G.M. Lodha, J.
1. These two cross appeals have been filed by either of the spouse against the order of the District Judge, Sawai Madhopur, Camp Gangapur City, dated 5-8-1980.
2. Rameshwari is the wife and Umesh Chand is the husband. A decree for dissolution of marriage has already been passed by the District Judge, and confirmed by this Court on the ground that Rameshwari has deserted Umesh Chand and in spite of a decree for restitution of conjugal rights, she did not comply with the decree and continued to stay away from the husband.
3. The present controversy has arisen in respect of the application of Rameshwari under Section 25 of the Hindu Marriage Act, 1955 for grant of permanent alimony and maintenance. The lower Court has come to the conclusion that Rameshwari is entitled to get permanent alimony and maintenance. She has claimed Rs. 200/- p. m. as per her application. The lower Court has directed that she would get Rs. 125/- p. m. as maintenance from her husband Umesh Chand and this maintenance would be given with effect from 22-1-1980. Both the parties are aggrieved by this order. Whereas, Rameshwari claims that the amount should be increased to Rupees 200/-, Umesh Chand has challenged the order on the ground that no maintenance whatsoever should have been allowed in view of the conduct of desertion by the wife.
4. Mr. Keshote appearing for the appellant Umesh Chand invited my attention to the amendment of Section 25, inwhich the conduct of the parties andother circumstances of the case havebeen added by the Act No. 68 of 1976.It was argued by Mr. Keshote that because of this amendment now in spiteof passing of the decree for conjugalrights directing the wife to come and staywith the husband and which resulted inpassing of decree for dissolution of marriage, the wife cannot claim any maintenance permanently, because it wouldbe putting premium on her conduct ofdesertion. It was pointed out that theLegislature intended to remedy this mischief, and, therefore, it has added theword 'conduct' which was not there earlier in Section 25.
5. The learned counsel Mr. Gupta, who appeared for Rameshwari submitted that it is settled law that even when a decree for dissolution is passed on account of any lapse of the wife, the wife is entitled to maintenance till she remarries.
6. Mr. Gupta further argued that is has been established on record that Umesh Chand is having lots of agricultural land from which he gets substantial income and he has got a house of Rs. 80,000/-, the rent of which is also about Rs. 200/- p. m. In view of this Mr. Gupta argued that the maintenance should have been at least Rs. 200/- p. m. more so when she is suffering from various diseases and is required to spend huge amount for her treatment.
7. Mr. Gupta in support of his contention invited my attention to a judgment of the Punjab & Haryana High Court reported in Rajinder Parkash v. Smt Roshni Devi, AIR 1981 Punj & Har 212, Head Note of which reads as under (at p. 213):--
'The reference in Sub-section (1) of Section 25 to the conduct of the parties is to be read with the provisions of subsection (3) thereof. Accordingly, no party will be entitled to the maintenance keeping in view their conduct, if either of them has remarried or, if the party 'claiming the maintenance is wife, has not remained chaste. But, it cannot be said that simply because the divorce was granted on the basis of desertion on the part of the wife, it is, itself sufficient to deprive her of the maintenance under Section 25. In this respect, reference to Section 125 of the Code of Criminal Procedure may be relevant. Therein, wife includes a woman who has been divorced by, or has obtained divorce from her husband and has not remarried.'
8. I would also refer to the following para from the Treatise on the Marriage Laws of India, by Mr. B.P. Beri, former Chief Justice of the Rajasthan High Court, in which the learned author while discussing the question of grant of alimony has observed as under;
'Adultery : In K. Kunhikannan v. N.V. Malu (AIR 1973 Ker 273) the wife was found guilty of adultery. She asked for alimony. A bare subsistence allowance of Rupees 26/- p.m. was allowed. In appeal the argument was that the wife being guilty should not have been granted alimony. The learned Judges referred to the principles adopted in similar cases under the English Matrimonial Causes Act and quoted Sydenham v. Sydenham and Illingworth, (1949) 2 All ER 196 and quoting extensively Denning L. J. held that such a wife was also entitled to alimony. It is only the conduct subsequent to the decree which was material.
In Amer Kanta Sen v. Sovana Sen (AIR 1960 Cal 438) the marriage was dissolved due to wife's adultery. The wife made an application under Section 25 saying that she was not keeping good health; she did not intend to remarry; she came from a respectable family and that she wished to dedicate the rest of her life for the progress of her son and in painting and music for which she had special aptitude and asked for alimony. On principle, it was held that only because the wife was guilty of adultery, she could not be denied alimony, but in the peculiar circumstances of the case, a small sum was allowed because the wife was working in the All India Radio.
In Sachindra Nath v. Banmala (AIR 1960 Cal 575), the wife was living in adultery with her sister's husband. The husband was granted divorce on that ground. The wife applied for alimony, both for herself and her daughter. The trial Court awarded Rs. 30/- p.m. to the wife and Rs. 20/- p.m. to the daughter. The learned Judge observed, 'the 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 morality 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 morality is Section 25 of the Hindu Marriage Act, and for the matter of that Section 18 of the Hindu Adoptions 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 proved unchastity or adultery, to resources of her immorality and deny her the lawful means of support, 'by passing a decree for maintenance in her favour'.
