JUDGMENT - G.N. VAIDYA, J.:---The above first appeal is filed by the wife against her husband challenging an order of maintenance directing payment of Rs. 300/- to her and Rs. 50/- each to her two sons, Deepak and Uday, on the ground that having regard to the position and status of the parties, reasonable wants and the grounds of the decree for judicial separation passed in her petition and the needs of the children, the sum of Rs. 400/- ordered to be paid by the husband is inadequate. 2. The marriage was celebrated on May 10, 1955 at Umreteh, according to Hindu Vadic rits. Deepak was born on December 7, 1962 Uday was born on December 25, 1966. A third son was born but unfortunately he died a day after his birth. The appellant had described the circumstances in which the husband and wife came to love each other and married. It seems that the appellant and the respondent came to know each other in or about the year 1952 on the occasion of the thread ceremony of the wifes cousin. The husbands house in Umreteh was opposite to the wifes mothers house. The appellants mother was at that time a teacher in primary school in Umreth. The husband was studying in L.M. Pharmacy College at Ahmedabad. The wife also went to Ahmedabad for further prospects of her studies and joined S.N.D.T. College. 3. It is not necessary to set out all other circumstances which let to the marriage because on account of disputed between husband and wife, the wife filed a petition for judicial separation on the ground of desertion and cruelty. It was not opposed by the husband and a decree for judicial separation was passed on October 7, 1970. 4. In the meanwhile, the husband had also filed a petition for restoration of conjugal rights on October 14, 1967 on the ground that the wife had separated herself without any reasonable cause. In that petition, on a notice of motion taken out by the wife, interim maintenance of Rs. 500/- for the wife and Rs. 500/- for the two sons was ordered on June 18, 1968. The husband had filed an appeal against that order in this Court but he withdraw the appeal on February 18, 1969. He also withdrew the petition which he had filed on February 18, 1969. 5. 500/- for the wife and Rs. 500/- for the two sons was ordered on June 18, 1968. The husband had filed an appeal against that order in this Court but he withdraw the appeal on February 18, 1969. He also withdrew the petition which he had filed on February 18, 1969. 5. The wife, therefore, took out a notice of motion in her petition on February 3, 1970 for interim maintenance at the rate of Rs. 1,338/- per month the particulars of which were supplied by her attorneys to the husbands Advocate as follows :--- Statement of Expenses required Rs. 162.00 milk. Rs. 21.00 Eggs. Rs. 300.00 Vegetables, ghee, Spices, etc. Rs. 100.00 Fresh Fruits. Rs. 100.00 Dry Fruits. Rs. 100.00 Doctors bills, medicines, tonics. Rs. 100.00 Transport. Rs. 50.00 Dhobi Washing charges. Rs. 100.00 Entertainment, toys, etc. Rs. 20.00 Electricity. Rs. 25.00 Fuel. Rs. 50.00 Flat maintenance charges. Rs. 50.00 Servant. Rs. 15.00 books. Rs. 100.00 Miscellaneous and unforeseen expenses. .......................... Rs. 1,338.00 .......................... In that notice of motion affidavits and counter affidavits were filed by the husband and wife. 6. During the pendency of this notice of motion and the wifes petition for judicial separation, the husband lost his job with Indian Scherring Limited, who terminated and called upon him a vacate the Companys flat and to return the companys car. The wife then filed a counter affidavit stating that the husband manoeuvred the situation with a view to avoid the liability to pay maintenance. The wife is a graduate of S.N.D.T. university. The husband is a graduation Pharmacy. On October 7, 1970 on hearing the parties and recording the evidence of the wife which was not challenged, the learned Judge in the City Civil Court first passed a decree in favour of the wife for judicial separation and giving her custody of the two minor sons Deepak and Udaya. 7. Thereafter the learned Judge proceeded to deal with the notice of motion for maintenance and passed an order on the same day directing the husband to pay a sum of Rs. 7. Thereafter the learned Judge proceeded to deal with the notice of motion for maintenance and passed an order on the same day directing the husband to pay a sum of Rs. 400/- p.m. as permanent alimony towards the maintenance of the wife and the two children after recording the consent of the parties to the effect that the husband will be entitled to visit the house of the wife every Saturday and take both children at 5 p.m. agreeing, however, to bring them back to the wifes house at 7 p.m. The husband has not challenged this order. It is only the wife who has filed the above first appeal against the said order of maintenance submitting that it is inadequate. 8. Mr. Morje, the learned Counsel appearing for the wife, has urged: (1) that the amount of alimony and maintenance of Rs. 400/- p.m. granted by the learned Judge in the City Civil Court is utterly inadequate; (2) that the learned Judge erred in law in not granting alimony with effect from February 19, 1969 as prayed for by the wife in her notice of motion; and (3) that the learned Judge erred in not ordering the husband to pay costs. 9. Before dealing with these contentions I found it necessary to deal with the duty of the Court under section 23(2) of the Hindu Marriage Act which runs as follows :--- "Before proceeding to grant any relief under this Act, it shall be the duty of the Court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties" There is nothing in the Rozanama of the lower Court to show that the lower Court tried to do its duty under section 23(2). The learned Counsel appearing for the husband, however, stated before me that some attempts were made when the proceedings were pending before the lower Court to bring about reconciliation between the husband and wife but they had failed. Even if they had failed, it was the duty of the lower Court to try to bring about reconciliation. It is the duty of the Court in every case to make an attempt to reconcile the parties. Even if they had failed, it was the duty of the lower Court to try to bring about reconciliation. It is the duty of the Court in every case to make an attempt to reconcile the parties. The modern concept of Hindu Marriage is based on the fundamental assumption that the institution of marriage is not merely a sexual union between a man and woman sanctioned by law and morality and religion. It is also an institution for bringing up children born of the husband and wife as well as the couple can, so as to make the children good future citizens of India. 