RAJA GOPALAN v. RAJAMMA — 1966 DIGILAW 147 (KER)

Judgment :- 1. In this revision, Mr. T. Chandrasekhara Menon, learned counsel for the petitioner, challenges the orders of the two courts, directing his client to pay maintenance or what is called, in the orders, as starving allowance, to the respondent herein at Rs. 12-50 per month. 2. The quantum of the amount allowed as maintenance does not loom large in this C. R. P. and in fact when the two courts have concurrently found that if maintenance is to be granted to the respondent, then having due regard to the sources of income of the petitioner and the means, if any, available to the respondent, Rs. 12.50 has to be paid per month, obviously the petitioner cannot challenge that question alone, in this court under S.115 of the Code. 3. But the contention that has been taken is a larger one namely, that under the circumstances, in which the petitioner asked for judicial separation, as against respondent and later on also obtained a divorce alleging and establishing unchastity on the part of the respondent, the latter has no right at all to be awarded any maintenance whatsoever, under S.25 of the Hindu Marriage Act, 25/1955. 4. It is necessary to set out briefly the circumstances, under which, the claim for alimony was made by the respondent. The petitioner-husband, there is no controversy, filed O. P. 3/58 under S.10 and 13 of Act 25/1955; and the District Court, Ernakulam granted judicial separation under S.10 of the Act, by a decree dated 12 21960. 5. The petitioner alleging that after the decree in O. P. 3/58, the respondent, has not resumed cohabitation with the petitioner, for a space of 2 years required the dissolution of the marriage by a decree for divorce, and filed O. P. 5 of 1962 under S.13 of the said Act for divorce. 6. In that application the respondent, no doubt admitted the fact that there is a decree for judicial separation in O. P. 3/58; but nevertheless stated that she is still prepared to go and live with the petitioner. She also claimed to be entitled to be paid alimony under S.25 of the said Act and for that purpose she filed I. A. 61/63. The respondent claimed alimony at the rate of Rs. She also claimed to be entitled to be paid alimony under S.25 of the said Act and for that purpose she filed I. A. 61/63. The respondent claimed alimony at the rate of Rs. 45/- per month on the ground that she is accustomed to a decent way of life and on the basis that the petitioner is getting not less Rs. 100/-as monthly income. It is only necessary to note that a decree for divorce has been passed in favour of the petitioner on the application, O. P. 5/62 filed by him. That aspect is no longer in controversy between the parties. But at the time of passing the decree of divorce, the court, after a consideration of the means of the parties, has directed the petitioner to pay the respondent a sum of Rs. 12.50 as alimony. That claim was recognised in favour of the respondent in the application filed by her as I. A. 61/63. 7.Apart from disputing the allegation of the respondent regarding the income derived by the petitioner, the claim of the respondent for getting alimony under S.25 of the Act was contested by the petitioner on the ground that the respondent is not entitled to any alimony whatsoever in view of the fact that the judicial separation in O. P. 3/58 was allowed on the ground of immorality on the part of the wife. 8. That contention was no doubt controverted by the respondent on the ground that she has got a right to claim maintenance under S.25 of the Act; and if the necessary circumstances are established, it will be open to the petitioner to have the order cancelled or modified in accordance with the provisions contained in S.25. 9. The learned Subordinate Judge, who dealt with the matter in the first instance, adverts to the provisions of S.25 of the Act. The respondent has clearly indicated that she has no intention of marrying again. Therefore the court proceeds on the basis, that the alimony has to be fixed, dependent upon the income and possession of other properties and the conduct of parties. The learned judge then considers the question as to whether the ground on which judicial separation was granted in O. P. 3/58, namely, unchastity, is a circumstance which will totally disentitle the respondent from claiming any alimony whatsoever. 10. The learned judge then considers the question as to whether the ground on which judicial separation was granted in O. P. 3/58, namely, unchastity, is a circumstance which will totally disentitle the respondent from claiming any alimony whatsoever. 10. In that context, the learned Subordinate Judge adverts to a decision of a learned single judge of the Calcutta High Court in Amar Kanta Sen v. Sovana Sen (AIR. 1960 Cal. 438) wherein the learned judge has expressed the view that even incases, where a marriage is dissolved on the ground of adultery of the wife, the latter will be entitled to a bare subsistence allowance or starving allowance from her husband. The learned judge also, in so many words, states that he is not prepared to accept the extreme contention of the petitioner that as judicial separation has been granted on the ground of unchastity the respondent should be left to the resources of her immorality for her maintenance. On this line of reasoning, the learned Subordinate Judge ultimately, directed the petitioner, under S.25 of the Act, to pay to the respondent a sum of Rs. 12.50 per month as maintenance so long as the respondent remains unmarried. 