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Kaithakulangara Kunhikannan Vs. Nellatham Veettil Malu - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKerala High Court
Decided On
Case NumberA.S. No. 528 of 1966
Judge
Reported inAIR1973Ker273
ActsHindu Marriage Act, 1955 - Sections 10, 25 and 25(1); Hindu Adoptions and Maintenance Act, 1956 - Sections 18 and 23
AppellantKaithakulangara Kunhikannan
RespondentNellatham Veettil Malu
Appellant Advocate T.C. Karunakaran,; P.K. Shamsuddin,; V.M. Kurien and
Respondent Advocate T.C. Mohandas and; P.K. Suresh, Advs.
DispositionAppeal dismissed
Cases ReferredBellenden v. Sattorthwaite
Excerpt:
family - maintenance - sections 10 and 25 of hindu marriage act, 1955 - jurisdiction of court to award maintenance to wife while ordering judicial separation on account of her adultery - discretion vested in court to decide order for maintenance and its quantum - court has jurisdiction to award maintenance in cases of order for judicial separation because of act of adultery. - - 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 he has had sexual intercourse wth any woman outside wedlock, it shall rescind the order. in the former case it was found on a petition under section 13(1) of the hindu marriage act that there was..........iyer, j.1. the appeal arises out of a petition by a hindu husband under section 10 of the hindu marriage act against his hindu wife -- the first respondent in the petition -- for judicial separation. the ground of the petition is that on the 21st of july, 1963 the first respondent committed adultery with the second respondent impleaded in the petition. judicial separation was granted by the learned judge holding that the first respondent has been guilty of adultery with the second respondent on 21st of july, 1963. along with the order allowing judicial separation the court below directed the petitioner to pay maintenance to the first respondent at the rate of rs. 25/- per mensem under section 25 of the hindu marriage act. the learned judge decreed maintenance to the first.....
Judgment:

Krishnamoorthy Iyer, J.

1. The appeal arises out of a petition by a Hindu husband under Section 10 of the Hindu Marriage Act against his Hindu wife -- the first respondent in the petition -- for judicial separation. The ground of the petition is that on the 21st of July, 1963 the first respondent committed adultery with the second respondent impleaded in the petition. Judicial separation was granted by the learned Judge holding that the first respondent has been guilty of adultery with the second respondent on 21st of July, 1963. Along with the order allowing judicial separation the court below directed the petitioner to pay maintenance to the first respondent at the rate of Rs. 25/- per mensem under Section 25 of the Hindu Marriage Act. The learned Judge decreed maintenance to the first respondent on the following reasoning:

'It has been held that in the case of an unchaste wife whose marriage has been dissolved on the ground of her living in adultery bare maintenance allowance or starving allowance alone was permissible and the allowance under the section was to prevent starvation and not claimable as a matter of absolute right irrespective of the conduct of the claimant--vide page 1064 Hindu Law by Raghavachari, 5th edition. A judicial separation has been decreed in this case on the ground of adultery. Therefore the wife is entitled only to bare maintenance allowance. I think considering the financial position of the husband and the needs of the parties a monthly allowance of Rs. 25/- would constitute such an allowance and in view of the outrageous conduct of the wife which has provided the ground for the order of judicial separation I would grant it only from this date payable monthly.'

The appeal is by the petitioner against the order of the court below allowing maintenance to the respondent. The respondent has filed a memorandum of cross-objection for enhancement of the amount decreed by the court below. The order srantine judicial separation has become final as there is no appeal by the respondent.

2. The plea of the appellant is that since judicial separation under Section 10 of the Hindu Marriase Act has been granted on the ground of adultery the respondent is not entitled to maintenance under Section 25 of the Hindu Marriage Act. An extreme position was taken that in such cases a court has no jurisdiction under Section 25 of the Hindu Marriage Act to decree maintenance. Apart from Section 25(3) of the Hindu Marriage Act learned counsel for the appellant relied on the decision in Raia Gopalan v. Rajamma. 1966 Ker LT 891 = (AIR 1967 Ker 181) to support his contention. Section 25(3) of the Hindu Marriage Act reads:

'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 he has had sexual intercourse wth any woman outside wedlock, it shall rescind the order.'

