C.A. Vaidialingam, J.
1. In this revision, Mr. T. Chandra-sekhara Menon, learned counsel for the petitioner, challenges the orders of the two courts, directing his client to pay' maintenance or what is called, in the orders, as starving allowance, to the respondent herein at Rs. 12-50 per month.
2. The quantum of the amount allowed as maintenance does not loom large in this C. R. P. and in fact when the two courts have concurrently found that if maintenance is to be granted to the respondent, then having due regard to the sources of income of the petitioner and the means, if any, available to the respondent, Rs. 12-50 has to be paid per month, obviously the petitioner cannot challenge that question alone, in this Court under Section 1.15 of the Code.
3. But the contention that has been taken is a larger one namely that under the circumstances, in which the petitioner asked for judicial separation, as against respondent and later on also obtained a divorce alleging and establishing unchastity on the part of the respondent, the latter has no right at all to be awarded any maintenance whatsoever, under Section 25 of the Hindu Marriage Act, 25 of 1955.
4. It is necessary to set out briefly the circumstances, under which, the claim for alimony was made by the respondent. The petitioner husband, there is no controversy, filed O. P. 3/58 under Sections 10 and 13 of Act 25 of 1955; and the District Court, Ernakulam granted judicial separation under Section 10 of the Act, by a decree dated 12-2-1960.
5. The petitioner alleging that after the decree in O. P. 3/58, the respondent, has not resumed cohabitation with the petitioner, for a space of 2 years required the dissolution of the marriage by a decree for divorce, and filed O. P. 5 of 1962 under Section 13 of the said Act for divorce.
6. In that application the respondent, no doubt, admitted the fact that there is a decree for judicial separation in O. P. 3/58; but nevertheless stated that she is still prepared to go and live with the petitioner. She also claimed to be entitled to be paid alimony under Section 25 of the said Act and for that purpose she filed I. A. 61/63. The respondent claimed alimony at the rate of Rs. 45/- per month on the ground that she is accustomed to a decent way of life and on the basis that the petitioner is getting not less than Rs. 100 as monthly income. It is only necessary to note that a decree for divorce has been passed in favour of the petitioner on the application, O. P. 5/62 filed by him. That aspect is no longer in controversy between the parties. But at the time of passing the decree of divorce, the Court after a consideration of the means of the parties, has directed the petitioner to pay the respondent a sum of Rs. 12.50 as alimony. That claim was recognised in favour of the respondent in the application filed by her as I. A. 61/63.
7. Apart from disputing the allegation of the respondent regarding the income derived by the petitioner, the claim of the respondent for getting alimony tinder Section 25 of the Act was contested by the petitioner on the ground that the respondent is not entitled to any alimony whatsoever in view of the fact that the judicial separation in O. P. 3/58 was allowed on the ground of immorality on the part of the wife.
8. That contention was no doubt controverted by the respondent on the ground that she has got a right to claim maintenance under Section 25 of the Act; and if the necessary circumstances are established, it will be open to the petitioner to have the order cancelled or modified in accordance with the provisions contained in Section 25.
9. The learned Subordinate Judge, who dealt with the matter in the first instance, adverts to the provisions of Section 25 of the Act. The respondent has clearly indicated that she has no intention of marrying again. Therefore the Court proceeds on the basis, tbat the alimony has to be fixed, dependent upon the income and possession of other properties and the conduct of parties. The learned Judge then considers the question as to whether the ground on which judicial separation was granted in O. P. 3/58, namely, unchastity, is a circumstance which will totally disentitle the respondent from claiming any alimony whatsoever.
