1. A very short point calls for decision in this appeal.
2. The appellant Sachindra and the respondent No. 1 Banamala are both Hindus and the marriage between the two was solemnised according to Hindu rites, on Falgoon 19, 1358 B. S. (1951). There was a daughter born to them, while hying a wedlock, sometime in the month of Bhadra. of the year 1360 B. S. (1953).
3. Priyanath, the co-respondent, described in the memorandum of appeal as the respondent No. 2, is the husband to one of the sisters of Banamala. Alleging that Banamala was living in adultery with the said Priyanath, the appellant filed a petition, under Section 13(1) of the Hindu Marriage Act 1955, claiming that his marriage with Banamala be dissolved by a decree of divorce.
4. The husband led evidence to prove that the wife was living in adultery with Priyanath. The respondent wife did not examine herself nor did she examine any witness to prove her innocence. The co-respondent Priyanath did not contest. On consideration of the evidence the learned District Judge came to the conclusion that the charge of adultery was proved against the wife. He, therefore, passed a decree for divorce, dissolving the marriage between the two. Banamala, the wife, did not appeal against the decree and, therefore, decree granting divorce is now final.
5. At the close of the hearing of the case, before the trial Court, the respondent No. 1 wife filed an application, claiming Rs. 40/- per month as maintenance for herself and Rs. 25/- per month as maintenance for the daughter, who was admittedly in the custody of her mother. The learned District Judge fallowed the application to the extent that a decree for maintenance amounting to Rs. 30/- per month for the divorced wife and Rs. 20/- per month for the daughter was passed. The mother was given custody of the daughter under the decree. The propriety of this portion of the decree is being disputed before us at the instance of the plaintiff Sachindra.
6. Mr. Shyama Charan Mitter, learned Advocate for the plaintiff-appellant, contended in the first place, that under Section 25(1) of the Hindu Marriage Act, maintenance was payable by 'the respondent' to 'the applicant'. In all divorce suits, it was contended, the respondent is the defendant, against whom a decree for divorce is claimed, and the alleged adulterer is the co-respondent. Therefore, the respondent wife, who was the defendant in the instant case, it was contended, was not entitled to claim maintenance against the husband, who was not the respondent but the plaintiff in the suit or the applicant claiming divorce.
7. Attractive though the argument may appear at the first sight, it has no substance. The dictionary meaning of the word 'respondent'' is 'let him answer.' That is to say, let the person, against whom a relief is claimed, answer that he is not liable for the claim. In a matrimonial cause the defendant is called the respondent because the wife or the husband, who may be the defendant, has to answer the charges on which divorce is sought. According to Stroud's Judicial Dictionary
'The defendant to a quarter sessions appeal is called the respondent; so, generally, of the defendant to a petition. So, of appeals generally, the party (whether plaintiff or defendant) against whom the appeal is brought, is called the respondent.'
In our opinion the word respondent is used in Section 25(1) of the Hindu Marriage Act, 1955, not in the orthodox sense in which the word is generally used in matrimonial cases, but in the Sense of an opposite party to a petition or as Stroud says 'defendant to a petition'. There is good reason why this neutral term 'respondent' was chosen in describing the party liable to pay permanent alimony, as in Section 25(1). Under the Indian Divorce Act, 1869, the Parsi Marriage and Divorce Act, 1936 raid the Special Marriage Act, 1954, the wife alone is entitled to claim alimony. Therefore, in describing the person liable to pay alimony, the word 'husband' has been used in the corresponding sections of the Acts above referred. But Section 25 of the Hindu Marriage Act, 1955, contains the extraordinary provision under which a husband may claim permanent alimony or maintenance from the wife as much as a wife may claim from the husband. If the noun of common gender 'respondent' had not been used the alternative would nave to use the cumbersome expression 'husband or wife as the case may be' and that would not have been ideal legislative draftsmanship. For the reasons aforesaid we overrule the first contention advanced by Mr. Mitter.
8. Mr. Mitter next argued that a wife who was unchaste or living in adultery was not entitled to claim permanent alimony or maintenance from the husband; so would be the case of a husband if he was having illicit sexual intercourse with another woman. In our opinion there is a good deal of substance in this contention.
9. Section 25 of the Hindu Marriage Act, 1955 is to the following effect:
'25. (1) 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 life 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.
(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order tinder Sub-section (1); it may, at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.
(3) 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 with any woman outside wedlock, it shall rescind the order.'