It may be noted that in this case, there was unrebutted evidence to the effect that wife Banmala was living in adultery with the co-respondent, even at the time when the case was being heard. However, the maintenance of the daughter at the rate of Rs. 20/- p.m. was affirmed.
In Atam Prakash v. Jai Devi, 1976 Hindu LR 837 (Punj & Har) the wife was found guilty of adultery in which the husband and his mother connived. She was awarded alimony at Rs. 60/-p.m., the husband's income being a mere Rs. 165/- p.m. the High Court declined to disturb.
Cruelty: In Jagdish v. Manjula, AIR 1975 Cal 64 (65, 66), the husband had obtained judicial separation on the ground of wife's cruelty towards him. She had only filed a written statement, but did not contest the case. Eventually, the wife asked for alimony. The husband contested it urging:
(a) that she was not entitled to any alimony because she was guilty of cruelty;
(b) that the claim of Rs. 500/- p. m. was excessive.
Adopting the reasoning given in Dr. Hermousji v. Dina Bai (AIR 1955 Bom 413) -- a case under the Parsi Marriage & Divorce Act, 1936, the learned Judges held that the conduct of the wife was relevant, but it was no part to be considered in the grant of alimony to her and having regard to the income of the husband calculated on the principles of net income as it obtained in England, the wife was awarded Rs. 400/- p.m.'
9. While discussing the judgment in Sachindra Nath v. Banmala (AIR 1960 Cal 575) (supra) wherein the learned Judges observed that the unchastity of the wife are sins against the ethics of matrimonial morality in this country, but moral law is not the positive civil law of a country. Their Lordships observed that law and morality meet in Section 25 of the H. M. Act and, therefore, a Judge should unless there be 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 her support. In Jagdish v. Manjula (supra) the wife was granted maintenance in spite of the fact that she was guilty of cruelty and the learned Judges held that this conduct was no bar to be considered in the grant of alimony.
10. On a thoughtful consideration of amendment introduced in Section 25, I am inclined to agree with the interpretation put by Mr .Gupta that the conduct of the parties and other circumstances of the case qualify the phrase 'such gross sum or such monthly or periodical sum. This is more so because Sub-clause (3) expressly mentions the type of conduct on account of which the decree of maintenance granted can be varied or rescinded, and that is limited to remarriage or not remaining chaste. I am not prepared to accept with all respect to the learned Judge of the Punjab & Haryana High Court the view that the conduct mentioned in Sub-clause (1) is limited to the instance of conduct contained in Sub-section (3) i.e., remarriage or of being unchaste only.
11. I am prepared to accept the proposition laid down by Punjab & Haryana High Court that a wife against whom a decree is passed on account of her own desertion is also entitled to permanent alimony under Section 25 of the Hindu Marriage Act.
12. The next question is, what should be the amount in this case for which both the parties are agitating.
13. The argument of Mr. Gupta that the lower Court should have considered the income for the purpose of fixing maintenance by including the income of agricultural land and the house. The lower Court has held that it is about Rs. 55/- p. m. and the salary is Rupees 445.20 p., and thus if the amount received from the income of the house is added to it, which is Rs. 33/- the total income comes to Rs. 533/- p.m. on a careful consideration of the evidence, I am not inclined to disturb this finding of the lower Court and I hold that the total income of the husband is Rs. 533/- p.m. from all sources including salary, agricultural land and the house rent.
14. The fact that the wife deserted the husband and the conduct should be considered while deciding the question of permanent maintenance now assumes importance, because admittedly the lower courts has not considered this aspect of the matter. It is true that no 'dry and cut' solution can be found out for measuring the conduct of desertion in terms of the reduction in quantum of maintenance. However, when the Legislature has introduced this amendment in Section 25, it cannot be treated as redundant and should be given effect to logically and legally. Undoubtedly, the wife in the present case deserted the husband, did not reconcile and return to the husband during the pendency of the first litigation of restitution of conjugal rights. She insisted on remaining separately even when a decree for restitution of conjugal rights was passed, and forced the husband to file a petition for dissolution of marriage, and now the marriage has been dissolved, for which she alone is responsible, she cannot persuade this Court for grant of such maintenance which should be enough for maintaining her, and also meeting the expenses of the medicines. It is self-invited trouble, for which none else but she is responsible. The act of desertion which was done initially and which has been consistently followed by her, in no case can put premium over her conduct That being so, in consonance with the intention of the Legislature and also the amendment introduced in Section 25, I am of the opinion that whereas the appeal filed by her is devoid of force and deserves to be dismissed, she is further entitled to reduced maintenance, which is hereby reduced from Rs. 125/- p.m. to Rs. 100/- p.m. The appeal of Umesh Chand succeeds partially. There would be no order as to costs.
15. Both the learned counsel have challenged the date fixed by the lower court for the grant of permanent alimony. Mr. Keshote submits that it must be the date of judgment, but Mr. Gupta on the contrary urges that it must be the date of application. However, I am of the opinion that there is absolutely no ground to interfere in the discretion of the lower court on this point, and, therefore, the date fixed by the lower court is confirmed.
16. The result is that appeal of Rameshwari Devi is dismissed and that of Umesh Chand is accepted. There would be no order as to costs in both these appeals.