10. The Learned Judge in the City Civil Court failed to notice the provisions of section 23(2) of the Hindu Marriage Act in dealing with this case. I, therefore, asked the two Counsel appearing for both the parties to ask the husband and wife to liquidate the differences between them so as to give the benefit of the love of both the parents to the two sons who are studying in schools. The learned Advocate then requested me to give the advice in my Chamber. Accordingly, I retired to Chamber and saw the husband and the wife with the two children. I tried to know what was the unfortunate cause for the breaking up of this family. The two children wanted both father and mother. The wife wanted to live with the husband. The husband had no objection to live with the wife and children provided the mother of the wife did not interfere with the matrimonial affairs and family affairs of her husband. He further wanted the mother of the wife not to be in Bombay. The wife on the other hand stated that as she is the only daughter of the mother, who is a widow and a retired Gujarati Primary School teacher, it would be impossible for her to ask her mother to leave Bombay or for her mother to leave Bombay without taking care of herself or being in a position to help the wife in case of difficulties. When I discovered that the husband was suffering from invincible repugnance to the presence of the mother-in-law in Bombay, I found it impossible to carry the matter further. Later I asked the Counsel for both the wife and the husband to find out a method of bringing about reconciliation. They too failed. When I discovered that the husband was suffering from invincible repugnance to the presence of the mother-in-law in Bombay, I found it impossible to carry the matter further. Later I asked the Counsel for both the wife and the husband to find out a method of bringing about reconciliation. They too failed. Therefore, the matter had to be proceeded with. 11. But before dealing with the matter with regard to the three points urged before, me, namely, (1) the quantum of maintenance, (2) the date from which the maintenance is to be made payable and (3) costs, I think that it should be noted that I decide this case considering only the affidavits filed by the husband and the wife with the hope that one day the husband and wife may reconcile themselves and the decree passed for judicial separation as well as the decree which I am going to pass for maintenance will have no meaning at all as they will lapse according to the well settled principles of matrimonial law on such reconciliation. 1. Principles governing quantum of maintenance and the date from which maintenance can be awarded. 12. It is in this background that the question of quantum of maintenance must be considered. It seems that the lower Court failed to notice the relevant provisions of the Hindu Marriage Act, 1955 and the Hindu Adoption and Maintenance Act, 1956. The question of maintenance is now regulated so far as interim maintenance is concerned under section 24 of the Hindu Marriage Act. Permanent alimony and maintenance are regulated by section 25 of the Hindu Marriage Act, 1955. These are supplemented by the provisions of section 23 of the Hindu Adoption and Maintenance Act, 1956, along with section 18 of that Act which declares that a Hindu wife, whether married before of after commencement of this Act, shall be entitled to be maintained by her husband during her lifetime. Section 20 declares that, subject to the provisions of the section, a Hindu is bound, during his or her lifetime, to maintain his or her legitimate children and his or her aged or infirm parents. These sections, however, have not laid down the principles regulating the quantum of maintenance and the date from which the maintenance is to be awarded by the Court. 13. These sections, however, have not laid down the principles regulating the quantum of maintenance and the date from which the maintenance is to be awarded by the Court. 13. The quantum of maintenance and the date from which it is to be made payable are, according to the matrimonial law, in the discretion of the Court. Lending authority on the point is the decision of Privy Council in (Ekradeshwari Bahuasin v. Homeshwar Singh)1, 56 Indian Appeals 182 where Lord Shaw stated the principles regulating the discretion of the courts in determining the quantum of maintenance as follows :--- "The ground, however, for attack upon the concurrent findings of the courts below, is said to be some error of legal principle, and (somewhat inconsistently with this) it was complained that it was difficult to find any legal principle upon which the maintenance allowance had been fixed. Upon this last their Lordships observe that it may be so, for the simple reason that maintenance depends upon a gathering together of free estate the past life of the married parties and families, a survey of the condition and necessities and rights of the member, on a reasonable view of change of circumstances possibly required in the future, regard being of course, had to the scale and mode of living, and to the age, habits, wants and class of life of the parties. In short, it is out of a great category of circumstances, small in themselves, that a same and reasonable induction is to be made by a Court of law in arriving at a fixed sum." At page 187 Lord Shaw discussed the date from which arrears of maintenance should be given as follows:--- "There is, however, a further point in the case namely, arrears, in other words, the date from which a maintenance allowance should start. There are four possible periods-namely, first from the death of the deceased husband (October 21, 1916), that is to say even during the residence on the alleged limited style of life in his former establishment second from the date of the change of the appellant to her fathers residence, a period which is variously state as from the end of 1920 to the end of 1921. To this variation subsequent reference will be made. To this variation subsequent reference will be made. Third, from the date of suit, namely, April 23, 1922, and fourth, from the date of decree, namely, March 10, 1924." 14. Their Lordships are clearly of opinion that to start the maintenance at the last mentioned date, as has been done in the Court below, would be and inadequate recognition of the widows right to maintenance. It is indeed an inversion of correct procedure in the case of a continuing right. In any view the right could not be post-dated from the institution of the suit onwards. This, besides being erroneous in law, would be a daily temptation to delay in litigation by postponing the date of liability to that of final decree. 