10. In that context, the learned Subordinate Judge adverts to a decision of a learned single Judge of the Calcutta High Court in Amar Kanta Sen v. Sovana Sen, AIR 1960 Cal 438, wherein the learned Judge has expressed the view that even in eases, where marriage is dissolved on the ground of adultery of the wife, the latter will be entitled to a bare subsistence allowance or starving allowance from her husband. The learned Judge also, in so many words, states that he is not prepared to accept the extreme contention of the petitioner that as judicial separation, has been granted on the ground of unchastity the respondent should be left to the resources ot her immorality for her maintenance. On this line of reasoning, the learned Subordinate Judge ultimately, directed the petitioner, under Section 25 of the Act, to pay to the respondent a sum of Rs. 12.50 per month as maintenance so long as the respondent remains unmarried.
11. This order was challenged by the petitioner before the learned District Judge, Ernakulam in C. M. A. 38/63. There again, though the quantum also was challenged by the petitioner, ultimately the main attack fa against the order of the learned Subordinate Judge was that no alimony at all should have been directed to be paid under Section 25 of the Act, for the reason that adultery was the ground for granting judicial separation.
12. That aspect is considered by the learned District Judge, and after referring to the decision of the Calcutta High Court in (AIR 1960 Cal 438) relied upon by the learned Subordinate Judge, the District Court takes note of the fact there is another Division Bench Judgment of the same High Court reported in Sachindra Nath v. Banamala, AIR 1960 Cal 575, which latter decision has taken the view that under such circumstances, the prayer of the wife for alimony is to be refused.
13. The learned Judge is of the view that the Division Bench Judgment of the Calcutta High Court can be distinguished on the ground that the learned Judges of the High Court were dealing with a case where the wife was leading an adulterous life even when the application for divorce was 61ed. The learned Judge is of the view that in this case, inasmuch as that circumstance is not present and as only a stray instance of moral laxity has been proved against the wife and inasmuch M there is nothing to show that the respondent continues to lead an adulterous We, her request for being paid, starving allowance, at any rate, will nave to be allowed. No doubt the learned District Judge says that if and when the petitioner is able to establish that the respondent has lapsed into immorality again, he can get relief by moving the Court for the said purpose. Therefore both the Court have ultimately held that, notwithstanding that the allegation of adultery was the foundation of the claim made in O. P. 3/58 and that claim was also accepted by the Court for granting judicial separation, nevertheless even under those circumstances the respondent to entitled to be paid at any rate, a starving maintenance under Section 25 of the Act.
14. This view expressed by both the Courts is challenged by Mr. T. Chandrasekhara Menon, learned Counsel for the petitioner --husband.
15. Mr. K. Neelakanta Menon, learned counsel for the respondent-wife supports the orders of the subordinate Courts. Even going by the wording of Section 25 of the Act, jurisdiction is given to the Court, at the time of considering an application for grant of maintenance, to take into account the conduct of the parties, and in this case, both the Courts have adverted to the aspect that there has been a stray instance of lapse on the part of the respondent, but nevertheless that conduct by itself is, according to both the Courts, not sufficient to disable her from claiming maintenance.
16. Therefore the question arises as to whether in a case where a charge of adultery is the very foundation of a claim for asking judicial separation and that claim is accepted by a Court notwithstanding that finding, the respondent against whom that finding has been entered, can claim, as of right, to be awarded maintenance under Section 25 of the Act.
17. It is necessary now to refer to some of the provisions contained in the Hindu Marriage Act, 1955 -- Act 25/1955 as well as The Hindu Adoptions and Maintenance Act, 1956 -- Act 78/1956, The first Act namely 1955 Act, provides in Sec. 10, the various grounds, under which a party can make an application to the Court seeking judicial separation. The application in this case, I am informed, was filed on the basis of an allegation made under Clause (f) of Section 10(1) of this Act, on the ground that, after the solemnization of the marriage, the respondent herein, had sexual intercourse with a person, other than her husband. It may also be stated at this stage, that the Court which considered O. P. 3/58 filed by the petitioner has accepted this allegation to be true and has found that the respondent is guilty of the conduct mentioned in Clause (f) of Section 10(1) of this Act.