11. This order was challenged by the petitioner before the learned District Judge, Ernakulam in C. M. A. 38/63. There again, though the quantum also was challenged by the petitioner, ultimately the main attack as against the order of the learned Subordinate Judge was that no alimony at all should have been directed to be paid under S.25 of the Act, for the reason that adultery was the ground for granting judicial separation. 12. That aspect is considered by the learned District Judge, and after referring to the decision of the Calcutta High Court in Amar Kanta Sen v. Sovana Sen (AIR. 1960 Cal. 438) relied upon by the learned Subordinate Judge, the District Court takes note of the fact that there is another Division Bench Judgment of the same High Court reported in Sachindra Nath v. Banamala (AIR. 1960 Cal. 575) which latter decision has taken the view that under such circumstances, the prayer of the wife for alimony is to be refused. 13. 1960 Cal. 575) which latter decision has taken the view that under such circumstances, the prayer of the wife for alimony is to be refused. 13. The learned judge is of the view that the Division Bench Judgment of the Calcutta High Court can be distinguished on the ground that the learned judges of the High Court were dealing with a case where the wife was leading an adulterous life even when the application for divorce was filed. The learned judge is of the view that in this case, inasmuch as that circumstance is not present and as only a stray instance of moral laxity has been proved against the wife and inasmuch as there is nothing to show that the respondent continues to lead an adulterous life, her request for being paid starving allowance, at any rate, will have to be allowed. No doubt the learned District Judge says that if and when the petitioner is able to establish that the respondent has lapsed into immorality again, he can get relief by moving the court for the said purpose. Therefore both the courts have ultimately held that, notwithstanding that the allegation of adultery was the foundation of the claim made in O. P. 3/58 and that claim was also accepted by the court for granting judicial separation, nevertheless even under those circumstances the respondent is entitled to be paid at any rate, a starving maintenance under S.25 of the Act. 14. This view expressed by both the courts is challenged by Mr. T. Chandrasekhara Menon, learned counsel for the petitioner-husband. 15. Mr. K. Neelakanta Menon, learned counsel for the respondent-wife supports the orders of the subordinate courts. Even going by the wording of S.25 of the Act, jurisdiction is given to the court, at the time of considering an application for grant of maintenance, to take into account the conduct of the parties, and in this case, both the courts have adverted to the aspect that there has been a stray instance of lapse on the part of the respondent, but nevertheless that conduct by itself is, according to both the courts, not sufficient to disable her from claiming maintenance. 16. 16. Therefore the question arises as to whether in a case where a charge of adultery is the very foundation of a claim for asking judicial separation and that claim is accepted by a court notwithstanding that rinding, the respondent against whom that finding has been entered, can claim, as of right, to be awarded maintenance under S.25 of the Act. 17. It is necessary now to refer to some of the provisions contained in the Hindu Marriage Act, 1955 Act 25/1955 as well as the Hindu Adoptions and Maintenance Act, 1956 Act 78/1956. The first Act namely 1955 Act, provides in S.10, the various grounds, under which a party can make an application to the court seeking judicial separation. The application in this case, I am informed, was filed on the basis of an allegation made under clause (f) of S.10(1) of this Act, on the ground that, after the solemnization of the marriage, the respondent herein, had sexual intercourse with a person, other than her husband. It may also be stated at this stage, that the court which considered O. P. 3/58 filed by the petitioner has accepted this allegation to be true and has found that the respondent is guilty of the conduct mentioned in clause (f) of S.10(1) of this Act. 18. S.13 deals with divorce; and sub-section (1) provides for an application being presented by either a husband or wife for dissolving a marriage by decree of divorce as well as the various grounds which can form the basis of that application. Here again it may be pointed out that O. P. 5/62 filed by the petitioner for granting a decree of divorce was under S.13 (1) (viii) of this Act to the effect that the respondent has not resumed co-habitation for a period of two years or upwards after the passing of a decree for judicial separation against that party which in this case was on 12 21960. 