15. Payment from the date of suit being thus granted the question is whether arrears prior to that date are exigible. In the Boards opinion such arrears, if they truly exist, fall within the range of the widows right to maintenance. When a widows receipt of maintenance in residence in her husbands establishment ceases contemporaneously with her institution of a suit for maintenance the point almost settles itself. When, however, as is the case here, there is no such exact concurrence of dates, it is the duty of the Court to consider the whole circumstances of the situation in pronouncing a decree for arrears. 16. In the present case the Court is met by a demand by the appellant of a somewhat peculiar kind. It is to the effect that a decree should include arrears of maintenance not only from the date when she left her husbands house to reside with her father, as he has since done, but should date from her husbands death and include the time that she resided in her husbands establishment. The result of conceding this would be a kind of cross account on the one side maintenance quantified in money as from the husbands death; on the other side of a credit being given for maintenance as actually received with its incidental costs. In the opinion of the Board there is no legal-justification for such a treatment of the case and the argument of the appellant fails. In the opinion of the Board there is no legal-justification for such a treatment of the case and the argument of the appellant fails. While their Lordships do not exclude an extreme case, say, of a widow being kept under circumstances of extreme penury and oppression, such a case must be treated as most exceptional, and would require unimpenchable proof. It is sufficient to say that nothing like that has been established in the present case. 17. On the other hand, the argument presented for the respondents, and, indeed, the decision of the High Court, seem to be based upon the assertion that it is the law of India the Hindu widow has in the ordinary case no right of maintenance if she chooses to change from her husbands residence and choose another for herself. With such respect to the learned Judges the Board is unable to accept this view. 18. On the authorities it is, of course, true that if that change of residence is made for unchaste purposes, it is sufficient answer to the demand to offer her the shelter of the old home. But this is no respect any such case. It is a simple case of a Hindu Widow from motives which cannot be impeached on the ground stated, leaving her old residence and preferring the shelter and protection of her fathers home. In the opinion of the Board such action was within her legal right. She was only twenty-four years of age, and one cannot pursue the authorities or have a knowledge of Indian life, without understanding that such a change might be made from a sense of propriety and from the best of motives. But even so the point is not one of motives but of right. 19. It is now necessary to see what is the foundation of the judgment of the Court below. It is contained in a single sentence in the judgment of the High Court as follows : "In regard to her claim for arrears of maintenance we think that there is no ground for allowing that claim. It is not suggested that she has incurred any debts in maintaining herself and we can find no excuse for her leaving her sons and going to reside with her father." 20. It is not suggested that she has incurred any debts in maintaining herself and we can find no excuse for her leaving her sons and going to reside with her father." 20. With much respect to the High Court their Lordship think that a judgment in these terms contravences the long and wellsettled law of India. It makes this case one of widespread importance, and the Board thinks it accordingly right to note the outstanding case law on the subject. This is not instance................. "It remains accordingly only to fix the date from which the maintenance allowance should run. The appellant having remained in her late husbands home, and having as she had a right to do, during that period accepted maintenance in fact and in kind, and she having thereafter as was class within her legal right, changes her residence and gone to live with her father, what was the date of that change? The evidence upon that subject is far from clear. It appears to be established that she left by the family car on a visit to her father to attend the sradh ceremonies of her deceased mother. When there she made up her mind to stay on, and she has done so ever since. The Board is of opinion that this so ever happened in the end of 1921, and that accordingly maintenance on the scale fixed by the Court below should run not from the date of decree, as found by the High Court of Appeal, nor from the date of suit April, 1922 but from January 1, 1922.". This decision has been uniformly followed by this Court. See (Gurushidappa Mallappa v. Parwatewwa)2, 38 Bom.L.R. 1293 and (Dattatrava Maruti Shanbha v. Laxman)3, 44 Bom.L.R. 527. 21. They are also confirmed in the recent decision of the Supreme Court in (Dr. Kulbhushan Kunwar v. Smt. Bai Kumari Mandalsa Kunwar)4, A.I.R. 1971 S.C. 234. After quoting the aforesaid decision of Lord Shaws judgment, referred to above, the Supreme Court laid down at page 239 in para 17 as follows:--- "With respect we are in entire agreement with the above dictum and in our view sub-section (2) of section 23 makes no departure from the principles enunciated by the Board, except perhaps to a limited extent envisaged in sub- clause (d) and (e) of the said sub-section." 22. Dealing with question as to from which date the maintenance should to claimed, the Supreme Court observed at page 239 in para 20 as follows :--- "The question as to the date from which maintenance would be claimable was also mooted before the Judicial Committee in the above case. This High Court had turned down the widows claim to arrears of maintenance. Examining the several decisions decided before it the Board took the view that the widow was entitled to maintenance not from the date of the decree as found by the courts below nor from the date of the decree as found by the Courts below nor from the date of the suit in April, 1922 but from 1st of January, 1922 in view of the fact that it was towards the end of the year 1921 when the widow had made up her mind to stay on at her fathers place. In this case, as already noted, the claim to maintenance was first laid by a lawyers notice of 1951 but the suit was filed in 1954. The trial Court decided maintenance from the date of the decree in 1957. But the High Court thought fit to allow-maintenance from the date of the institution of the suit. No exception can be taken to the fixing of the date of institution of the suit as the terminus a quo for the maintenance claimed by the respondent." It is, therefore, clear that the Court had power two determine the arrears of maintenance and this desertion has to be exercised in accordance with the well-settled principles in the light of the aforesaid decision of the privy Council. 