Counsel for the appellant contended that when unchastity on the part of a wife subseauent to an order under Section 25(1) of the Hindu Marriage Act is a ground for its cancellation the legislature would not have intended grant of maintenance to her when she was guilty of adultery before the filing of the petition for judicial separation or for divorce.

Section 25(1) of the Hindu Marriage Act reads:

'Anv 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 respondent's own income and other property, if any, the income and other pro-perty 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.'

The above provision does not affect the jurisdiction of the court to grant maintenance depending on the grounds decreeing judicial separation or for divorce. Section 25(1) of the Hindu Marriage Act, no doubt, confers a discretion in the Court to award maintenance. It is one thing to say that a finding that a wife is guilty of adultery for the purpose of an order for judicial separation under Section 10 or that she was living in adulterv for the purpose of an order of divorce under Sec-ton 13 of the Hindu Marriage Act will deprive the Court of its jurisdiction to award maintenance and it is a different thing to say that in fixing the quantum of maintenance under Section 25 of the Hindu Marriage Act the Court should take into consideration the conduct of the wife as found in the order allowing judicial separation or granting divorce.

3. In 1966 Ker LT 891 = (AIR 1967 Ker 181) Vaidialingam, J. has followed a bench decision of the Calcutta High Court in Sachindra Nath v. Banamala AIR 1960 Cal 575, and has refused to follow the decision of a single Judge of the same High Court in Amar Kanta v. Soyana. AIR 1960 Cal 438.

In Sachindra Nath v. Banamala, AIR 1960 Cal 575, the decision in Amar Kanta v. Sovana AIR 1960 Cal 438, has not been referred to. In the former case it was found on a Petition under Section 13(1) of the Hindu Marriage Act that there was reliable evidence to show that the wife was living in adultery with the co-respon-dent even at the time when the case was being heard by the District Judge. In those circumstances, the learned Judges of the Calcutta High Court said:

'Unchastity on the part of a woman (and also sexual intercourse by a man with a woman outside wedlock) are sins against the ethics of matrimonial moralitv in this country, Moral law, it is true, is not the positive Civil law of a country, but there are many instances where law and morality meet. In our opinion, such a meeting place of law and moralitv is Section 25 of the Hindu Marriage Act, or for the matter of that Section 18 of the Hindu Adoption and Maintenance Act. In the exercise of judicial discretion, expressly vested in Courts of Law under Section 25(1) of the Hindu Marriage Act, a Judge should, unless there be very special grounds, leave a wife divorced on the ground of Droved 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.'

The view that in the absence of very special grounds the courts should leave a wife to the resources of her immorality is not justified by the wording of the Section. The above observations were made in a case where the wife was persisting in living in adultery even when the case was being heard by the District Judge. The observations made by the Judges of the Calcutta High Court have to be understood in the light of the facts in the case. They cannot be understood as meaning that the court has no jurisdiction or its jurisdiction is in any way curtailed in awarding maintenance in cases of proved adultery.

4. In AIR 1960 Cal 438, there was a dissolution of the marriage on the ground that the wife had been living in adultery, Datta J. dealing with Section 25 of the Hindu Marriage Act pointed out:

'In my opinion on the authorities referred to she is entitled to a bare subsistence allowance or starving allowance. When she is earning a living and is not in helpless position her right to maintenance, even of the bare subsistence disappears for the allowance is meant to pre-vent 'starvation' '

In 1966 Ker LT 891 = (AIR 1967 Ker 181) Vaidialingam, J. posed the question in the following manner:

'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'

The learned Judge answered the above question thus:

'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 Setton 25 (1), a finding recorded during the iudicial separation proceedings regarding the unchastitv 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 from continuing to receive that maintenance, whereas a wife who has been held puiltv by the court of unchastity even in the main proceedings, will nevertheless be entitled to act maintenance, in the first instance under Section 25(1) of the Act.'

