- (1.) THIS first appeal is directed against the order dated 28-2-1967 of Shri Raghbir singh, Additional District Judge, Amritsar, whereby an application for alimony filed by the appellant under Section 25 of the Hindu Marriage Act, 1955 (hereinafter briefly referred to as 'the Act') against the respondent Piara Lal P. C. S. Sub-Divisional Officer at Tarn Taran, was dismissed with costs on the findings, inter alia, that a decree for restitution of conjugal rights had been passed against the appellant on the petition of the respondent and that this decree had remained unsatisfied and that the contrary conduct of the appellant disentitled her to alimony. This appeal had come up before Grover, J. , but it was felt that there were conflicting decisions of Single Benches of this Court on the point of law involved and that the conflict might lead to certain difficulties for the subordinate Courts and that it was desirable that the appeal should be disposed of by a Division bench. It may be pertinent to reproduce here the order of reference which runs as follows:--"the marriage between the parties took place before the partition of the country in 1947. It is common ground that two children were born of the wedlock but they died. In 1956 the husband became a member of the P. C. S. According to the wife, he deserted her and she had to file an application under Section 488 of the Criminal P. C. in the Batala Courts. That was dismissed on the ground of lack of -jurisdiction. On 20th March 1965 the husband filed application for restitution of conjugal rights in the amritsar Courts. On 30th August 1965 a decree for restitution was passed. The husband took out execution but on the date of hearing the wife absented herself. The explanation given by her was that she had to attend another Court in some other case. It appears that the wife made an application on 15th October, 1965 in the Court of Shri H. K. Mehta, additional District Judge, that she was ready and willing to comply with the order for restitution of conjugal right and that the Court Nazir be directed to escort her to the house of her husband. Notice of that application was given to the husband who opposed it on the ground that it was not maintainable under the law. It was dismissed on 24th november, 1965. Meanwhile the wife had filed an application under section 25 of the Hindu Marriage Act for grant of alimony and maintenance. That application has been dismissed by the Additional district Judge, Amritsar, and the wife has come up in appeal against his order. One of the matters which engaged the attention of the Court below was whether the wife was entitled to maintenance in the presence of the decree for restitution of coniugal rights against her. The Court felt that the decisions of this Court barred the grant of any maintenance but proceeded to examine the matter on the assumption that an order for maintenance could be granted. After discussing the evidence, it has been held that discretion should not be exercised in her favour owing to her persistent contumacious and recalcitrant attitude. It has been found that the wife does not genuinely intend to live with her husband. In Karam singh v. Daljit Kaur, ILR (1963) 1 Punj 574 at p. 575, P. C. Pandit, J. took the view that under Section 25 of the Hindu Marriage Act the power to grant permanent maintenance could be exercised after the passing of a decree either for restitution of conjugal rights or for judicial separation or for divorce. The argument that maintenance could be granted only when there was a decree for judicial separation or divorce was not accepted. The further contention that a decree for restitution of conjugal rights having been obtained by the husband against the wife, the latter could not make an application under Section 25 of the Act, was not accepted. Shamsher Bahadur, J. in Surjit Kaur v. Pargat Singh, ILR (1964) 2 Punj 100, held that the Court was bound in the first instance to make an order for permanent alimony to a wife who had been granted divorce against her guilty spouse, so long as she remained unmarried. The only circumstance which a Court could consider for fixing the alimony was the financial condition of the parties concerned. This case has been sought to be used by counsel for the wife in the present case as an authority for the proposition that under Section 25, the Court is bound to grant permanent alimony or maintenance. If the judgment is read as a whole, I do not think that it would support any such view. In Surjit Kaur alias Bibo v. Gurdev Singh (F. A. F. O. No. 55-M of 1962, d/-1-10-1964 (Punj)) the wife made an application under Section 25 of the Hindu Marriage Act for grant of permanent alimony. The husband had obtained a det-ree for restitution of conjugal rights against her. It was contended on behalf of the husband before Jindra Lal, J. who disposed of that case, that the husband having obtained a decree for restitution of conjugal rights on the ground that the wife had withdrawn from the society of the husband without any reasonable excuse, it was not competent for her to make an application for maintenance. The learned Judge was of the view that in any case the wife was not entitled to any maintenance. This is what he said--'a decree for restitution of coniugal rights was granted against her on the finding that she had no reasonable excuse for staying away from her husband. If such a decree was pending, then it appears to me that no court should grant her relief by way of maintenance, because that would defeat the very object of the decree for the restitution of conjugal rights. If, on the other hand, as is urged by her, the appellant did go and live with the respondent, then also the decree having been complied with, there is no decree pending and, therefore, permanent alimony cannot be granted under Section 25 of the Hindu Marriage Act of 1955. ' now, the language of Section 25 shows that it is within the discretion of the Court to make an order for maintenance irrespective of the nature of the decree which has been passed and with great respect of Jindra Lal, j. , I am unable to agree that merely because a decree for restitution of conjugal rights has bren passed in favour of the husband against the wife on the ground that she had withdrawn from the society, she should not be granted maintenance. The Court under the law will have to look to all the facts and circumstances and then exercise judicial discretion in the matter both of grant and quantum of maintenance nor can the other view which has been sought to be pressed