19. S.25 of this Act deals with directions being given by the court for payment of alimony and maintenance at the time of passing a decree under this Act. 19. S.25 of this Act deals with directions being given by the court for payment of alimony and maintenance at the time of passing a decree under this Act. Sub-section (1) of S.25 is as follows: "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." It may be noted that in this sub-section, apart from various other matters to be taken into account, the court is also to take into account "the conduct of the parties", when a request is made for payment of alimony and maintenance. Sub-section (2) provides for the court varying, modifying or rescinding any order already passed under sub-section (1) on being satisfied that there is a change in the circumstances of either party at any time after the order was passed under subsection (1). But there is another special provision contained in sub-section (3) making it obligatory on the court to completely cancel an order passed under sub-section (1). Under the three circumstances mentioned in that sub-section, the court has to cancel an order passed under S.25 (1). Those circumstances are: (a) The party in whose favour maintenance is awarded has remarried; (b) If that party is the wife, that she has not remained chaste; and (c) If such party is the husband, that he has had sexual intercourse with any woman outside wedlock. It is also necessary to not one of the circumstances, if established, when the court has to completely revoke the order of maintenance, and that is the one indicated above by contingency No. (b) as I will call it. It is also necessary to not one of the circumstances, if established, when the court has to completely revoke the order of maintenance, and that is the one indicated above by contingency No. (b) as I will call it. That is, if the party in whose favour an order for maintenance has been passed is the wife, and if she has not remained chaste, the order for maintenance shall be cancelled. 20. These are the provisions which are to be noted in the Hindu Marriage Act of 1955. Therefore from what is stated above, it will be seen that adultery or leading an unchaste life on the part of the respondent to an application, can form the basis for making a request to the court for judicial separation. See S.10(1)(f). Similarly it will be seen that one of the grounds for asking for divorce under S.13 is the fact that the respondent is living in adultery-vide S.13(1)(i). 21. Again sub-section (3) of S.25, makes it mandatory on the part of the court to revoke an order for maintenance passed under sub-section (1) of S.25, if the wife, who is the recipient of maintenance, has not remained chaste after the order has been passed. That is, even after a decree for judicial separation or divorce has been passed, if subsequent to the date of fixing the alimony under subsection (1) of S.25 the wife does not lead a chaste life, the penalty, is the cancellation of the order of maintenance passed by the court. 22. There is only one provision to be referred to in the Act 78/1956 and that is S.18. S.18 deals with the right of maintenance of wife, and sub-section (1) provides that subject to the provisions of that section, a Hindu wife shall be entitled to be maintained by her husband during her life time. But sub-section (2) also provides for certain contingencies which entitle the Hindu wife, to live separately from her husband without forfeiting her claim to maintenance. Even here it will be seen that under sub-section (3) of S.18 it is provided that a Hindu wife shall not be entitled to separate residence and maintenance from her husband, if she is unchaste or changes her religion. Even here it will be seen that under sub-section (3) of S.18 it is provided that a Hindu wife shall not be entitled to separate residence and maintenance from her husband, if she is unchaste or changes her religion. Therefore it will be seen that even under this section, the same privilege that is granted to the wife contemplated under subsection (2) of S.18 is not shown to the wife referred to in sub-section (3) and that wife, if she is unchaste; will not be entitled to separate residence and maintenance.1 am only referring to this aspect again to show that the statute emphasises the disability of a wife who is unchaste in respect of several of her rights otherwise guaranteed in law. 23. In my opinion, the orders of both the courts over-ruling the objections of the petitioner regarding the right of the respondent to claim maintenance cannot be sustained. I have already referred to the various provisions contained in the Act of 1955, and those sections clearly contemplate that the wife during her matrimonial relationship must be absolutely faithful to the husband. It also provides for the husband moving the court for judicial separation or divorce if he is able to establish that his wife has been unfaithful during the matrimonial relationship. 