J.P. Jain, J.
1. This appeal is by Smt. Anchi, who lost her claim for restitution of conjugal rights against Satya Narayan, her husband in the Court of District Judge, Jodhpur.
2. The parties are 'DARJI' by caste. They were married in Samvat year 2007. They stayed together discharging their marital obligations upto 1.11.1967 By this wed lock they bad one son and one daughter. The son died soon after his birth. The daughter is alive and she is Teepoo by name and is staying with her mother Smt. Anchi Satya Narayan is an employee in the Northern Railway. According to Anchi he had been cruel to her. He used to have illicit inter-course with other women. However, she managed to stay with him as far as possible for her. On 1-11-67 according to the petitioner she was cruelly beaten and turned out of the house. Then she went to her father's house in village Khagta and has been staying with him since then, Anchi says that she is ready and willing to go to her husband's house but he has been neglecting to look after her as he has several illicit connections. It is admitted before me that Satya Narayan had even re-married in 1969. In the petition Anchi claimed in the first instance restitution of conjugal rights and in the alternative a maintenance allowance for herself and her daughter Teepoo at the rate of Rs. 150/- per month. Her allegation is that Satya Narayan's income is in the sum of Rs. 300/- per month She also claimed maintenance pendente lite and expenses of the prosecution.
3. The petitioner's case was resisted by Satya Narayan. He denied the allegations of bad character and cruel treatment. He, however, alleged there is custom of divorce in their community and in fact on Kartik Sud 1 Samvat year 2024 dissolution of the marriage has taken place with the consent of the father and the uncle of the girl. He did not dispute the birth of the girl and her living with Smt. Anchi. As regards his monthly income he maintained that in all it was Rs. 214/- per month. By way of interim relief the learned District Judge by his order dated 16-10-70 allowed Anchi a maintenance allowance of Rs. 25/- per month and Rs. 150/- as expenses of the proceedings.
4. The learned District Judge after an elaborate inquiry held that a custom of divorce is prevalent in the community of the party and the marriage between the parties has been dissolved as alleged by Satya Narayan. In view of the finding he did not think it necessary to decide the other part of the case. He, however, dismissed the petition He also failed to pass any order for providing maintenance to Anchi and her daughter. This order is under challenge.
5. I have heard Mr. Joshi on behalf of the appellant and Mr. Singhvi for the respondent. It has not been disputed before me that Satya Narayan has contracted a second marriage and brought another woman in his house. I have been taken through the evidence and I find that the custom of divorce is prevalent in the community of the parties and the marriage between the parties has been dissolved, with the consent of the father and the uncle of the girl. Mr. Joshi has not been able to satisfy me that the findings of the learned Judge on issue No. 3 and 4 are erroneous. I have satisfied myself that this is welt supported by evidence. In this view of the matter I would not like to interfere in this findings But the contention of Mr. Joshi is that Mst. Anchi and her daughter Teepoo are entitled to maintenance from Satya Narayan. This is not without force. Mr. Singhvi has frankly conceded that both of them are entitled to permanent alimony under the provisions of Section 25 of the Hindu Marriage Act. It has also been admitted before me by Mr. Singhvi that at the moment the income of Shri Satya Narayan is Rs. 225/- per month. I think it just to make a provision for the maintenance of Mst. Anchi and her daughter Teepoo and they are clearly entitled to maintenance under Section 25(1) of the Act. Having regard to the income of the respondent Satya Narayan, I think it just to fix Rs. 20/- per month for Teepoo and Rs. 20/- per month for Smt. Anchi as permanent alimony and maintenance. This amount shall be payable to Anchi and Teepoo from January 1, 1975 Satya Narayan will make it a point to remit by M.O. the sum of 40/- per month to Smt. Anchi within 15 days of the next month. The alimony thus fixed for the months of January, February and March shall be remitted by Satya Narayao by the end of this month.
6. In the result, the appeal partly succeeds and the decree passed by the learned District Judge, Jodhpur, is accordingly modified. In the circumstances of the case there will be no order as to costs.