Again at Page 902 the learned Judge observed:

'Section 25(1) in my opinion, contemplates 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 alreadv unchaste. If she was alreadv 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.'

If Vaidialinaam J. intended to hold that there is a total lack of jurisdiction in a Court to grant maintenance when iudicial separation is granted on the ground of sexual intercourse after the solemnisation of thp marriaae with any person other than his or her spouse or when divorce has been granted on the ground that the wife or husband is living in adultery with great respect we cannot agree.

5. An order for judicial separation under Section 10 of the Hindu Marriage Act on any ground including that mentioned in Section 10(1)(f) of the Act does not put to an end to the marriage. The relationship of husband and wife is still subsisting and the effect of an order under Section 10 of the Hindu Marriage Act is only to permit the parties to the marriage to live apart and it shall no longer be obligatory for either party to cohabit with the other. This is clear from Section 10(2) of the Act which reads:

'Where a decree for judicial separa-tion has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it iust and reasonable to do so.'

An order for judicial separation does not therefore dissolve the marriage tie between the parties. It affords an opportunity to the parties to reconcile their differences and come together. If there is no reconciliation the parties are enabled under Section 13(IA) of the Hindu Marriage Act to get an order dissolving the marriage. Whatever may be the impact of an order of dissolution under Section 13(1)(i) on Section 25 of the Hindu Marriage Act it cannot be contended that because of an order for iudicial separation based on Section 10(1)(f) of the Hindu Marriage Act the iurisdiction of a court to exercise its discretion under Section 25 of the Hindu Marriage Act is taken awav.

6. The expression 'conduct of parties' in Section 25 is not intended to take away the jurisdiction of the court absolutely in the matter of awarding maintenance under the provision. In AIR 1960 Cal 575. the learned Judges only said that it is the duty of the court when it exercises its discretion under Section 25 of the Hindu Marriage Act to mould the relief taking into account the conduct of the parties. It is unnecessary for us to repeat that the expression 'living in adultery' in Section 13(1)(i) of the Hindu Marriage Act has been interpreted to exclude any stray act of infidelity to the marriage bond. Such act does not amount to living in adultery within the meaning of the Section. We are only emphasising this for the purpose of showing that Section 25 of the Hindu Marriaae Act is not intended as a punitive measure but to reform people against whom an order for judicial separation or divorce has been passed on the ground mentioned in Sections 10(1)(f) and 13(1)(i) of the Hindu Marriage Act.

7. The state of law regarding maintenance of a Hindu wife before the pass-ing of the Hindu Marriage Act is stated in Mulla's Hindu Law. 13th edition, at page 547, paragraph 556 as follows:

'A wife, who leaves her home for purposes of adultery, and persists in following a vicious course of life, forfeits her right to maintenance, even though it is secured by a decree. But it would seem that if she completely renounces her immoral course of conduct, her husband is liable to furnish her with a 'bare' (or what is also called 'starving') maintenance, that is, food and raiment iust sufficient to support her life.'

Section 25 of the Hindu Marriage Act is merely a restatement of the Hindu Law that applied to the parties prior to the Hindu Marriage Act. We do not think that appellant's counsel can gain any support from Section 18(3) of the Hindu Adoptions and Maintenance Act, 1956 to which reference was made in thp course of the argument. Section 18 of the Hindu Adoptions and Maintenance Act, 1956 deals with the right of a Hindu wife to claim separate residence and maintenance from her husband. Section 18(3) reads:

'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.'