24. Then the question is, whether irrespective of the fact that an allegation of unchastity formed the ground for asking for judicial separation, and which was granted on that ground will nevertheless enable the wife, in this case, the respondent, to claim maintenance under S.25 of the Act. I have already referred to the provisions contained in sub-section (3) of S.25 wherein absolute power and jurisdiction is given to a court to cancel an order for maintenance, if the wife becomes unchaste after the passing of the order. That itself in my view, gives an indication that the unchastity of the wife, if it had been established, will certainly be a very vital and crucial circumstance to be taken into account as "the conduct of the parties", when the court is called upon, under S.25(1) to exercise jurisdiction, for the grant of alimony or maintenance. The "conduct of the parties", referred to in S.25 (1) in my opinion, must necessarily refer to the conduct of the parties during the matrimonial life. The "conduct of the parties", referred to in S.25 (1) in my opinion, must necessarily refer to the conduct of the parties during the matrimonial life. In this case, it cannot be disputed that the very ground on which judicial separation was asked for and granted, is the unchastity of the respondent. If the contention of the learned counsel for the respondent that at the stage of considering a request under S.25(1) the court is to ignore this circumstance, and nevertheless direct the husband to pay maintenance, is to be accepted then what is the object, when the statute itself says that if later on the party is shown to be unfaithful that order can be cancelled? That is, a circumstance which will entitle the husband to have the award of maintenance cancelled under S.25(3) of the Act, is requested by the learned counsel for the respondent, to be ignored at the time when the application is considered under S.25(1) of the Act. 25. In my opinion, if a subsequent conduct of the wife who has become unchaste can form the basis, for cancellation of an order passed under S.25(1), a finding recorded during the judicial separation proceedings, regarding the unchastity of the wife must and should be taken into account even in the first instance, when an order is being passed under S.25(1) of the Act. Otherwise it will lead, in my opinion, to a very incongruous situation namely, that it is only when a wife becomes unchaste after the award of maintenance she is disabled from continuing to receive that maintenance, whereas a wife who has been held guilty by the court of unchastity even in the main proceedings, will nevertheless be entitled to get maintenance, in the first instance, under S.25(1) of the Act. 26. In my opinion, the same matters, if they were prevalent at the earlier stage, must be taken into account, even in the first instance when the wife files an application under S.25(1) of the Act. The reasoning of the lower courts that in this case, it is only a stray act of unfaithfulness does not appeal to me at all, and the further reasoning of the courts that what is being granted by the orders, is a starving allowance for such a wife also does not appeal to me. Either a party is entitled to claim maintenance or alimony. Either a party is entitled to claim maintenance or alimony. If so, her claim must be considered on judicial grounds having regard to the various matters referred to in S.25(1) of the Act. If there is a legal bar, in my opinion, there is no question of awarding any amount whatsoever, by whatever name it may be called in this case by the first court as starving allowance and by the appellate court as subsistence allowance. 27. Mr. K. Neelakanta Menon, learned counsel for the respondent no doubt drew my attention to decisions regarding the interpretation to be placed on the expression "is living in adultery" occurring in S.13 (1) (i) of the Hindu Marriage Act, 1955. For instance, the learned counsel referred me to the decision of the Madhya Pradesh High Court in Gitabai v. Pattoo (AIR. 1966 Madhya Pradesh 130) wherein the learned judges, if I may say so with respect, have quite correctly pointed out the distinction between the matters covered by S.10 (1) (f) and S.13 (1) (i) of the Hindu Marriage Act, 1955. In my opinion, it is not necessary to go into that aspect in this case, because admittedly the petitioner did not make any allegation, that the respondent is living in adultery and on that ground, as mentioned in S.13 (1) (i), filed the application for divorce namely, O. P. 5/62. 