18. Section 13 deals with divorce; and Subsection (1) provides for an application being presented by either a husband or wife for dissolving a marriage by decree of divorce as well as the various grounds which can form the basis of that application. Here again it may be pointed out that O. P. 5/62 filed by the petitioner for granting a decree of divorce was under Section 13(1)(viii) of this Act to the effect that the respondent has not resumed cohabitation for a period of two years or upwards after the passing of a decree for judicial separation against that party which in this case was on 15-2-1960.
19. Section 25 of this Act deals with directions being given by the Court for payment of alimony and maintenance at the time of passing a decree under this Act. Sub-section (1) of Section 25 is as follows :--
'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 fife 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.'
It may be noted that in this sub-section, apart from various other matters to be taken into account, the Court is also to take into account 'the conduct of the parties', when a request is made for payment of alimony and maintenance.
Sub-section (2) provides for the Court varying, modifying or rescinding any order already passed under Sub-section (1) on being satisfied that there is a change in the circumstances of either party at any time after the order was passed under Sub-section (1).
But there is another special provision contained in Sub-section (3) making it obligatory on the Court to completely cancel an order passed under Sub-section (1), under the three circumstances mentioned in tbat sub-section, the Court has to cancel an order passed under Section 25(1). Those circumstances are :--
a) The party in whose favour maintenance is awarded has remarried;
b) If that party is the wife, that she ha* not remained chaste; and
c) If such party is the husband, that he ha had sexual intercourse with any woman outside wedlock. It is also necessary to note one of the circumstances, if established, when the Court has to completely revoke the order of maintenance, and that is the one indicated above by contingency No. (b) as I will call it. That is, if the party in whose favour an order for maintenance has been passed is the wife, and if she has not remained chaste, the order for maintenance shall be cancelled.
20. These are the provisions which aw to be noted in the Hindu Marriage Act of 1955. Therefore from what is stated above, it will be seen that adultery or leading an unchaste life on the part of the respondent to an application, can form the basis for making a request to the Court for judicial separation: see Section 10(1)(f). Similarly it will be seen that one of the grounds for asking for divorce under Section 13 is the fact the respondent is living in adultery -- vide Section 13(1)(i).
21. Again Sub-section (3) of Section 25, makes it mandatory on the part of the Court to revoke an order for maintenance passed under Sub-section (1) of Section 25, if the wife, who is the receipient of maintenance, has not remained chaste after the order has been passed. That is, even after a decree for judicial separation or divorce has been passed, if subsequent to the date of fixing the alimony under Sub-section (1) of Section 25 the wife does not lead a chaste life, the penalty, is the cancellation of the order of maintenance passed by the Court.
22. There is only one provision to be referred to in the Act 78/1956 and that is Section 18. Section 16 deals with the right of maintenance of wife, and Sub-section (1) provides that subject to the provisions of that section, a Hindu wife shall be entitled to be maintained by her husband during her life time. But Sub-section (2) also provides (on certain contingencies which entitle the Hindu wife, to live separately from her husband without for-feiting her claim to maintenance. Even here it will be seen that under Sub-section (3) of Section 18 it is provided that a Hindu wife shall not be entitled to separate residence and maintenance from her husband, if she is unchaste or changes her religion. Therefore it will be seen that even under this section, the same privilege that is granted to the wife contemplated under Sub-section (2) of Section 18 is not shown to the wife referred to in Sub-section (3) and that wife, if she is unchaste, will not be entitled to separate residence and maintenance. I am only referring to this aspect again to show that the statute emphasises the disability of a wife who is unchaste in respect of several of her rights otherwise guaranteed in law.
23. In my opinion, the orders of both the Courts overruling the objections of the petitioner regarding the right of the respondent to claim maintenance cannot be sustained. I have already referred to the various provisions contained in the Act of 1955, and those sections clearly contemplate that the wife during her matrimonial relationship must be absolutely faithful to the husband. It also provides for the husband moving the Court for judicial separation or divorce if he is able to establish that his wife has been unfaithful during the matrimonial relationship.
