Shiv Dayal, J.
1. This is a first appeal under Section 28 of the Hindu Marriage Act, 1955. On a petition by the appellant under Sections 10(1) and 24 of the Act, the learned Additional District Judge, Shajapur has passed a decree for judicial separation but has disallowed the claim for maintenance. Aggrieved by the latter, this appeal has been preferred and the appellant claims Rs. 80/- per month for maintenance to be awarded against her husband, the respondent.
2. There is no appeal before me against the decree for judicial separation. Thus, the only questions for determination are (i) whether the appellant is entitled to maintenance and (ii) what should be the quantum.
3. Section 25 of the Hindu Marriage Act provides as follows:
'25(i). 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 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 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..............'
4. Since a decree for judicial separation has been passed and it stands, I have to see whether the first Court was right in disallowing maintenance to the appellant. Her case was that she was married to the respondent in December 1940 but for the last fourteen years, she had been deserted by thehusband. It was also alleged in the petition that thehusband had illicit intimacy with one Mst, Sushila,his elder brother's widow, who was living with himand that the appellant was illtreated and neglected.
She filed the petition under Sections 10 and 25 of the Hindu Marriage Act, 1955 in the end of November 1955. The defence was that the appellant went away to her father's place of her own accord; that she did not behave like a newly married bride in her husband's family; that she had a superiority complex in coming from a family which was better to do and that there was no case for judicial separation or for maintenance. While deciding Issue No. 3, the learned trial Judge came to the conclusion that the husband had deserted the wife. The trial Judge, however, found that the petitioner could not prove her allegation of an illicit connection between her husband and Sushila.
The reasons for not allowing maintenance in the judgment of the first court are (1) that the respondent has to maintain his retired father, has to educate his brother and has to maintain his widowed sister-in-law in a city like Lucknow where the cost of living is higher, and his income of Rs. 235/- per month is hardly sufficient and, therefore, the respondent has no means to maintain the appellant; and (2) that the appellant has been living separately for 14 years by herself and has also received some education and therefore can maintain herself.
5. Although the grant of maintenance is a discretionary matter, I have come to the conclusion that this is a fit case for interference because the above grounds for refusing it are neither sufficient nor reasonable. It has come in the statement of Manoharlal respondent, that his father receives Rs. 100/-per month by way of pension. He has also said that his younger brother gets Rs. 150/- per month including dearness allowance. Therefore, even proceeding on the assumption that the respondent draws only Rs. 235/- per month as has been done by the first Court, the total income of the family comes to Rs. 485/-. Now, it is not the sole responsibility of the respondent to maintain his widowed sister-in-law.
That responsibility is to be shared by his father and his brother. That apart, if the respondent has to maintain himself and a sister-in-law, it cannot be said that he cannot afford to spare any part of his income for the maintenance of his wife. The fact that the wife has been living apart for the last fourteen years and that she can earn for herself, are no grounds for disallowing maintenance. Such a reasoning would render the provision of law nugatory. It cannot be disputed that it is the primary duty of the husband to maintain his wife and that was recognized even in the ancient texts of Hindu Law-givers.
6. I have now to take into consideration (i) respondent's own income and other property, (ii) the income and other property of the appellant, and (iii) the conduct of the parties.
7. Manoharlal stated on oath on 3-12-1957, that his income was Rs. 235/- in the grade of Rs. 250/-. He must necessarily have got some increment and I assume his present income to be at least Rs. 240/- if not more. The appellant has not given any evidence to show that the income is higher than that. There is no evidence that the respondent has any other property.
8. The income of the appellant is nil. She has all along been a dependent on her father. There is no evidence that she has any property.
9. As regards the conduct of the parties, I was addressed at great length by the learned Counsel for both the sides. Each of them was anxious to throwthe responsibility on the other for the separation of the couple and Shri Saxena has strenuously contended that the respondent being always ready and willing to take his wife back, no maintenance should be allowed to her. The learned counsel for the respondent also urged that no case for desertion was made out by the appellant and therefore, having regard to the provisions of Section 18 of the Hindu Adoption and Maintenance Act (78 of 1956) the wife was not entitled to any maintenance if she lived separately from her husband. The argument is that under Section 18(2)(a) of (that Act it must be shown that the husband was guilty of desertion within the meaning of that provision and this the appellant had failed to prove.