2 Procedure followed in trial Court. 23. However, as stated above, the trial Court failed to notice the above principles when dealing with the notice of motion for maintenance. After disposing of the petition by granting the decree for judicial separation and directing the custody of the children to be given to the wife, the trial Court proceeded to deal with the notice of motion of maintenance. Therefore, it appears that the notice of motion was disposed of only on the basis of affidavits. Neither of the parties wanted to lead evidence. The parties agreed to the matter being decided on the basis of the affidavits. Therefore, it appears that the notice of motion was disposed of only on the basis of affidavits. Neither of the parties wanted to lead evidence. The parties agreed to the matter being decided on the basis of the affidavits. It is, therefore, not necessary to consider the oral evidence which was before the Court and which was not even referred to in the order passed by the lower Court. 3. Wifes plea for higher Maintenance. 24. In the notice of motion mentioned was claimed at the rate of Rs. 1,338/-, the particulars of which are mentioned above. It was claimed by the wife for herself and for her two sons from February 19, 1969, the date on which the husband with drew his appeal in this Court as stated above. It was also the date upto which the husband had paid maintenance at the rate of Rs. 1000/- to the wife. 25. In support of the notice of motion, the wife filed an affidavit dated February 2, 1970. It is not necessary to refer to the facts mentioned in the said affidavit with regard to the circumstances in which she and her two sons were compelled to live with her mother away from her husband. A decree for judicial separation has been already passed. It is not challenged by the husband, although a decree has been passed on the ground of desertion and cruelty on the basis of the unchallenged testimony of the wife who stated that before her final separation 7 years ago as a result of her being driven out on October 3, 1966, on more than 5 previous occasions the husband had ordered her to leave the matrimonial home. It is also not necessary to deal with the particulars relating to the wishes of the minor children, the order regarding the custody of the minor children and the permission to the husband to visit them as it is not the subject-matter of the appeal. 26. It is also not necessary to deal with the particulars relating to the wishes of the minor children, the order regarding the custody of the minor children and the permission to the husband to visit them as it is not the subject-matter of the appeal. 26. What is material to be taken into consideration is, what is stated by the parties in their affidavits relating to the question of maintenance to be awarded in the light of the principles mentioned above and in the light of section 23(2) of the Hindu Adoption and Maintenance Act, 1956 i.e.., the position and status of the parties; the reasonable wants of the claimant; the value of the claimants property and any income derived from such property, or from the claimants own earnings or from any other source; and the number of persons entitled to maintenance under the Act, which in this case is three, the wife and two sons. 27. In her affidavit dated February 2, 1970, the wife referred to the correspondence between her attorneys and the husbands Advocate and explained how he had given the particulars of Rs. 1,338/- which she was claiming as expenses required to maintain herself and her two sons. She stated that ever since she left her matrimonial home. The husband had not cared to maintain her or her children till March 1, 1968 and how Rs. 1000/- was being paid by the husband per month under the order dated June 18, 1968 passed by the City Civil Court on her Notice of Motion in the petition for restitution of conjugal rights filed by the husband on October 14, 1967. She referred to Rs. 500/- sent by the husband in December 1969 and stated that she and her son were residing with her mother who was 62 years old. She averred that she herself was employed as a teacher in Bharda New High School in Bombay on a monthly salary inclusive of all allowances, at Rs. 390/- out of which she was receiving a net amount of Rs. 380/- after deduction of provident fond contribution. She also averred that she had no other source of income available for the purpose of providing maintenance of herself or the maintenance or education of her sons. 28. She stated that Deepak was aged 7 years and Uday was aged 4 years when she filed the affidavit. 380/- after deduction of provident fond contribution. She also averred that she had no other source of income available for the purpose of providing maintenance of herself or the maintenance or education of her sons. 28. She stated that Deepak was aged 7 years and Uday was aged 4 years when she filed the affidavit. She also stated that the husband was employed as a General Manager of Indian Scherring Limited in Bombay; and his emoluments drawn from the said employment were Rs. 4,700/- p.m. in addition to the annual bonus of Rs. 12,000/-. She stated that the employer of the husband had provided him with a fully furnished air conditioned flat at Vijay Vilas in Oomer Park situated at Warden Road, Bombay and that he was not liable to pay any outgoings in respect of the said flat. She stated that the employer had also provided the husband an Ambassador Car No. MRC 7350 at the instance of the Company. In addition to this, the husband was alleged to have owned an ownership flat at Hargun House situated at Worli, Bombay 18, which he had permitted a third party to use and occupy on payment of a sum of Rs. 400/- p.m. She also referred to the residential house and other immoveable properties at the native place of her husband Umreth in Kaira District, yielding an income of about Rs. 100/- per month. She averred that the husband also earned a substantial amount of interest on his savings, which runs into lacs of rupees, which was about Rs. 750/- p.m. 29. The wife, therefore, submitted that the aggregate monthly income of the husband was about Rs. 6,950/- p.m. She stated that after she was complied to leave her matrimonial home in