24. Then the question is, whether irrespective of the fact that an allegation of unchastity formed the ground for asking for judicial separation, and which was granted on that ground will nevertheless enable the wife, in this case, the respondent, to claim maintenance under Section 25 of the Act. I have already referred to the provisions contained in Subsection (3) of Section 25 wherein absolute power and jurisdiction is given to a Court to cancel an order for maintenance, if the wife becomes unchaste after the passing of the order. That itself in my view, gives an indication that the unchastity of the wife, if it had been established, will certainly be a very vital and crucial circumstance to be taken into account as 'the conduct of the parties', when the Court is called upon, under Section 25(1) to exercise jurisdiction, for the grant of alimony or maintenance. The 'conduct of the parties', referred to in Section 25(1) in my opinion, must necessarily refer to the conduct of the parties during the matrimonial life. In this case, it cannot be disputed that the very ground on which judicial separation was asked for and granted, is the unchastity of the respondent. If the contention of the learned counsel for the respondent that at the stage of considering a request under Section 25(1) the Court is to ignore this circumstance, and nevertheless direct the husband to pay maintenance, is to be accepted then what is the object, when the statute itself says that if later on the party is shown to be unfaithful that order can be cancelled? That is a circumstance which will entitle the husband to have the award of maintenance cancelled under Section 25(3) of the Act, is requested by the learned counsel for the respondent, to be ignored at the time when the application is considered under Section 25(1) of the Act.
25. In my opinion, if a subsequent conduct of the wife who has become unchaste can form the basis, for cancellation of an order passed under Section 25(1), a finding recorded during the judicial separation proceedings, regarding the unchastity of the wife must and should be taken into account even in the first instance, when an order is being passed under Section 25(1) of the Act. Otherwise it will lead, in my opinion, to a very incongruous situation namely, that it is only when a wife becomes unchaste after the award of maintenance she is disabled front continuing to receive that maintenance, whereas a wife who has been held guilty by the Court of unchastity even in the main proceedings, will nevertheless be entitled to get maintenance, in the first instance, under Section 25(1) of the Act.
26. In my opinion, the same matters, if they were prevalent at the earlier stage, must be taken into account, even in the first instance when the wife files an application under Section 25(1) of the Act. The reasoning of the lower Courts that in this case, it is only a stray act of unfaithfulness does not appeal to me at all, and the further reasoning of the Courts that what is being granted by the orders is a starving allowance for such a wife also does not appeal to me. Either a party is entitled to claim maintenance or alimony. If so, her claim must be considered on judicial grounds having regard to the various matters referred to in Section 25(1) of the Act. If there is a legal bar, in my opinion, there is no question of awarding any amount whatsoever, by whatever name it may be called--in this case by the first Court as starving allowance and by the appellate Court as subsistence allowance.
27. Mr. K. Neelakanta Menon, learned counsel for the respondent no doubt drew my attention to decisions regarding the interpretation to be placed on the expression 'is living in adultery' occurring in Section 13(1)(i) of the Hindu Marriage Act 1955. For instance, the learned counsel referred me to the decision of the Madhya Pradesh High Court in Gitabai v. Fattoo, AIR 1966 Madh Pra 130, wherein the learned Judges, if I may say so with respect, have quite correctly pointed out the distinction between the matters covered by Section 10(1)(f) and Section 13(1)(i) of the Hindu Marriage Act, 1955. In my opinion, it is not necessary to go into that aspect in this case, because admittedly the petitioner did not make any allegation, that the respondent is living in adultery and on that ground, as mentioned in Section 13(1)(i), filed the application for divorce namely O. P. 5/62.
