R. Sengottuvelan, J.
1. This second appeal is filed by the plaintiffs in O.S. No. 554 of 1974 On the file of the District Munsif, Srivilliputhur, challenging the correctness of the judgment of the District Judge, Ramanathapuram at Madurai in A.S. No. 30 of 1978. The facts of the case are briefly as follows : The first appellant is the wife and the second appellant is the minor daughter of the respondent herein. The first appellant married the respondent in the year 1967 and the second appellant was born as a result of the said marriage. The first appellant's case is that she lived happily till the middle of 1970, when the respondent took the jewels worth about Rs. 1,500 from the first appellant and sold them as a result of which there was a misunderstanding. The respondent ill-treated the first appellant intending to marry his sister's daughter as his second wife. The ill-treatment was also due to the instigation of the sister of the respondent. Eventually, the first appellant was sent out of the house of the respondent after meting out the cruel treatment. Hence the first appellant claims that she is entitled to live apart from her husband and prays for a maintenance of Rs. 75 per mensem for her and Rs. 3o per mensem for the minor daughter.
2. The Case of the respondent is that he did not take the jewels of the first appellant as alleged and that he did not also ill-treat the first appellant- The respondent, on the ground that the first appellant had deserted him had filed a petition for restitution of conjugal rights in O.P. No. 40 of 1972 Sub-Court, Ramanatha puram at Madurai, and th e same was allowed. The first appellant did not comply with the decree for restitution of conjugal rights and on that basis the Sub-Court, Ramanathapuram at Madurai passed an order for divorce in O.P. No. 46 of 1972, at is also the case of the respondent that he is prepared to live with the first appellant and maintain her as well as the child-Regarding the quantum, the respondent's contention is that the claim is excessive.
3. The trial Court, after considering the evidence in the case, came to the conclusion that the appellants had made out a case for maintenance and taking into consideration the earrings of the respondent, the trial Court found that the first-appellant is entitled to Rs. 50 per men. sem and the second appellant is entitled to Rs. 15 per mensem by way of maintenance and passed a decree accordingly. As against the said judgment, the respondent herein preferred an appeal in A.S. No. 30 of 1978 on the file of the District Judge of Ramanathapuram at Madurai. The learned District Judge ,on a reappraisal of the evidence, came to the conclusion that the first appellant is not entitled to any maintenance and in so far as the second appellant is concerned, the learned District Judge has failed to consider the claim and did not make any reference to the claim made by the second appellant. This second appeal is filed by the appellants herein challenging the validity and correctness of the judgment of the learned District Judge of Ramanathapuram at Madurai.
4. Mr. S. Krishnasamy, the learned Counsel appearing for the appellants, raised the following contentions in support of his argument that the judgment and decree of the lower appellate Court are not sustainable : (1) The conclusion of the lower appellate Court that the first appellant is not entitled to maintenance on the ground that a decree for divorce had been passed against her is not correct since even a divorced wife is entitled to maintenance in law. (2) The lower appellate Court erred in not considering the claim of the second appellant, which is a serious omission in the judgment of the lower appellate Court.
5. The lower appellate Court on a consideration of the evidence in the case, came to the conclusion that the first appellant has no justification to live away from her husband the respondent, in the light of the decree for restitution of conjugal rights passed against her by a competent Court. The lower appellate Court has also observed that because the decree for restitution of conjugal rights was not complied with, the learned Subordinate Judge, Ramanathapuram at Madurai, passed a decree for divorce in O.P. No. 4 60 of 1972, which order has become final. On behalf of the first appellant, it is contended that even in a case where a decree for divorce is passed, the divorced wife is entitled to get maintenance according to law. Reliance is placed upon Rajagopalan v. Kamalammal : AIR1982Mad187 , where Ramanujam J., held as follows:
Permanent alimony can be granted even to an erring spouse and the fact that the wife was th e guilty spouse can only be taken as a relevant factor in assessing the conduct of the parties and in determining the amount of permanent alimony- It is well-established that a guilty party cannot take advantage of her guilt and make a profit out of such guilty conduct. The respondent's conduct cannot be completely ignored when quantifying the maintenance payable by the appellant.
This is a case rendered under the provisions of the Hindu Marriage Act. In the very same judgment a reference is made to the decision in Clear v. Clear (1958) 2 All E.R. 353 wherein it has been held that there is a difference between the common law right to get maintenance and the right to get maintenance arising by virtue of divorce legislation and that even if the wife has forfeited her right to get maintenance under the common law, she is entitled to get maintenance under the provisions of the divorce legislation.
6. The principle is that in common law, if the husband deserts the wife, the wife is entitled to maintenance. According to the Hindu Marriage Act even after divorce the divorced wife is entitled to got permanent alimony till she married again. As stated already, there is a difference between the two. The wife has the cause of action for maintenance under the common law if there is a desertion on the part of her husband or cruelty which entitled her to live separately. If the wife fails to establish that she has got the right to live Separately, then she is not entitled to maintenance under common law. The Court exercising jurisdiction under the provisions of the Hindu Marriage Act is empowered to award permanent alimony to a divorced wife.
7. In this case, there is a decree against the first appellant for restitution of conjugal rights, which directs her to live with the respondent. Under the circumstances, the first appellant cannot have any justifiable reason to live separately. It is also seen that in view of the fact that the first appellant did not comply with the decree for restitution of conjugal rights, an order for divorce had also been passed dissolving the marriage of the first appellant with the respondent in O.P. No. 46 of 1972. Under the circumstances, it cannot be said that the first appellant has got a cause of action under the common law to get maintenance from the respondent. The resoning of the first appellate Court is correct in this respect.
8. However, the first appellant may be entitled to maintenance under the provisions of the Hindu Marriage Act, which remedy is left open.
9. As far as the second appellant is concerned, the trial Court awarded maintenance of Rs. 15 per mensem. The lower appellate Courtactually forgot the existence of the second appellant and did not consider the maintenance claim of the second appellant. The claim of the second appellant for maintenance cannot be challenged on any account and hence the appeal in so far as the second appellant is concerned will have to be allowed. The learned Counsel for the appellants contended that the maintenance awarded to the second appellant is very low, considering the in come of the respondent which according to the first appellant, is Rs. 350 as mentioned in the plaint and Rs. 450 as mentioned in her evidence-But the appellants herein did not file any appeal against the judgment of the trial Court awarding Rs- 15 per mensem as maintenance for the second appellant. As such, the order has become final and the quantum cannot be challenged by the appellants in the second appeal.
10. In the result, in so far as th e maintenance claim of the first appellant is concerned, the judgment and decree of the lower appellate Court are confirmed and the Second Appeal is dismissed. In so far as the maintenance claim of the second appellant is concerned, the judgment and decree of the trial Court awarding a maintenance of Rs. 15 per mensem to the second appellant are confirmed and there will be a decree directing the respondent to pay Rs 15 per mensem as maintenance to the second appellant, herein from the date of suit till the date she gets married. The second appeal is allowed in part as indicated above. There will be no order as to costs.