MENOKABALA DASI Vs. PANCHANAN SEAL

JUDGEMENT

(1.) This is an appeal against an order of Ray J., dated 25th June 1963. The facts in this case are as follows: On or about the 24th June, 1953 the appellant filed a suit against the respondent, her husband, being Suit No. 2190 of 1953 for maintenance and other reliefs. On the 24th June, 1954 a decree was passed by G.K. Mitter J., directing the respondent to pay to the appellant a sum of Rs 40/- per month as maintenance. In the said decree, no liberty was given to the decree-holder to apply from time to time for increasing the amount of maintenance due to change of circum-stances. In December, 1955 the appellant made an application before Mitter J., for enhancement of her maintenance. On 27th February, 1956 the learned Judge passed an order increasing the maintenance from Rs. 40/- to Rs. 50/-per month. In February, 1960 the appellant made another application asking for the enhancement of her maintenance from Rs. 50/-to Rs. 100/- per month. On the 18th March, 1960 this application was dismissed by Ray J. On the 13th December, 1960 the appellant made a further application for enhancement of her maintenance from Rs. 50/- to Rs. 100/-. On the 11th April, 1961 G.K. Mitter, J., passed an order increasing the maintenance from Rs. 50/- to Rs. 55/- per month. On 7th June, 1963 the appellant took out a notice of motion asking for increase of the maintenance to Rs. 100/- per month. This application was resisted by the respondent. On 25th June, 1963 the matter came up for hearing before Ray J., who dismissed the application but made no order as to cost. It is against this order that this appeal is directed.

(2.) The learned Judge in the court below has considered all the facts of the case. According to the appellant, she resides in a rented house at a monthly rental of Rs. 25/- and her average monthly expenses exceed Rs. 100/-. The respondent was employed by Messrs, Macnell and Barry and his basic pay was Rs. 284/-. With clearness allowance he was getting Rs. 460/- per month. It is further alleged that he realises monthly rent from a house at Haltu aggregating to Rs. 180/-. In the affidavit in opposition, the respondent has mentioned that he was suffering from tuberculosis and he has another wife and several children whom he has to maintain. He also has to maintain his blind sister. He was indebted to the Mercantile Co-operative Society Ltd., to the extent of Rs. 4619/- and a sum of Rs. 140/-was deducted from his pay every month. The learned Judge, after taking into consideration all the facts, came to the conclusion that no in crease in the rate of maintenance was justified. We have been informed that since the passing of the order in the court below, the respondent has retired and his pension is approximately Rs. 227/- per month. We do not see any reason to differ with the learned Judge on the merits and see no reason to interfere with the finding as to the quantum of maintenance. I might mention here that we made an attempt to settle the matter, but owing to the attitude taken by the appellant the matter could not be settled. In the court below, the learned Judge has observed that the decree provided maintenance for Rs. 40/- per month, but did not provide for any increment by reason of change of circumstances. Mr. Ghosh appearing on behalf of the respondent has taken the point that under such circumstances, an application does not lie for increase of maintenance even under the provisions of the Hindu Adoption and Maintenance Act, 1956. In view of the repeated applications made in this case and in view of the observations made by the court below, we are of the opinion that this point of law should be allowed to be taken although in the memorandum of appeal there is no specific ground to that effect. The matter has been argued before us fully by both the parties and we proceed to give our decision on the point. For this purpose, we have to examine the provisions of the Hindu Adoptions and Maintenance Act (Act 78 of 1956) (hereinafter referred to as the 'said Act') Chapter III of the said Act deals with subject of "maintenance". Section 18(1) provides that subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of the said Act, shall be entitled to be maintained by her husband during her lifetime. Section 23 of the said Act provides for the amount of maintenance. Sub-section (1) provides that it shall be at the discretion of the court to determine whether any, and if so what, maintenance shall be awarded under the provisions of the said Act, and in doing so the court shall have due regard to the considerations set out in Sub-section (2) or Sub-section (3), as the case may be. Sub-section (2) relates to the amount of maintenance to be granted to a wife, children or aged or infirm parents. Sub-section (3) relates to the amount of maintenance to be awarded to a dependant under the said Act. We are not concerned with Sub-section (3). Sub-section (2) provides that, in determining the amount of maintenance, regard shall be had to the position and status of the parties; the reasonable wants of the claimant; if the claimant is living separately whether the claimant is justified in doing so, the value of the claimant's property and any income derived from such property, or from the claimant's own earnings or from any other source etc., and the number of persons to be maintained by the person who is to pay the maintenance. Section 25 is important and is set out below:

(3.) It will be observed that in this provision, it is expressly mentioned that the payment of maintenance may be ordered at the time of the passing of the decree or at any time thereafter by application made to the court which may vary, modify or rescind any such order in such manner as it may deem fit and just. While Section 25 of the Hindu Marriage Act expressly lays down a procedure by way of an application, Section 25 of the said Act does not lay down any such procedure.