the month of October 1966, she had to bear the expenses relating to the delivery of her second child, Uday, including all medical expenses during the illness of herself and her minor children from the month of October, 1966 in addition to the legal expenses which she was compelled to bear on account of the petition filed by the husband and the petition which she had to file against him aggregating to about Rs. 7,000/-. She, therefore, submitted that having regard to the status and needs of the family and the income of the husband, she would at least require Rs. 7,000/-. She, therefore, submitted that having regard to the status and needs of the family and the income of the husband, she would at least require Rs. 1,338/- per month to ensure a reasonable decent living for herself and her two sons. 30. Really speaking, the Notice of Motion and the affidavits were relating to interim maintenance only. She, however, prayed for alimony for herself and maintenance for her two sons in prayer (c) of her petition. In these circumstances, it was some what improper on the part of the trial Court to have first disposed of the petition and thereafter to have taken up the Notice of Motion for interim maintenance and proceeded to determine separately by a separate order permanent maintenance. At certain stage I was, therefore, feeling that this was a fit case to be remanded for proper trial on the question of maintenance but for the reasons which will be hereinafter referred to, I do not think that such course is desirable at this stage although the learned Judge was not justified in first disposing of the petition and then taking up the Notice of Motion for interim maintenance. The procedure appears to have been accepted by the Counsel for both parties that Notice of Motion was to be taken up for hearing after the disposal of the petition for determining permanent maintenance. No prejudice, therefore, would be caused to the parties by the rather dubious and extra ordinary procedure followed by the lower Court. Hence it is not necessary on this ground only to remand the matter to the trial Court. 31. What is worth nothing is that in the petition itself apart from referring to the earlier order of maintenance at Rs. 1000/- in M.J. Petition No. 7268 of 1967 and withdrawal of the appeal filed by the husband in this Court, no averments were made by the appellant herself relating to the question of permanent maintenance. Yet the parties and their Counsel proceeded to get the decision from the lower Court on the basis of the affidavits filed by them for getting permanent maintenance and alimony determined on the basis of those affidavits. Yet the parties and their Counsel proceeded to get the decision from the lower Court on the basis of the affidavits filed by them for getting permanent maintenance and alimony determined on the basis of those affidavits. It is, therefore, necessary to deal with the question raised in this appeal on the basis of the affidavits alone as they were the materials, on which the parties wanted the decision by the lower Court unless in Justice would result to either of the parties relying on those affidavits. 4. Husbands plea against enhancement. 32. In this back ground one must understand the affidavit in reply which was filed by the husband to the Notice of Motion taken out by the wife in the present Matrimonial jurisdiction Petition No. 9046 of 1969. His affidavit was dated February 20, 1970. Here also it is necessary to refer only to his averments relating to the income and the affidavits relating to the question of determining the rate of maintenance and date from which the maintenance should be paid. 33. According to the husband, the wife and her mother own a flat jointly and the wife and the two children were residing in that flat. He submitted that apart from the wifes salary of Rs. 390/- she was earning a further sum of Rs. 200/- p.m. by way of tuition fees making her income amount to Rs. 590/- p.m. He contended that the figures of his income were grossly exaggerated by the wife and the correct facts regarding his income and the income of his wife were as follows: "(a) I am the General Manager of Indian Scherring Co. Ltd. a Company doing business of manufacturing and marketing drugs and medicines. My gross salary is Rs. 2,900/- p.m. out of which an aggregate amount of Rs. 1,522,35 is deducted every month on account of Provident Fund, contribution N.H. Society, Income Tax, Life Insurance Premium, C.T.D. and get a net salary of Rs. 1,277.65 every month. I have to pay an aggregate sum of Rs. 2,332.44 annually on account of insurance premium on my life insurance policy which amount is not include in the pay slip and which I pay at the rate of Rs. 194.37 p.m. Thus I get an average salary of Rs. 1,277.65 every month. I have to pay an aggregate sum of Rs. 2,332.44 annually on account of insurance premium on my life insurance policy which amount is not include in the pay slip and which I pay at the rate of Rs. 194.37 p.m. Thus I get an average salary of Rs. 1,100/- p.m. The bonus which I get is not of a fixed nature and is eminently of a fluctuating nature and after taking into consideration the amount of yearly bonus after deducing Income-tax on the same I get an average sum of Rs. 1,500/- per month as and by way of my income from the said employment. In addition to my said income of Rs. 1,500/- per month my house at my native place Umreth yields a monthly income of Rs. 20/- which in fact is wiped out against the maintenance of the house and the municipal tax. I own an ownership flat at Worli admeasuring about 425 sq.ft. which, I have given on leave and licence to one Shri Damodar Chhabria under leave and licence agreement. The said licence has not paid any compensation to me since April 1969 and has raised disputes regarding the payment of compensation of the said flat and wrongfully withheld the payment thereof. I have taken out an insurance policy in the name of my son Deepak and have to pay annual premium of Rs. 320/- for the said policy. I have to incur a monthly expenditure ranging between Rs. 800/- to Rs. 1000/- for myself and the maintenance of my flat and monials. Hereto annexed and marked Exhibit No. 1 collectively are the pay slip issued by my employers for the current salary and the certificate in respect of my salary and the bonus last received. (b) The petitioner is earning a sum of about Rs. 200/- p.m. by doing tuitions in addition to her of Rs. 390/- per month as a school teacher. The petitioner has got gold ornaments worth Rs. 5,000/- belonging to me. The petitioners mother who is retired school teacher also has an income of Rs. 80/- per month as per pension. The petitioner is residing with her mother in a flat jointly owned by the petitioner and her mother and as such does not have to pay or incur any expenses for her residential accommodation. 