by the extracts, namely his share in Survey No. 87 of Rahuri and Survey No. 420 of Nandur and Survey No. 58/2 also of Nandur. The defendant shall pay costs throughout.

45. A certificate shall be issued to the Collector of Ahmednagar for recovering the court-fees payable by the plaintiff and not paid by her from the defendant-husband.