28. The petitioner's averment was only to the effect that a judicial separation has been ordered in O. P. 3/58 accepting the case of the petitioner that the respondent has, after the solemnisation of the marriage, had sexual intercourse with the person mentioned in the order passed in O. P. 3/58 and thus bringing the case within S.10 f 1) (f) of the Act. The petitioner under those circumstances, if he is able to establish the conditions mentioned in clause (viii) of S.13 (1) is entitled to ask for divorce. I am only referring to this aspect because it will be unfair even to the respondent to attribute or much less find any act of adultery after the date of the order in O. P. 3/58; and Mr. I am only referring to this aspect because it will be unfair even to the respondent to attribute or much less find any act of adultery after the date of the order in O. P. 3/58; and Mr. K. Neelakanta Menon is perfectly right in his contention that regarding the question as to whether his client was living in adultery, even after the date of the order in O. P. 3/58 and at the time when the court was considering the grant of divorce and the grant of alimony under S.25 (1) of the Act, there was no occasion whatsoever to consider these aspects. 29. But the main contention of the petitioner in contesting the claim of the respondent for being awarded maintenance under S.25 (1) of the Act was that it was her conduct that led to the breaking up of the union and necessitated the petitioner filing an application under S.10 (1) (f) of the Act which in view of the circumstances if established enabled him to obtain a divorce under S.13(1) (viii) of the Act. 30. But in my opinion, it was not necessary for the petitioner to make any such allegation nor for the court to investigate those aspects in the Divorce Petition O. P. 5/62, because the ground on which the petitioner contests the claim of the respondent relates to the conduct of the respondent which led to the filing of the application by the petitioner under S.10 (1) of the Act. 31. In my opinion, the expression "and the conduct of the parties" occurring in S.25 (1) of the Act clearly relates to the conduct of the parties during the matrimonial relationship, and inasmuch as there is a finding of the court in O. P. 3/58 about the matters referred to in S.10(1) (f) of the Act the respondent must be considered to be the party who led to the break-up of the marriage alliance. That circumstance is taken in by "the conduct of the parties" which is a relevant factor to be adverted to by the court in considering a claim under S.25 (1) of the Act. 32. I will briefly refer to the two decisions of the Calcutta High Court which have been adverted to by the learned District Judge in his order. That circumstance is taken in by "the conduct of the parties" which is a relevant factor to be adverted to by the court in considering a claim under S.25 (1) of the Act. 32. I will briefly refer to the two decisions of the Calcutta High Court which have been adverted to by the learned District Judge in his order. Before that, it may also be stated that based upon the English statute, there are certain wide observations contained in some of the commentaries in the text books dealing with this particular Act to the effect that the discretion vested in the court under S.25 (1) is very wide and that in the exercise of that discretion a court may make an order in favour of a wife even if a decree for judicial separation has been passed against her on the ground of adultery or cruelty or desertion on her part. It is not necessary to consider a case of cruelty or desertion. But the question is as to whether the court has got that discretion even in cases where a separation has been ordered as against the wife on ground of adultery and whether go out of maintenance is justified by the provisions of the Act. Most of the commentaries refer to the provisions of the Indian Divorce Act or to the English Matrimonial Causes Act, 1950 and as I will presently show, the provisions contained in the Indian Divorce Act, does not provide for the contingencies dealt with under S.25 (3) of the Hindu Marriage Act. 33. One of the decisions referred to by the learned District Judge is that of a single judge of the Calcutta High Court, Mr. Justice Datta reported in Amar Kanta Sen v. Sovana Sen (AIR. 1960 Calcutta 438). No dout in that decision, the learned judge finds that the dissolution of marriage by way of divorce was granted on the ground of adultery of the wife; nevertheless the wife made an application for grant of maintenance under S.25 (1) of the Hindu Marriage Act. Her claim, so far as I could see, was based upon the fact that under Hindu law she was entitled to be maintained by her husband, so long as she lived a decent life and therefore an obligation to maintain her was a personal and moral obligation of the husband. 34. Her claim, so far as I could see, was based upon the fact that under Hindu law she was entitled to be maintained by her husband, so long as she lived a decent life and therefore an obligation to maintain her was a personal and moral obligation of the husband. 34. That claim was opposed on behalf of the husband on the ground that when a divorce has been granted on the ground of wife living in adultery she is not entitled to claim maintenance under S.25 (1). In considering this question, the learned judge proceeds on the basis, that S.25 follows more or less S.37 of the Indian Divorce Act, 1869-Act 4 of 1869; and the learned judge notes only a difference that the Hindu Marriage Act imposes an obligation on the wife also to maintain her husband. 