5,000/- belonging to me. The petitioners mother who is retired school teacher also has an income of Rs. 80/- per month as per pension. The petitioner is residing with her mother in a flat jointly owned by the petitioner and her mother and as such does not have to pay or incur any expenses for her residential accommodation. Our son Deepak is at present staying with the petitioner and studying in the school where the petitioner is employed. The petitioner does not have to pay any fees for education of Deepak as the petitioner is a teacher in the same school where Deepak is studying. In the premises I say and submit that the petitioners income is sufficient for her maintenance and support and that she is not entitled to any order for her maintenance being had to facts and circumstances of the case...." 34. In support of these contentions the husband has produced his pay slip issued by his employer and a certificate in respect of his salary and bonus which show that his gross salary was Rs. 2,900/- and the net salary payable was Rs. 1,277.65 and that he had received a sum of Rs. 11,016/- by way of bonus during the year 1969-70. 35. He admitted in his affidavit that one of his rooms in the block was air-conditioned and contended that although some furniture in his flat belonged to the company, apart of the furniture belonged to him. He also gave some details with regard to the arrangement between him and the company regarding the use of the car although he substantially admits that the car was being provided by the company. He, therefore, submitted that the petitioners claim for Rs. 1,338/- was grossly exaggerated and inflated. 36. The wife then filed an affidavit in rejoinder on February 23, 1970. According to her, the flat in which she was staying with her children really belonged to her mother who had purchased it for a sum of Rs. 10,500/- out of her own savings and resources and her name has been added along with her mothers name for the sake of convenience only as she is the only child of her mother. She denied her earning of Rs. 200/- by way of tuition as alleged by the husband. She stated that she never gave any tuitions at all to any one. 37. She denied her earning of Rs. 200/- by way of tuition as alleged by the husband. She stated that she never gave any tuitions at all to any one. 37. She reiterated that her husbands income was much more than what he was claiming and referred to the affidavit in reply which the husband had filed on January 12, 1970 in which she stated as under :--- "My father during his life time enjoyed a very comfortable and happy life. He did banking business and he had enough agricultural lands and a large residential house.......My father provided me ample funds with regard to my studies. On his death he left for me good Estate. The wife further stated that the flat owned by the husband at Worli, was not 425 sq.ft. suggested by him but was at least 500 sq.ft. and denied that the licence fee was not paid by Chhabria as contended by her husband. She submitted that if the husband required Rs. 800/- to Rs. 1000/- p.m. as stated by him for himself and the maintenance of his flat and the rent where of was paid by the employer, she would certainly require Rs. 1,338/- for the maintenance of herself and her two sons. 38. She denied the accuracy of the pay-slip produced by the husband and contended that the certificate was not reliable as it was not issued by the Managing Director but by an employee working under the husband. She relied on the order passed by the trial Court in her Notice of Motion in M.J. Petition No. 7288 of 1967 and contended that Rs. 1000/- which was fixed as monthly alimony and maintenance in that case was accepted by the Court as fair after full investigation of the respective incomes of the husband and the wife and stated that since passing that order the husbands income had increased considerably. 39. She denied having gold ornaments worth Rs. 5000/- belonging to the husband and stated that it was only in 1964 that the husband gave her one gold Chitak, which I am told, is a gold neekless weighing about 8 to 10 tolas, which was the only ornament which she received from her husband. She stated that two gold guineas which were purchased out of her income were returned to her. These were the only gold ornaments or articles which she had with her. She stated that two gold guineas which were purchased out of her income were returned to her. These were the only gold ornaments or articles which she had with her. She contended that they should be ignored as they were not of much value. 40. She stated that her mother was getting a pension of about Rs. 42/- p.m. She also stated that Rs. 48/- had to be paid to the Anand Nagar Co-operative Housing Society for municipal tax and other maintenance charges in respect of the said flat in which she was staying with her mother. She admitted that she was a teacher in Bharda High School and that the school was not taking any tuition fees from her sons; but contended that she had to incur considerable expenses for school uniforms, books and other accessories; and hence the income which she was getting as a teacher was not sufficient for the maintenance and support of herself and her two children. She denied that her income was sufficient for the maintenance of herself and her two children. She submitted that considering the income and the property possessed by the husband the demand of Rs. 1,338/- which she had made was fair and reasonable having regard to the position and status of the husband and the wife and the reasonable wants of herself and her two sons and the value of her property and the income. 41. On March 3, 1970 a further affidavit was filed by the husband denying that his income had increased after interim maintenance of Rs. 1000/- was fixed to M.J. Petition No. 7268/- of 1967 and reiterating that the demand made by the wife unreasonable and excessive. 42. A further affidavit was filed by the husband on June 15, 1970, stating that his services with Indian Scherring Co. Ltd., were terminated as a matter of economy under letter dated June 3, 1970, which has been referred to above. He also stated that the flat at Worli was taken by him from Chhabria without any compensation on account of disputed and that he had no source of income at all and that it would be difficult for him to pay any maintenance to the petitioner (wife). 43. He also stated that the flat at Worli was taken by him from Chhabria without any compensation on account of disputed and that he had no source of income at all and that it would be difficult for him to pay any maintenance to the petitioner (wife). 