8. In view of the above provision, it was contended that when under the Hindu Adoptions and Maintenance Act. a Hindu wife is disqualified from claiming maintenance from her husband if she is unchaste, the legislature could not have intended by Section 25 of the Hindu Marriage Act to benefit such a person. The argument is no doubt, attractive, but if examined closely it is devoid of substance. What is contemplated in Section 18(3) of the Hindu Adoptions and Maintenance Act is the right of a Hindu wife to separate residence and maintenance from her husband. Section 23 of the said Act deals with the quantum of maintenance which a Hindu wife can claim. The residence and maintenance envisaged in Sections 18 and 23 of the Hindu Adoptions and Maintenance Act are quite different from the maintenance under Section 25 of the Hindu Marriage Act. We can conceive of cases where an order for judicial separation was the result of single act of infidelity on the part of the wife. Thereafter there was nothing against her conduct. Is it possible for us to assume that Section 25 of the Hindu Marriage Act was not intended to benefit such a person? We do not think so. That the obiect of Section 25 of the Hindu Marriage Act is to provide for the payment of maintenance even after the dissolution of a marriage is clear. In those circumstances, Section 25 of the Hindu Marriage Act is wider in its scope and ambit than Section 18 of the Hindu Adoptions and Maintenance Act. Further it is not obligatory under Section 25 of the Hindu Marriage Act to grant maintenance as is required by Section 23 of the Hindu Adoptions and Maintenance Act. It may be that under Section 18(3) of the Hindu Adoptions and Maintenance Act an unchaste wife will forfeit her separate residence and maintenance granted under that enactment. But that does not mean that the interpretation of Section 25 of the Hindu Marriage Act has to be restricted so as to applv it only to those cases where the wife is not guilty of adultery.

9. In dealing with Section 31 of the Matrimonial Causes Act, 1857 it was observed in Squire v. Sauire and O. Callaghan, 1905 P. 4 = 74 L. J. P. 1:

'I certainly think that the petitioner ought to make the respondent an allowance, and I think the ground for that is that the respondent should not be caused, by being left without some allowance to pursue a course of life which I should much regret if she were let to pursue. She ought to be preserved from imminent temptation. In this connection I do not lay much stress on the husband's past conduct towards his wife. In my view, the main ground for ordering him to make her an allowance is not his own conduct in the past, but that she may be reasonably safe from the terrible temptation which might otherwise assail her. The conduct of the husband is not, in my view, materially in issue in dealing with this matter. But. in the view I take of this class of case, it is material that the dum casta clause should be inserted. The wife should know and should be made to feel that her livelihood depends on her leading a chaste life in the future.'

In Sydenham v. Sydenham and Illing-worth, (1949) 2 All E. R. 196, which is a decision of the Court of Appeal, Denning, L. J. observed at page 198:

'There is nothing in the statute to say that a wife against whom a decree has been made cannot be awarded maintenance, and there is nothing in it about discretion being exercised 'in favour of one side or the other or about a 'compassionate allowance'. All it savs is that on a decree of divorce the court may award maintenance to the wife. This includes a guilty wife as well as an innocent one. but in awarding maintenance the court must have regard, of course, to the conduct of the parties. If the state of work in the Divorce Court does not enable the maintenance to be awarded by the Judge who tries the case--and so has the best means of knowing the conduct of the parties -- then the registrar must do the best he can not merely from the form of the decree but also from the shorthand note of the judgment.'

Section 31 of the Matrimonial Causes Act, 1857 is in substance the same as Section 25(1) of the Hindu Marriage Act. The same meaning given in the English decision can in our view be safely adopted in the Indian Section.

10. There is a discretion vested in the court to decide whether maintenance should be ordered and in cases where it should be so ordered, its quantum. The court has therefore jurisdiction to award maintenance in cases of judicial separation ordered because of an act of adultery. With respect we are unable to accept the view expressed by Vaidialingam, J. in that the court in such circumstances cannot order maintenance.

11. In the case before us it is clear from the Passage already extracted from the judgment of the lower court that in exercising the discretion under Section 25 of the Hindu Marriage Act, the learned judge has taken into account the conduct of the wife and also the finding that she was guilty of adultery. As pointed out by Asquith L.J. in Bellenden v. Sattorthwaite, (1948) 1 All E. R. 343:

'We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disasreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.'

Judged in the light of the principles stated above, we do not find any ground for interfering with the judicial discretion exercised by the court below. We, therefore, dismiss the appeal. But we make no order as to costs.


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