35. The learned judge again proceeds on the basis that the Indian Divorce Act, 1869 is itself modelled on the Matrimonial Causes Act, 1857. 36. After adverting to some of the English decisions quoted by the learned judge, the High Court ultimately comes to the conclusion that in English law, under such circumstances, maintenance can be awarded. Then the learned judge adverts to what was the position of an unchaste wife under the Hindu law, and in that connection the learned judge is of the view that under Hindu law, an unchaste wife was entitled to a bare or starving allowance. 37. Proceeding on this basis, that this was the state of the law governing Hindus prior to the Hindu Marriage Act, 1955, and on the basis that S.25 of the Hindu Marriage Act, more or less follows S.37 of the Indian Divorce Act, 1869, the learned judge finally comes to the conclusion that on the basis of the English authorities referred to by him, the wife though unchaste, is entitled to a bare subsistence allowance or starving allowance. No doubt the learned judge also states that if such a wife is earning a living and is not in a helpless position, her right to maintenance even of the bare subsistence disappears, because the learned judge emphasises that the allowance is meant to prevent 'starvation'. On this basis, the learned judge ultimately directed payment of alimony at the sum mentioned in his order. 38. On this basis, the learned judge ultimately directed payment of alimony at the sum mentioned in his order. 38. No doubt prima facie this decision supports the claim of the respondent, though it may be seen that the decision arose in the case of a divorce granted under S.13 (1) (i) of the Hindu Marriage Act, 1955. 39. If I may say so with great respect, the reference to what the law was prior to the passing of the Hindu Marriage Act, 1955, namely the Hindu Law, is not justified because of the provisions contained in S.4 of the Hindu Marriage Act, 1955. S.4 categorically states that the Act, except as otherwise provided for over-rides any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act. Therefore it will be seen that so far as claims are made under the Act, rights of parties will have to be adjudicated upon the basis of the provisions contained in the statute itself. 40. Further if I may say so with respect, the view of the learned judge that S.25 of the Hindu Marriage Act follows closely S.37 of the Indian Divorce Act, 1869 is also open to question, because I have gone through the entire provisions of the Indian Divorce Act, 1869; and the scheme of that Act is entirely different. And so far as I could see, there is no provision, corresponding to sub-section (3) to S.25 of the Hindu Marriage Act, in S.37 of the Indian Divorce Act, 1869. Nor is it necessary for me to elaborately consider the provisions contained in the English statutes, because it will be seen, even in England under common law, the position appears to be that if a wife has committed adultery she must be considered by that action to have forfeited her common law right to be maintained unless her adultery was condoned or connived at, and it is also recognised that it is only by virtue of the divorce legislation obtaining in England that such a wife is enabled to get maintenance at all, and even in such cases the court will consider whether she ought to have maintenance. That principle is established by the Court of Appeal in the decision reported in Clear v. Clear (1958-2-All England Law Reports 353). That principle is established by the Court of Appeal in the decision reported in Clear v. Clear (1958-2-All England Law Reports 353). The particular passage that 1 have referred to is to be found at page 357 of the Reports. 41. I am only referring to this aspect to show that there has been no elaborate consideration of the position in English law in such cases by the learned judge of the Calcutta High Court in Amar Kanta Sen v. Sovana Sen (AIR. 1960 Cal. 438). The learned judge ultimately is of the view that what is to be given under those circumstances is a starving allowance. I have already pointed out that a party has to establish a right, under S.25 (1) to be awarded maintenance. If that right is established, then the question will only be regarding the quantum of maintenance. If there is no such legal right, by whatever term one may call it, allowance, starving maintenance or similar expressions in my opinion, such award will be opposed to the provisions of the statute. Therefore, if I may say so with respect, I am not inclined to adopt the reasoning of the learned judge in the decision reported in Amar Kanta Sen v. Sovana Sen (AIR. 1960 Cal. 438). 