43. In answer to this last affidavit, the wife failed a further affidavit on June 19, 1970, reiterating that her demand had manoeuvred with management of Indian Scherring Co Ltd. to get a notice of termination so as to defeat the claim of the wife, for maintenance. These were the only affidavits before the learned Judge in the City Civil Court on the basis of which he had to decide the quantum of maintenance. 44. It is well settled that the existence of property and income is not necessary before the husband can be held liable to pay maintenance to the wife. That question will arise if and when the wife tries to execute the decree of maintenance against him. Similarly it is the duty of the father under section 20(1) of the Hindu Adoption and Maintenance Act, 1956 of the Hindu Adoption and Maintenance Act, 1956 to maintain his children irrespective of possession of the property. It is common ground that the husband had in fact property at Umreth, a flat in Worli and a good job in Indian Scherring Company a pharmaceutical concern. He is a graduate of Pharmacy. It is difficult to believe that with his experience in Indian Scherring Co. He had no source of income or that he would not be in a position to maintain his wife and children. The averments made in his affidavits were patently false but such falsity must be considered to be the usual feature of a matrimonial dispute about quantum of maintenance. 45. The learned Judge in the City Civil Court referred the undisputed facts :- (1) That Rs. 15,225/- was the amount of gratuity which the husband admittedly received after his services were terminated; (2) that about Rs. 45,530.70 stood to the credit of the husband towards the provident fund account; and (3) that Rs. 11,000/- were received by the husband as bonus for the accounting year 1968-69, These figures together came to Rs. 71,755/-. Reference is made in the judgment to the statement made by the Counsel for the wife that the husband had purchased a car for Rs. 11,000/- were received by the husband as bonus for the accounting year 1968-69, These figures together came to Rs. 71,755/-. Reference is made in the judgment to the statement made by the Counsel for the wife that the husband had purchased a car for Rs. 11,500/- in July 1970 and also the disposal of the worli flat for Rs. 18,000/- which was admitted by the husband. He also referred to the fact that as a result of the termination of the services, the husband had to leave the premises on or before October 15, 1970 and, therefore, the husband had executed an agreement for the purchase of a new flat No. 250 on the second floor in the building known as " Mira Mahal" at Napean Sea Road for Rs. 42,000/-. The learned Judge went on the observe :--- ".... Therefore in my opinion, even though the respondent is unemployed, the fact remains that a substantial amount of Rs. 45,553.70 stand to his credit as Provident Fund and when this amount is standing to his credit, even making an allowance for the items of expenditure which the Respondent has made out and which I have accepted having regard to the arerments made in the affidavit in support of the notice of motion and the statements made in the reply I believe that having regard to the amount which is standing to the credit of the Respondent an order directing the Respondent to pay a sum of Rs 400/- per month as the maintenance for the petitioner as well as her two children would meet the ends of Justice. The learned Judge appears to have been weighed down by the fact that at the time when he was making order, the husband was unemployed. 46. Neither section 25 of the Hindu Marriage Act, 1955, nor Sections 18 and 20(1) of the Hindu Adoption and Maintenance Act, 1956, required that the husband should be employed or that the husband should have property or the husband should have income before the order for maintenance should be passed. No doubt the income of the husband would be relevant for fixing the quantum of maintenance. In the case the husband has filed a dishonest affidavit suppressing all his income and demanding all the ornaments given to the wife by denying his liability to pay maintenance. No doubt the income of the husband would be relevant for fixing the quantum of maintenance. In the case the husband has filed a dishonest affidavit suppressing all his income and demanding all the ornaments given to the wife by denying his liability to pay maintenance. It is not difficult to accept the word of the wife regarding the estate and capacity of the husband to maintain the wife and the children. Moreover, the conduct of the husband in the present case in not even pressing the appeal against the order maintenance fixed at Rs. 1000/- does show that Rs. 1000/- was considered by him to be proper maintenance for his wife and the children although he also withdrew the said appeal by withdrawing the petition itself and thereby deprived the wife and the children of the interim maintenance which they were getting under the order at the rate of Rs. 1000/- p.m. 47. A persual of the particulars given by the wifes attorney with regard to the statement of expenses required for herself and for her two sons, who are growing children studying in a leading Bombay School, shows that except perhaps with regard to what she had chosen to call " miscellaneous" and "unforeseen expenses of Rs. 100/-", " entertainment, toys, etc." of Rs. 100/-, "doctors Bills", " medicines and tonics", etc. of Rs. 100/- and fresh fruits and vegetables, Ghee, spices, etc." of Rs. 150/- and 300/- respectively, the claim made was for decent necessaries. Having regard to the style of life and the luxuries to which the family was entitled to and in the view of the position of the husband as a past General Manager of Indian Scherring Co., Rs. 1000/- ordered in the other petition was quite reasonable, reducing by Rs, 338/- from Rs. 1338/- as some what on the excessive side due to luxuries. 