As to this, it is sufficient to say, in the first instance that the provisions contained in Section 25 of the Hindu Marriage Act, 1955, are not controlled by Section 18 of the 1956 Act named above. Secondly, there is a clear finding of the first Court that the husband deserted the wife and it was on that ground alone that a decree for judicial separation was passed in favour of the appellant and against which there is no appeal before me. That finding is therefore, binding on the parties. Moreover, I find that the husband did not go to bring the wife even for the 'Gauna' ceremony (the first ceremony sometime after (the wedding when the husband brings the wife from her father's place to his own house).
She was brought by her father-in-law. Then again, there are letters Ex. P74, P/5 and P/6 which fully prove that in fact the respondent's father Hanumanprasad himself felt sorry for the unhappy situation and he felt miserable that it was beyond his power to get it settled. This is the ordinary meaning and implication of those letters. If anything was intended in those letters, Hanumanprasad should have been produced by the respondent as a witness. The appellant and her father both came in the witness-box and said that even after her going to her father's place in those circumstances, an effort was made that she might be taken back by the husband but in vain. Liladevi described in these words the response which was accorded by her husband:
^^lu~ 55 ds Dokj ds n'kgjs ij eSa esjs firkthvkSj esjs cguksbZ y[ku euksgjyky ds ;gka x;s FksA blfy;s x;s Fks fd esjs ?kjpydj vkil esa gh fuiVkjk gks tkos rks euksgjyky us esjs firk ds lkFk dbZ cqjhrjg ls is'k vk;s vkSj eq> ls dgk fd ;gka ls psys tkvks ugha rks 'kqV dj nqaxkeq>s rqEgkjh lqjr ls Hkh uQjr gSA ge yksx okfil pys vk;sA**
The respondent mentioned in his deposition that certain letters were exchanged between him and her, to show that there was no case of desertion. But he has not produced the letters which were addressed by her to show her conduct. Withholding these letters in these circumstances raises a presumption against him.
10. It was held in Khurshed v. Muncherji, AIR 1938 Bom 86, that the question of desertion cannot be decided by merely enquiring which party left the matrimonial home first. In Pulford v. Pulford, 1923 P 18 it was held that the husband may live in the place but make it impossible for his wife to live there and that state of things may be desertion of the wife. In the above Bombay case, it was further observed that what the Court has to consider in order to ascertain whether there has been desertionis to look at the conduct of both the parties towards each other.
11. When I am considering the conduct of the parties, I cannot help observing to the credit of the respondent that he has not attacked the chastity of his wife. In such cases there is generally an undesirable tendency of mud-slinging of all kinds but the respondent here seems to have been rightly advised not to do so.
12. On a careful perusal of the statements of the appellant and the respondent, I am satisfied that her statement regarding the fact that she was deserted by the husband is truthful. Manoharlal has clearly said in his cross-examination that in the present circumstances it is impossible that Liladevi should live with him.
13. The argument of Shri Saxena that the husband is even new prepared to take the wife back is devoid of force. Where a decree for judicial separation is granted to the wife on the ground of desertion by the husband, the fact that the husband made an offer to take her back during the proceeding or in appeal is no justification for reducing the amount of maintenance to the wife much less denying it totally.
14. For all these reasons, considered separately and collectively, I hold that the appellant is entitled to maintenance under Section 25 of the Hindu Marriage Act.
15. Now, coming to the question of quantum, Shri Lokras has relied upon B. Iswarayya v. Swar-nam Iswarayya, AIR 1930 Mad 154 (at p. 157), Faquiray Mian v. Baijnath, AIR 1931 Oudh 364 (which is on a Text of Yajnavalkya) and Glorious Jacob v. Mrs. Rosie Jacob, AIR 1939 Lah 404. In all these cases, one-third of the income of the husband was granted as maintenance in favour of the wife.
16. Truly speaking, the amount of maintenance is a question of fact and it depends upon the gathering together of all facts of the situation. Having regard to the facts I have discussed above as also the fact that they have been living apart for these long 14 years, a monthly maintenance of rupees forty will be just and proper.
17. This appeal is, therefore, partly allowed, the judgment and order passed by the Additional District Judge, Shajapur are modified and it is ordered that the respondent shall pay to the appellant for her life as follows:
1. From February 1959, Rupees forty per month, regularly by the tenth day of every month
2. And for the period from December 1955 to January 1959 (both months inclusive) at the rate of Rupees 40/- per month), by instalments of rupees 25/- per month beginning from February 1959.
18. Parties shall bear their own costs in thisCourt.