42. As will be seen, even the Calcutta High Court has taken a different view in Sachindra Nath v. Banamala (AIR. 1960 Calcutta 575). There also the divorce was granted at the instance of the husband under S.13 (1) (i) of the Hindu Marriage Act, 1955. In fact, the person with whom the wife was stated to be living an adulterous life was the co-respondent in that application. The court accepted the allegations made against the wife and ultimately granted divorce. The wife made an application for the grant of maintenance under S.25 (1) of the Hindu Marriage Act. That claim was opposed by the husband on the ground that inasmuch as the wife was found by the court, to be leading an adulterous life, she is not entitled to any maintenance at all. The learned judges, Mr. Justice Guha and Mr. Justice Banerjee are of the opinion that there is great deal of substance in the contention advanced on behalf of the husband. The learned judges, Mr. Justice Guha and Mr. Justice Banerjee are of the opinion that there is great deal of substance in the contention advanced on behalf of the husband. After referring to S.25 of the Hindu Marriage Act, the learned judges express the view that sub-section (1) of S.25 no doubt prima facie does not place any such limitation as urged on behalf of the husband. But the learned judges emphasise that sub-section (3) of S.25 clearly gives an indication supporting the contention of the husband. The learned judges, after reference to the provisions contained in sub-section (3) of S.18 of the Hindu Adoptions and Maintenance Act, 1956-Act 78/56, ultimately observed that unchastity on the part of a woman, as well as sexual intercourse of a man with a woman outside wedlock are sins against the ethics of matrimonial morality in this country. The learned judges ultimately observed that in the exercise of judicial discretion, expressly vested in Courts of law under S.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. Ultimately the learned judges set aside the order of the lower court granting maintenance in favour of the wife. No doubt, this decision has been taken note of by the learned District Judge; but the learned District Judge is of the view that this decision itself recognises a discretion in a court to award maintenance even under such circumstances, and that in that particular decision, inasmuch as the wife was living in adultery with the co-respondent even at the time when the application for divorce was made, the grant of maintenance was refused as absolutely unjustified. It is the view of the learned District Judge that such circumstances are not present in this case. 43. I am not inclined to accept the distinction made by the learned District Judge, regarding the principles laid down by the Calcutta High Court in the decision just now referred to. The latter decision will clearly show that the earlier decision of Mr. Justice Guha, though not specifically referred to, has not found favour at the hands of the Calcutta High Court itself. The latter decision will clearly show that the earlier decision of Mr. Justice Guha, though not specifically referred to, has not found favour at the hands of the Calcutta High Court itself. On the other hand, the Calcutta High Court has taken the view that in considering a claim under S.25(1) of the Hindu Marriage Act, the unchastity of the wife is a Very relevant matter to be taken into account for purposes of considering her claim. Even here, if I may say so with respect, the emphasis that is laid by the statute regarding the utmost fidelty as between the two spouses during the matrimonial alliance has not been given as much importance by the Calcutta decision as is borne out by the various provisions of the statute referred to above. At any rate, the learned judges are positive that there is a discretion in the court and that discretion ought to be exercised against a person whose conduct is reproachable. 44. Even considering the question from that point of view viz., that the courts have got a discretion, the orders of the two courts cannot be sustained because both the courts proceed on the basis that a mere stray act of lapse, on the basis of which no doubt the petitioner asked for judicial separation and obtained it, is not such a vital circumstance to be taken into account, at the time of passing an order under S.25(1) of the Act. From this line of reasoning adopted by the two courts, it is clear that they have not exercised the discretion judicially. 45. That the position in English law is entirely different, is also recognised by the decision of the Allahabad High Court in W. E. Mc Gowan v. John George Mc Gowan (ILR. 38 Allahabad 688). 