28. The petitioner's averment was only to the effect that a judicial separation has been ordered in O. P. 3/58 accepting the case of the petitioner that the respondent has, after the solemnisation of the marriage, had sexual intercourse with the person mentioned in the order passed in O. P. 3/58 and thus bringing the case within Section 10(1)(f) of the Act. The petitioner under those circumstances, it he is able to establish the conditions mentioned in Clause (viii) of Section 18(1) is entitled to ask for divorce. I am only referring to this aspect because it will be unfair even to the respondent to attribute or much lass find any act of adultery after the date of the order in O. P. 3/58; and Mr. K. Neelakanta Menon is perfectly right in his contention that regarding me question as to whether his client was living in adultery, even after the date of the order in O. P. 3/58 and at the time when the Court was considering the grant of divorce and the grant of alimony under Section 25(1) of the Act, there was no occasion whatsoever to consider these aspects.
29. But the main contention of the petitioner in contesting the claim of the respondent for being awarded maintenance under Section 25(1) of the Act was that it was her conduct that led to the breaking up of the union and necessitated the petitioner filing an application under Section 10(1)(f) of the Act which in view of the circumstances if established enabled him to obtain a divorce under Section 13(1)(viii) of the Act.
30. But in my opinion, it was not necessary for the petitioner to make any such allegation nor for the Court to investigate those aspects in the Divorce Petition O. P. 5/62, because the ground on which the petitioner contests the claim of the respondent relates to the conduct of the respondent which led to the filing of the application by the petitioner under Section 10(1) of the Act.
31. In my opinion, the expression and the conduct of the parties' occurring in Section 25(1) of the Act clearly relates to the conduct of the parties during the matrimonial relationship, and inasmuch as there is a finding of the Court in O. P. 3/58 about the matters referred to in Section 10(1)(f) of the Act the respondent must be considered to be the party who led to the break-up of the marriage alliance. That circumstance is taken in by 'the conduct of the parties' which is a relevant factor to be adverted to by the Court in considering a claim under Section 25(1) of the Act.
32. I will briefly refer to the two decisions of the Calcutta High Court which have been adverted to by the learned District Judge in bis order. Before that, it may also be stated that based upon the English statute, there are certain wide observations contained in some of the commentaries in the text books dealing with this particular Act to the effect that the discretion vested in the Court under Section 25(1) is very wide and that in the exercise of that discretion a Court may make an order in favour of a wife even if a decree for judicial separation has been passed against her on the ground of adultery or cruelty or desertion on her part. It is not necessary to consider a case of cruelty or desertion. But the question a as to whether the Court has got that discretion even in cases where a separation has been ordered as against the wife on ground of adultery and whether go out of maintenance is justified by the provisions of the Act. Most of the commentaries refer to the provisions of the Indian Divorce Act or to the English Matrimonial Causes Act 1950 and as I will presently show, the provisions contained in the Indian Divorce Act, does not provide for the contingencies dealt with under Section 25(3) of the Hindu Marriage Act.
33. One of the decisions referred to by the learned District Judge is that of a single Judge of the Calcutta High Court Mr. Justice doubt in that decision, the learned Judge finds Datta reported in ATR 1960 Cal 438. No that the dissolution of marriage by way of divorce was granted on the ground of adultery of the wife; nevertheless the wife made an application for grant of maintenance under Section 25(1) of the Hindu Marriage Act. Her 'claim, so far as I could see, was based upon the fact that under Hindu Law she was entitled to be maintained by her husband, so long as she lived a decent life and therefore an obligation to maintain her was a personal and moral obligation of the husband.
34. That claim was opposed on behalf of the husband on the ground that when a divorce has been granted on the ground of wife, living in adultery she is not entitled to claim maintenance under Section 25(1). In considering this question, the learned Judge proceeds on the basis, that Section 25 follows more or less Section 37 of the Indian Divorce Act 1869 Act 4 of 1869; and the learned Judge notes only a difference that the Hindu Marriage Act imposes an obligation on the wife also to maintain her husband.
35. The learned Judge again proceeds on the basis that the Indian Divorce Act 1869 is itself modelled on the Matrimonial Causes Act 1857.
