Avadh Behari, J.
(1) This is an appeal by a divorced wife against the respondent who was married to her. The claim is for permanent alimony of Rs. 150.00. p.m. u/s 25 of the Hindu Marriage Act (the Act).
(2) These are the facts. The appellant Sheela was married to the respondent Tungal Singh on 17.6.70. In 1979 the wife brought a petition for divorce against the husband on the ground of desertion and cruelty. She was able to prove both. So the Adj granted a decree of divorce dissolving the marriage of the parties.
(3) Sheela made a claim for permanent alimony. This was negatived by the learned judge on two grounds. Firstly, the judge held held that the income of Singh was only Rs. 328.00. p.m. and he had to maintain himself and the two children of the marriage. She felt that the salary amount was hardly sufficient for the maintenance of the father and his two sons and thereforee did not award anything to Sheela. Secondly the judge held that Sheela was quite young and granting of permanent alimony would amount to depriving her of the chance of resettling in life. So on the ground that it was not a fit case for grant of permanent alimony, the learned judge refused to make an award in her favor. From this order dated 1.7.82 Sheela appeals to this court, [In para 4, S. 25 is reproduced].
(5) The learned judge found that Sheela has no income of her own. There is nothing for her maintenance and support. So she is entitled to permanent alimony and maintenance u/s 25(1). The two reasons given by the learned judge are not good grounds for refusing permanent alimony to Sheela. That the salary of Rs. 328.00. is insufficient for the maintenance of the father and his two sons, is not a ground which ought to be taken against Sheela. On this point Mr. Nayyar on behalf of Sheela has brought to my a
(6) In most cases the standard of living of one or both of the parties will have to suffer because there will be two families to support instead of one. When this occurs, the court clearly has to decide what the priorities are to be and where the inevitable loss should fall. The wife is the financially dependent spouse. She is potentially likely to suffer greater financial loss from the dissolution or annulment of the marriage than the husband. But her need cannot be denied. Having regard to all the circumstances of the case the court has to award a reasonable amount. The cases decided under the Act should not be followed slavishly, in the words of Scarman L.J. :
'IT would be unfortunate if the very flexible and wide-ranging powers conferred upon the court should be cut down or forced into this or that line of decisions by the courts.'
(Chamberlain v. Chamberlain (1974) 1 All E.R. 33
(7) It is of the essence of the discretionary situation that he court should preserve the utmost elasticity to deal with each case on its ows facts. The value of the reported decisions as precedents is not very great. They are decisions on the facts of the particular case before the adjudicator.
(8) It has been well said that these provisions form 'a code on the continental style, laying down many of the basic principles which the courts should apply, although not descending into any great detail as to how any individual case should be decided.' No hard and fast rule can be laid down. The ultimate evaluation of the specified factors is left to the adjudicator. The essence of the legislation is to secure flexibility to meet the justice of particular cases, and not rigidity, forcing particular cases to be fitted into some so called principles within which they do not easily lie. What is the right figure of the lump sum or periodical payment is essentially an empirical decision. When a marriage breaks up, there will thence-forward be two households instead of one. Often the sole breadwinner is the husband. He will have to provide out of his earnings for two households. On the statutory hypothesis it is an indefensible position to hold that the wife is not entitled to anything because the husband's income is meagre.
(9) What is a proper proportion of the husband's income to be given to the wife is a question to be determined in the light of all the circumstances of a particular case : the very flexible and wide ranging powers vested in the court make it possible to do justice, and these powers should not be cut down by case- law.
(10) A word of caution. On sections 24 and 25 of the Act there is a 'wagon-load of cases', to use a phrase of Lord Atkin (See Harris vs. Associated Portland Cement (1939) Ac 71). But they do not lay down any proposition of law. They are decisions on the particular facts of those cases. 'We ought to be beware of allowing tests or guides which have been suggested by the court in one set of circumstances or in one class of cases to be applied to other surroundings', and thus by degrees to turn that which is at bottom a question of fact into a proposition of law. If we allow this to happen we will be crushed under the weight of our own reports. (See Qualcast (Wolverhamion) Ltd. v. Haynes (1959) Ac 743 (per Lord Denning).
(11) Singh has remained absent in this court in spite of service. So I have no reason to disbelieve the averments of the wife made in this regard. The 2nd ground given by the learned judge that Sheela is quite young and granting of permanent alimony would mean depriving her of the chance of resettlement in life is not a good ground under the law. If the wife is young it does not mean that she should not be awarded pent. alimony. Only on remarriage she will forfeit her right. It is a general principle of the matrimonial legislation that, if a former spouse remarries, she (or he) must look to her new partner for financial provision, and not to the old one. The court cannot suggest to the wife that she should remarry and that she will not be awarded maintenance because she is very young. The law now encourages spouses to avoid bitterness after family break-down and to settle their money and property problems. An object of the modern law is to encourage each to put the past behind them and to begin a new life which is not overshadowed by the relationship which has broken down. (Milton vs. Milton (1979) Ac 593, per Lord Scarman).
(12) The primary consideration u/s 25 is to see whether the wife has anything for her support and maintenance. If not, she is entitled to lump sum or a periodical payment. The considerations which the Court will keep in view are specified in the section. The court has to have regard to the respondent's income and property, the income and property of the applicant, the conduct of the parties and other circumstances of the case. The sum to be rewarded to the applicant must be fair and reasonable. It has to be just in all the circumstances of the case having regard to the income of the parties, their means etc. A maintenance obligation has a different practical significance in a country such as Sweden, where most married women are employed and there are extensive welfare programmes, than in India.
(13) In my opinion the grounds given by the learned Judge in refusing pmt. alimony to the wife are not good grounds in law. Nor has Singh appeared in this court to contest the claim of Sheela to pmt. alimony.
(14) Having regard to all the circumstances of the case I think the right amount to award to the appellant Sheela in this case will be Rs. 100.00 p.m. (from 1.8.82). If there is any change in the circumstances, she can apply to the court u/s 25(2) for a variation of the order. The court is given the power to vary, modify or rescind any order made by it if there is a change in the circumstances of either party.