46. Therefore to sum up, I have already indicated that a right is given to the husband to invoke the jurisdiction of the court under S.10(1)(f) and ask for judicial separation, if he is able to establish that his wife had sexual intercourse with another person. Again S.13(1)(i) gives a similar right for asking for a divorce if the wife is living in adultery. Again S.13(1)(i) gives a similar right for asking for a divorce if the wife is living in adultery. S.23(1)(b) makes it obligatory on the part of the court to take into account the fact that the petitioner before it, has not in any manner been accessory to or connived at or condoned the act or acts complained of, when judicial separation is asked for under S.10(1)(f) or divorce is asked for under S.13(1)(i) of the Act. 47. S.25 has already been referred to by me; and it emphasises 'the conduct of the parties", which I have already indicated must mean "the conduct of the parties" during their matrimonial life and court must have due regard to that factor. Sub-section (3) makes it obligatory on the part of the court to completely cancel an order for maintenance made under S.25 (1), if it is established that the person, who receives the maintenance, if she is the wife, "has not remained chaste". I have also referred to the provisions contained in sub-section (3) of S.18 of Act 78/1956. The provisions referred to in the Hindu Marriage Act of 1955 in my opinion, places considerable emphasis on the wife being chaste not only during the subsistence of the matrimonial relationship, but also after the decree, so as to make her eligible to continue to get the maintenance. If the statute insists, as it does in S.25 (3) that notwithstanding the decree for judicial separation passed, the woman must remain chaste in order to get the maintenance continuously, in my opinion it is only reasonable to expect, having due regard to the scheme of the statute, that the same conduct is to be insisted upon during the period when the matrimonial alliance subsists and at the time when maintenance is being considered under S.25 (1). If the circumstance of the woman becoming unchaste subsequently after the parties are living separately, should be taken into account, as provided for under S.25 (3) for cancellation of an order of maintenance, in my opinion, it is absolutely impossible to accept the contention of the learned counsel for the respondent that unfaithful conduct, which formed the basis for granting judicial separation, under S.10 (1) (f) of the Act by the court, is to be ignored for the purpose of S.25 (1). 48. 48. In fact, I am prepared to hold that if a decree for judicial separation has been passed, as in this case, in favour of the husband on the basis of a finding recorded as against a wife under S.10(1) (f) of the Act, that wife will not be entitled to claim any maintenance under S.25 (1). S.25(1) is a general provision dealing with provision being made for permanent alimony and maintenance at the time of passing a decree. The decree passed may be one of judicial separation or of divorce and that may be granted on any of the grounds mentioned in Sec.10 (1) or S.13; it may have been granted on grounds other than those mentioned in S.10 (1) (f) or S.13 (1) (i) of the Act. If so, in such cases, the question of unchastity of the wife does not come into the picture when a claim is considered under S.25(1). S.25(1) in my opinion, contemplates the case of a claim of wife who is chaste at that time and who has been chaste during the matrimonial relationship. This view finds support from the expression "if such party is the wife, that she has not remained chaste" occurring in S.25 (3). S.25 (3) proceeds on the basis that the wife was chaste when the order under S.25(1) was passed, but has not remained chaste after the date of the order under S.25(1). If the wife was found guilty of the act referred to in S.10 (1) (f), as in this case, that means she was not chaste even at the time, she makes a claim under S.25 (1). There is no question of such a wife "not remaining chaste" after the date of an order under S.25 (1) because she is already unchaste. If she was already unchaste, there is no question of her becoming unchaste for a second time for the purpose of S.25 (3). Therefore in my opinion, the respondent in this case, was not entitled to make any claim for permanent alimony and maintenance under S.25 (1) of the Act. 49. I am well aware of the contention of the learned counsel for the respondent that there has been no allegation by the petitioner in O. P. 5/62, nor any investigation by the court about his client being unchaste after the passing of the order in O. P. 3/58. 49. I am well aware of the contention of the learned counsel for the respondent that there has been no allegation by the petitioner in O. P. 5/62, nor any investigation by the court about his client being unchaste after the passing of the order in O. P. 3/58. I have already indicated that that circumstance in any manner does not advance the case of the respondent. 50. Therefore to conclude, the brushing aside by the two courts, the contention of the petitioner on the ground that it is only a stray act of lapse that the respondent has been found guilty of and what is allowed is bare subsistence allowance or starving allowance and in that view, decreeing the claim of the respondent, cannot be sustained. 51. The result is, the orders of both the courts will stand set aside to the extent to which they have awarded maintenance to the respondent, under S.25 (1) of the Act. The decree for divorce passed by both the courts will stand; but I. A. 61/1963, Sub-Court, Ernakulam filed by the respondent will stand dismissed and this C. R. P. allowed to the extent indicated above. Parties will bear their own costs throughout. Allowed.