36. After adverting to some of the English decisions quoted by the learned Judge, the High Court ultimately comes to the conclusion that in English Law, under such circumstances, maintenance can be awarded. Then the learned Judge adverts to what was the position of an unchaste wife under the Hindu Law, and in that connection the learned Judge is of the view that under Hindu Law, an unchaste wife was entitled to a bare or starving allowance.
37. Proceeding on this basis that this was the state of the law governing Hindus prior to the Hindu Marriage Act 1955, and on the basis that Section 25 of the Hindu Marriage Act, more or less follows Section 37 of me Indian Divorce Act 1869, the learned Judge finally comes to the conclusion that on the basis of the English authorities referred to by him, the wife though unchaste, is entitled to a bare subsistence allowance or starving allowance. No doubt the learned Judge also states that if such a wife is earning a living and is not in a helpless position, her right to maintenance even of the bare subsistence disappears, because the learned Judge emphasises that the allowance is meant to prevent 'starvation'. On this basis, the learned Judge ultimately directed payment of alimony at the sum mentioned in his order.
38. No doubt prima fade this decision supports the claim of the respondent, though it may be seen that the decision arose in the ease of a divorce granted under Section 13(1)(i) of the Hindu Marriage Act 1955.
39. If I may say so with great respect, the reference to what the law was prior to the passing of the Hindu Marriage Act 1955, namely the Hindu Law, is not justified because of the provisions contained in Section 4 of the Hindu Marriage Act 1955. Section 4 categorically states that the Act, except as otherwise provided for overrides 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. Therefore it will be seen that so far as claims are made under the Act, rights of parties will have to be adjudicated upon the basis of the provisions contained in the statute itself.
40. Further if I may say so with respect, the view of the learned Judge that Section 25 of the Hindu Marriage Act follows closely Section 37 of the Indian Divorce Act 1869 is also open to question, because I have gone through the entire provisions of the Indian Divorce Act 1869; and the scheme of that Act is entirely different. And so far as I could see, there is no provision, corresponding to Sub-section (3) to Section 25 of the Hindu Marriage Act, in Section 37 of the Indian Divorce Act 1869. Nor is it necessary for me to elaborately consider the provisions contained in the English statutes, because it will be seen, even in England under common law, the position appears to be that if a wife has committed adultery she must be considered by that action to have forfeited her common law right to be maintained unless her adultery was condoned or connived at, and it is also recognised that it is only by virtue of the divorce legislation obtaining in England that such a wife is enabled to get maintenance at all and even in such cases the Court will consider whether she ought to have maintenance. That principle is established by the Court of Appeal in the decision reported in Clear v. Clear, 1958-2 All ER 353. The particular passage that I have referred to is to be found at page 357 of the Reports.
41. I am only referring to this aspect to show that there has been no elaborate consideration of the position in English Law in such cases by the learned Judge of the Calcutta High Court in (AIR 1960 Cal 438). The learned Judge ultimately is of the view that what is to be given under those circumstances is a starving allowance. I have already pointed out that a party has to establish a right, under Section 25(1) to be awarded maintenance. If that right is established, then the question will only be regarding the quantum of maintenance. If there is no such legal right, by whatever term one may call it, allowance, starving maintenance or similar expressions in my opinion, such award will be opposed to the provisions of the statute. Therefore, if I may say so with respect, I am not inclined to adopt the reasoning of the learned Judge in the decision reported in (AIR 1960 Cal 438).