on certain observations made by Shamsher Bahadur, J. in Surjit Knur's case, ILR (1964) 2 Punj 100 be accepted that the Court is bound to grant maintenance under Section 25 irrespective of the entire facts and circumstances. As the observations which have been made by the learned Judges in the aforesaid two cases might lead to certain difficulty for subordinate Courts, I consider that it is desirable that this appeal should be disposed of by a Division Bench for the constitution of which necessary orders may be obtained from the chief Justice. Counsel for the husband has agreed to pay a sum of Rs. 200 as expenses by the end of January 1968. It will be desirable that the appeal be disposed of as expeditiously as possible thereafter because it is represented by the counsel for the wife that she is in very straitened circumstances. " the language of Section 24 of the Act does not offer any difficulty, but this cannot be said of Section 25. The construction of certain portions of the last mentioned section have exercised the mind of the learned Judges in a number of cases and it would not, therefore, be out of place to reproduce Section 25 of the Act also- "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 under Sub-section (1), it may, at tho 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 anv woman outside wedlock, it shall rescind the order. " The argument has very often been advanced that the words 'while the applicant remains unmarried' in Section 25 of the Act imply that permanent alimony or maintenance can be awarded to the applicant only in cases where the marriage stands dissolved by a decree of divorce or nullity of marriage or judicial separation and that permanent alimony cannot be awarded where the applicant continues to be in the married state even after passing of the decree referred to in the opening part of this section. This contention was rightly repelled by my learned brother pandit, J. in ILR (1963) 1 Punj 574, and there are a number of cases of other High courts in India in support of the view taken by him. In Minarani Majumdar v. Dasarath Majumdar, AIR 1963 Cal 428, it was laid down that an order for separate maintenance under Section 25 could be passed in favour of a married woman living apart from her husband after the passing of a decree for divorce or nullity or judicial separation or for restitution of conjugal rights even though the decree remains uncomplied with. The condition that the maintenance was to be paid while the applicant remains unmarried was supposed to be attached to every order for maintenance and in the context of Section 25 (1) the condition only meant that the applicant had not been remarried. Similarly, in Kadia Harilal Purshottam v, Kadia lilavati Gokaldas. AIR 1961 Guj 202. it was held that the expression 'while the applicant remains unmarried' was not intended to limit the scope of Section 25 and that the intention of the legislature was that order for permanent alimony could be passed on or after the passing of any of the reliefs referred to in the earlier sections of the Act. These words were held not to restrict the application of section 25 to only those cases where a party was in a position to contract a second marriage or where the marriage bond stood dissolved or severed. This condition was supposed to govern the conduct of the parties in future and the maintenance order could be taken advantage of by the applicant only as long as he had remained immarried meaning thereby that in spite of his being in a position to do so. the applicant had not contracted another marriage.
(2.) IN Surjit Kaur v. Pargat Singh, ILR (1964) 2 Punj 100, a ruling mentioned in the order of reference, Shamsher Bahadur, J. took the view that the Court is bound in the first instance to make an order for permanent alimony to a wife who has been granted a divorce decree against her guilty spouse. Her right to alimony was described to be absolute and it was incumbent on Courts to make an order that the husband shall pav to the wife on her petition such sum as can be awarded on the circumstances of the cas- The only condition imposed on the wife was that she should remain unmarried when she made the prayer for permanent alimony. The financial condition and the conduct of the parties were circumstances which were relevant only for fixing the quantum or rate at which maintenance was payable.
(3.) IN Amar Kanta Sen v. Sovana Sen, AIR 1960 Cal 438, Datta, J. of the Calcutta high Court held that even an unchaste wife had an absolute right to a starving allowance for her maintenance and that this right would be enforceable even where the wife had been divorced on the ground of her adultery. This provision is intended to prevent the wife's starvation and where she has an income of her own, her right to this bare subsistence disappears. A similar view has been taken in Dr. Hormusji M. Kalapesi v. Dinbai H. Kalapesi, AIR 1955 Born 413 (DB), a case under the Parsi Marriage and Divorce Act, which has, strange to say, been cited by the respondent's counsel. _section 30 of that Act may appear to be in pari materia with Section 25 of the Hindu Marriage Act except for the fact that the chastity of the wife besides her unmarried state have been given as the requisite condition entitling her to permanent alimony after the passing of any decree under the Act. In para. 8 at p. 416, reference is also made to the Bombay Hindu Divorce Act which has been enacted in substantially similar terms. The Hon'ble Judges observed that so far as they were aware it had been the consistent practice of the court to entertain applications for alimony even in the case of defaulting or guilty wives and to deal with them on merits. An application made for alimony had, so far as the Hon'ble Judges were aware, never been thrown out on the preliminary ground that the petition had been made by a guilty wife. English case law was discussed and it was found that it was never intended that a guiltv wife should be turned out on the streets to starve. Cases were contemplated where under certain circumstances a wife, who had been divorced on the ground of adultery could be awarded maintenance or alimony. The existence of an unsatisfied decree for restitution of conjugal rights against the wife may not, therefore, seem to disentitle her to permanent alimony. With great respect I may say that the learned judge, who decided the case of Surjit Kaur alias Bibo, F. A. F. O. No. 55-M of 1962, D/- 1-10-1964 (Punj) mentioned in the order of reference had not cited any cases in support of his views,;