10. Sub-Section (1) of Section 25, of course, contains no warrant for the contention raised by Mr. Mitter, but Sub-section (3) contains an indication. If unchastity on the part of the wife or illicit sexual intercourse with another woman on the part of the husband, subsequent to an order for maintenance made under Sub-section (1), is a ground for its rescission, it will be unreasonable to hold that an order for maintenance under Sub-section (1) of Section 25 may be made, unchastity or living in adultery, on the part of the wife notwithstanding or notwithstanding that the husband was having illicit sexual intercourse with another woman. To ignore such a state of affairs, at the time of making an order under Section 25(1), may have the consequence that the order for maintenance may have to be rescinded the very next day.
11. Then again, under Section 18 of the Hindu Adoption and Maintenance Act, 1956, a Hindu wife, during wedlock, becomes entitled to maintenance from the husband, even though living senarately from him. in the following circumstances:
'(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of wilfully neglecting her;
(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;
(c) if he is suffering from a virulent form of leprosy;
(d) if he has any other wife living;
(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;
(f) if he has ceased to be a Hindu by conversion to another religion;
(g) if there is any other cause justifying her living separately.'
12. But under Sub-section (3) of Section 18 of the said Act, a wife does not become entitled to maintenance from her husband, if she is unchaste. If unchastity is a ground which disentitled a wife not divorced from her husband, to get maintenance from the husband, it is difficult to conceive that equities are greater in favour of a divorced wife and that maintenance must be given to her by the husband, her unchastity or her living in adultery notwithstanding.
13. 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 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 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.
14. In the instant case, there is unrebutted evidence to the effect the respondent No. Banamala was living in adultery with the co-respondent Priyanath, even at the' time when the case was being heard. In those circumstances, the learned District Judge should not have made any order for maintenance in favour of the wife, respondent No, 1.
15. Mr. Mitter lastly argued that the custody of the daughter should not have been given to her mother the respondent No. 1, and no separate order for maintenance should have been in favour of the daughter. Mr. Matter contended that the appellant was entitled to the custody of his daughter.
16. The power of the Court regarding custody and maintenance of minor children is contained in Section 26 of the Hindu Marriage Act, which we quote below:
'26. In any proceeding under this Act, the Court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time totime, all such orders and provisions with respectto the custody, maintenance and education of suchchildren as might have been made by such decreeor interim orders in case the proceeding for obtaining such, decree were still pending, and the courtmay also from time to time revoke, suspend orvary any such orders and provisions previouslymade.'
17. An unchaste mother is, beyond doubt, not an ideal guardian for her infant daughter. After divorce the respondent mother is free to remarry. If she does so, the imposition of step-father's care is likely to be worse for the infant, who is now aged about six years.
18. But even then we are not prepared to consign the infant to the care of her father. The father of the infant, the plaintiff appellant, deposed as hereinbelow quoted:
'I live at Ranaghat * * * I work as a carpenter in Eastern Railway at Sealdah.
I get out from my house at 5 A. M. and return to house between 7 and 10 P.M. after finishing works. On Sundays I am to do extra works. My father is aged 68 to 69. He is ailing. My old father, my old Pisima and I live in my house. My mother is dead. I get Rs. 93/- as my monthly salary.'
A person who keeps away from home from five in the morning to late in the evening and is also out on Sundays must have little time to look after the infant. Appellant's father must be now, according to the evidence on record, about 71 years old and is a sickman in addition. He is not likely to take any care of the infant, on account of his own physical infirmities. An old lady (the paternal aunt of the appellant), standing collaterally in the relationship of a grandmother to the infant, may not be source from where the infant will get maternal care and attention, which she most needs In her tender years. Moreover, the appellant father did not make the least attempt to get the custody of his daughter, when the divorce proceedings
were going on. That is some evidence of want of paternal solicitude in the appellant. To leave the infant uncared for, in a home that the appellant has, may not be in her best interests.
19. We could not ourselves think of any institution for children, within the means of the infant's father, where the infant might grow up under institutional care. Nor could the learned Advocates, appearing on either side suggest any.
20. In these circumstances, the best of the two evils is to leave the infant daughter in the custody of her mother. If she behaves unworthily as a guardian, the father has always the liberty to apply for a change of guardianship.
21. The sum of Rs. 20/- per month, allowed For maintenance of the infant daughter of the appellant is, in our opinion, not liberal and may not be sufficient. But since the mother, in whose custody the infant will remain, has not appealed we leave the amount at the figure decreed. The mother, respondent No. 1, has, however, always the liberty to apply for more maintenance for the infant daughter.
22. We, therefore, allow this appeal in part. The order for payment of Rs. 30/- per month as maintenance to respondent No. 1 is set aside. The order for payment of Rs. 20/- per month as maintenance for the infant daughter of the appellant is affirmed. There will be no order as to costs.
23. I agree.