42. As will be seen, even the Calcutta High Court has taken a different view in AIR 1960 Cal 575. There also the divorce was granted at the instance of the husband under Section 13(1)(i) of the Hindu Marriage Act 1955. In fact, the person with whom the wife was stated to be living an adulterous life was the co-respondent in that application. The Court accepted the allegations made against the wife and ultimately granted divorce. The wife made an application for the grant of maintenance under Section 25(1) of the Hindu Marriage Act. That claim was opposed by the husband on the ground that inasmuch as the wife was bound by the Court, to be leading an adulterous life, she is not entitled to any maintenance at all. The learned Judges, Mr. Justice Guha and Mr. Justice Banerjee are of the opinion that there is great deal of substance in the contention advanced on behalf of the husband. After referring to Section 25 of the Hindu Marriage Act, the learned Judges express the view that Sub-section (2) of Section 25 no doubt prima facie does not place any such limitation as urged on behalf of the husband. But the learned Judges emphasise that Sub-section (3) of Section 25 clearly gives an indication supporting the contention of the husband. The learned Judges, after reference to the provisions contained in Sub-section (3) of Section 18 of the Hindu Adoptions and Maintenance Act, 1956, Act 78/56, ultimately observed that unchastiy on the part of a woman, as well as sexual intercourse of a man with a woman outside wedlock arc sins against the ethics of matrimonial morality in this country. The learned judges ultimately observed that in exercise of judicial discretion, expressly vested in Courts of law under Section 25(1) of the Hindu Marriage Act, a Judge should, unless there he very special grounds, leave a wife divorced on the ground of proved unchastity or adultery, to the resources of her immorality and deny her the lawful means of support, by passing a decree for maintenance in her favour. Ultimately the learned Judges set aside the order of the lower Court granting maintenance in favour of the wife. No doubt, this decision has been taken note of by the learned District Judge; but the learned District Judge is of the view that this decision itself recognises a discretion in a Court to award maintenance even under such circumstances, and that in that particular decision, inasmuch as the wife was living in adultery with the correspondent even at the time when the application for divorce was made, the grant of maintenance was refused as absolutely unjustified. It is the view of the learned District Judge that such circumstances are not present in this case.
43. I am not inclined to accept the distinction made by the learned District Judge, regarding the principles laid down by the Calcutta High Court in the decision just now referred to. The latter decision will clearly show that the earlier decision of Mr. Justice Guha, though not specifically referred to, has not found favour at the hands of the Calcutta High Court itself. On the other hand, the Calcutta High Court has taken the view that in considering a claim under Section 25(1) of the Hindu Marriage Act, the unchastity of the wife is a very relevant matter to be taken into account for purposes of considering her claim. Even here, if I may say so with respect, the emphasis that is laid by the statute regarding the utmost fidelity as between the two spouses during the matrimonial alliance has not been given as much importance by the Calcutta decision as is borne out by the various provisions of the statute referred to above. At any rate, the learned Judges are positive that there is a discretion in the Court and that discretion ought to be exercised against a person whose conduct is reproachable.
44. Even considering the question from that point of view viz., that the Courts have got a discretion, the orders of the two Courts cannot be sustained because both the Courts proceed on the basis that a mere stray act of lapse, on the basis of which no doubt the petitioner asked for judicial separation and obtained it, is not such a vital circumstance to be taken into account, at the time of passing an order under Section 25(1) of the Act. From this line of reasoning adopted by the two courts, it is clear that they have not exercised the discretion judicially.
45. That the position in English law is entirely different, is also recognised by the decision of the Allahabad High Court in W. E. Me Gowan v. John George Me Gowan, ILR 38 All 688: (AIR 1917 All 180).
46. Therefore to sum up, I have already indicated that a right is given to the husband to invoke the 'jurisdiction of the court under Section 10(1)(f) and ask for judicial separation, if he is able to establish that his wife had sexual intercourse with another person. Again Section 13(1)(i) gives a similar right for asking for a divorce if the wife is living in adultery. Section 23(1)(b) makes it obligatory on the part of the court to take into account the fact that the petitioner before it, has not in any manner been accessory to or connived at or condoned the act or acts complained of, when judicial separation is asked for under Section 10(1)(f) or divorce is asked for under Section 13(1)(i) of the Act.
