D. L. MEHTA, J. -
(1.)HEARD learned counsel for the petitioner and perused the order passed by the District Judge, Jaipur District, Jaipur. The learned District Judge, Jaipur vide order dated 5th May, 1984, restored the case to its original number and set aside the decree passed against the petitioner.
(2.)SMT. Kundan Kanwar wife of the petitioner moved an application under Section 18 (2) (a), (b) & (d) of the Hindu Adoption & Maintenance Act, 1956 and prayed for grant of maintenance and other reliefs.
The learned counsel for the petitioner has assailed the condition No. 1 imposed by the learned District Judge. Condition No. 1 reads as under: "the applicant pays to the non-applicant or deposits in the court within a period of one month from today the entire uptodate amount of maintenance as directed by the decree under reference. "
On a query having been made by the Court as to how much maintenance allowance was allowed by the Court while passing the exparte decree, the learned counsel for the petitioner submits that the maintenance awarded was Rs. 100/- per month. The learned counsel for the petitioner has invited my attention to the case of Chhagan Raj vs. Sugan Mal (1), wherein their Lordships held that whether the court was right in imposing the terms relating to the deposit of the decretal amount or giving security for the same, depends upon the circumstances of each case. Generally speaking, costs should be sufficient to compensate the decree-holder in such cases if any damage is suffered by him on account of non-appearance of the defendant on the date fixed.
The facts of the said case were that a suit was brought against the father of the appellants on 9th August 1951. Their Lordships had discussed whether the Court was right in imposing the terms relating to the deposit of the decretal amount or giving security for the same, depends upon the circumstances of each case.
Mr. Nag, learned counsel for the petitioner, has invited my attention to Alimohammad vs. Manaklal (2), in which their Lordship held that while setting aside an ex parte decree the Court, should not affix any condition onerous on the defendant unless it finds that he was at fault, that is to say, it can be imposed only if the defendant has been guilty of some omission, which, however, the Courts find not serious enough to justify the maintenance of the ex parte decree. The proposition laid down in the case referred to above cannot be denied. Generally, the Court should not impose any condition while setting aside the ex parte decree. This proposition is a general proposition having some exception thereto.
(3.)SEC. 24 of the Hindu Marriage Act, 1955 provides that where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable. Under SEC. 125 of the Code of Criminal Procedure, 1973, there is a provision for maintenance of the wife. Under SEC. 18 of the Hindu Adoptions and Maintenance Act, 1956, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime. Under SEC. 23 of the said Act the amount of maintenance is determined taking into consideration the position and status of the parties, reasonable wants of the claimant etc. Their Lordships of the Supreme Court in Mobarik Ali Ahmed vs. State of Bombay (3), in para 31, held as under:- "it is not necessary and indeed not permissible to construe the Indian Penal Code at the present day in accordance with the notions of Criminal jurisdiction prevailing at the time when the Code was enacted. The notions relating to this matter have very considerably changed between then and now during nearly a century that has elapsed. It is legitimate to construe the Code with reference to the modern needs, wherever this is permissible, unless there is anything in the Code or in any particular section to indicate the contrary. "
In the present case, the petitioner has not come with the case that the wife is having a difference source of income and she is capable of maintaining herself. In the law relating to maintenance, the law provides for the benefit to the weaker section of the society and especially the women, that maintenance should be granted by the husbands and they should not be allowed to die of starvation. It is a curse on the society that the wives are coming to the Court seeking for providing bare necessities of life to maintain themselves. It is the sacred duty of the husbands to maintain them. Under the Hindu phylosophy wife is Ardhangini. Now, there is a thinking prevailing at present that the word "ardhangini" should be given a wider interpretation under the Hindu Law, and so that they should be equated with the co-sharers in the property of the hus-bands. Though, there is no law in India on this point, and so the movement has already started. Especially, in Britain T. P. Act has been amended where-by if wife contributes something towards the purchase of the property, she has been given a right to claim the share even though the property has been purchased in the name of the husband. Some jurists are thinking that whether the domestic service rendered by wife and up-keep of the children is a contribution by the wife and it should be considered as contribution in the purchase of the property, or not.
In the present case, the learned District Judge has awarded Rs. 100/-per month as maintenance. Looking to the necessities of life, price index which is rising by leaps and bounds every day and other factors, Rs. 100/- per month cannot be considered to be an amount which is unreasonable. Even otherwise, for the maintenance of wife and for meeting both ends, the amount of Rs 100/-is very very meagre and if that condition has been imposed, it cannot be said to be bad in law. The Law does not prohibit grant of maintenance during the pendency of the proceedings. We can take the aid of Sec. 24 of the Hindu Marriage Act, which specifically provides that during the pendency of the proceedings maintenance can be granted and so also the cost of proceedings. Sec. 24 of the Hindu Marriage Act, though, not applicable so far as Hindu Adoptions and Maintenance Act, 1956 is concerned, but its assistance can be taken in interpreting the law, that law does not prohibit grant of maintenance even under any of the provisions of law when the Court thinks it proper that it is necessary in the interest of justice and the Court has inherent power to grant interim maintenance when it is considered proper under any of the provisions of law, may be under Sec. 125 of the Code of Criminal Procedure, 1973, or under the Hindu Adoptions and Maintenance Act, 1956 inasmuch as the powers are not restricted by specific provision of law. The inherent powers of the Court are always there and they should be exercised whenever there is necessity to do so.