47. Section 25 has already been referred to by me; and it emphasises 'the conduct of the parties', which I have already indicated must mean 'the conduct of the parties' during their matrimonial life and court must have due regard to that factor. Sub-section (3) makes it obligatory on the part of the court to completely cancel an order for maintenance made under Section 25(1), if it is established that the person, who receives the maintenance, if she is the wife, 'has not remained chaste.' I have also referred to the provisions contained in sub-section (3) of Section 18 of Act 78/1955. The provisions referred to in the Hindu Marriage Act of 1955 in my opinion, places considerable emphasis on the wife being chaste not only during the subsistence of the matrimonial relationship, but also after the decree, so as to make her eligible to continue to get the maintenance. If the statute insists, as it does in Section 25(3) that notwithstanding the decree for judicial separation passed, the woman must remain chaste in order to get the maintenance continuously, in my opinion it is only reasonable to expect, having due regard to the scheme of the statute, that the same conduct is to be insisted upon during the period when the matrimonial alliance subsists and at the time when maintenance is being considered under Section 25(1). If the circumstances of the woman becoming unchaste subsequently, after the parties are living separately, should be taken into account, as provided for under Section 25(3) for cancellation of an order of maintenance, in my opinion, it is absolutely impossible to accept the contention of the learned counsel for the respondent that unfaithful conduct, which formed the basis for granting judicial separation, under Section 10(1)(f) of the Act by the court, is to be ignored for the purpose of Section 25(1).
48. In fact, I am prepared to hold that if a decree for judicial separation has been passed, as in this case, in favour of the husband on the basis of a finding recorded as against a wife under Section 10(1)(f) of the Act, that wife will not be entitled to claim any maintenance under Section 25(1). Section 25(1) is a general provision dealing with provision being made for permanent alimony and maintenance at the time of passing a decree. The decree passed may be one of judicial separation or of divorce and that may be granted on any of the grounds mentioned in Section 10(1) or Section 13; it may have been granted on grounds other than those mentioned in Section 10(1)(f) or Section 13(1)(i) of the Act If so, in such cases, the question of unchastity of the wife does not come into the picture when a claim is considered under Section 25(1). Section 25(1) in my opinion, contemplated the case of a claim of wife who is chaste at that time and who has been chaste during the matrimonial relationship. This view finds support from the expression 'if such party is the wife, that she has not remained chaste' occurring in Section 25(3). Section 25(3) proceeds on the basis that the wife was chaste when the order under Section 25(1) was passed, but has not remained chaste after the date of the order under Section 25(1). If the wife was found guilty of the act referred to in Section 10(1)(f), as in this case, that means she was not chaste even at the time, she makes a claim under Section 25(1). There is no question of such a wife 'not remaining chaste' after the date of an order under Section 25(1), because she is already unchaste. If she was already unchaste, there is no question of her becoming unchaste for a second time for the purpose of Section 25(3). Therefore in my opinion, the respondent in this case, was not entitled to make any claim for permanent alimony and maintenance under Section 25(1) of the Act
49. I am well aware of the contention of the learned counsel for the respondent that there has been no allegation by the petitioner in O. P. 5/62, nor any investigation by the court about his client being unchaste after the passing of the order in O. P. 3/58. I have already indicated that that circumstance in any manner does not advance the case of the respondent.
50. Therefore to conclude, the brushing aside by the two courts, the contention of the petitioner on the ground that it is only a stray act of lapse that the respondent has been found guilty of and what is allowed is bare subsistence allowance or starving allowance and in that view, decreeing the claim of the respondent, cannot be sustained.
51. The result is, the orders of both the courts will stand set aside to the extent to which they have awarded maintenance to the respondent, under Section 25(1) of the Act. The decree for divorce passed by both the courts will stand; but I. A. 61/1963, Sub-Court, Erna-kulam filed by the Respondent will stand dismissed and this C. R. P. allowed to the extent indicated above. Parties will bear their own costs throughout.