48. As stated above, neither of the parties asked the Court to take evidence with regard to the quantum and the facts of the income and properly belonging to the husband. Under Order 19, Rule 1 kit was open to the Court to rely on the affidavits but somehow the trial Court was weighed down by the fact that the husband had lost his Job and, therefore, held that the only maintenance which he should be ordered to pay was Rs. 400/-. Under Order 19, Rule 1 kit was open to the Court to rely on the affidavits but somehow the trial Court was weighed down by the fact that the husband had lost his Job and, therefore, held that the only maintenance which he should be ordered to pay was Rs. 400/-. In my judgment, the trial Court completely ignored the provisions is of Sections 15 and 20 of the Hindu Adoption and Maintenance Act, 1956 and section 25 of the Hindu Marriage Act, 1955, which did not make an order for maintenance depend entirely on the husband being employed or on proof of his income and property by the wife. 49. The granting of maintenance was in the discretion of the Court. The date from which the maintenance was to be ordered was also in the discretion of the Court. It was not open to the Court to ignore these sections and rely on the fact that the husband was not employed and, therefore, order a pittance of Rs. 400/- in these hard days when the prices are rising. The husband has thrown out the wife and the children in the present case though his position and income require him to be more reasonable and sensible. The husband went on denying everything that the wife stated in the affidavits with utter irresponsibility. It was his duty to maintain the two sons who were born out of this marriage and the wife whom he had wedded in what they described as " Love Marriage". Moreover; the Court also ignored the provision of section 25(2) of the Hindu Marriage Act which enables any party to get variance of the order of permanent maintenance in the even of any change in the circumstances. Similarly, it ignored the provisions of section 25 of the Hindu Adoption and Maintenance Act which enables a party to move the Court to alter the amount of maintenance if there is material change in the circumstances justifying any alteration in the maintenance. 50. Apart from denying what was stated by the wife it was suggested by the husband that the small pension of the wifes mother was also relegant from determining the maintenance to be awarded to the wife and sons. The husband had suppressed everything about his income and the property. 50. Apart from denying what was stated by the wife it was suggested by the husband that the small pension of the wifes mother was also relegant from determining the maintenance to be awarded to the wife and sons. The husband had suppressed everything about his income and the property. It is difficult to believe that the husband who is a Bachelor in Pharmacy and who has been General Manager of leading Pharmaceutical concerns currently prosper on account of the increase in diseases, is earning nothing after services were terminated. He is not even honest to state exactly what is his income after he ceased to be in the employment. It may be that the wife is unable to proved that he manoevred to get out of the employment; but that is not quite relevant at this stage when determining the quantum of maintenance. Having regard to the qualifications and experience and on his own admission in the affidavit that he requires personally about Rs. 800/- to Rs. 1000/- for his self expenses, I do not think that it will be difficult for him to pay Rs. 1000/- as maintenance Rs. 500/- for the wife and Rs. 500/- for the two sons who are studying in the school. 51. If at all the wife takes out execution proceedings, the husband may come forward with all the facts and satisfy the Court that he does not deserve to be proceeded with in the execution but when determining the amount of maintenance and the liability of the husband in the present state of evidence before the Court I think that the proper order of maintenance which the lower Court should have passed was to fix the maintenance at Rs. 1000/- per month which was ordered to be paid by him. 5. Wifes affidavit in this Court. 52. In this Court the wife has filed further affidavit which is dated September 4, 1973. It was in fact filed in the Court at the hearing of the appeal yesterday. Objection was taken to the admission of this affidavit by the Advocate appearing on behalf of the husband on the ground that the copy of the affidavit was served on the respondents Advocate only a day before yesterday. 53. It was in fact filed in the Court at the hearing of the appeal yesterday. Objection was taken to the admission of this affidavit by the Advocate appearing on behalf of the husband on the ground that the copy of the affidavit was served on the respondents Advocate only a day before yesterday. 53. In this affidavit the wife has set out several new facts which were not before the lower Court and came to her notice subsequent to the disposal of the matter by the lower Court. According to her, the figures which the husband had given to the trial Court were false and underestimated. She reiterated that the actual income of her husband was Rs. 4,700/- with perquisites and stated that having regard to the husbands service with the company for about 14 years and with considerable merit, it was inconceivable that the husband received only a sum of Rs. 15,225/-. She referred to the correspondence between her Advocates and that of the husband in the course of which inspection of papers in respect of his income , assets and profits were demanded and stated that the husband failed and neglected to give any such inspection. 54. She has referred to the inquiry which she was making with 3rd Income Tax Officer, S.B. II, and requested this Court to order the husband to make an affidavit with regard to his income and several other particulars which she has mentioned in her affidavit. She has made a calculation of what her husband must have received as Rs. 99,658/- and pointed out that the insurance premium which the husband was paying was Rs. 5,614/-. She stated that since March 1972 she was not keeping good health and was suffering from heat trouble. She had to spend Rs. 1000/- on medical expenses. She was referred to the growing age of her two sons and pointed out that her monthly expenses was about Rs. 2510/- p.m. She has further averred that : "I further say that from 1st April, 1971 till 31st January, 1977, the respondent was working with M/s. Jagat Singh Bros., and the respondent has earned as salary for the period 1st April to 31st December, 1971 an amount of Rs. 21,540.00; Divided income Rs. 440.00 and interest from Bank Rs. 65.00 viz., total amount of Rs. 22,045.00. 21,540.00; Divided income Rs. 440.00 and interest from Bank Rs. 65.00 viz., total amount of Rs. 22,045.00. I say that the respondent is working as a partner for the last two years or more with M/s. Biox Laboratories, 35 Neelam Building Worli Seaface, Bombay-18. The respondent is earning about Rs. 6,500/- per month from this partnership business. I say that the Respondent has acquired a new office at Neelam Building, Worli Seaface, and has been paying the rent therefore at the rate of Rs. 800.00 per month." The wife has, therefore, prayed that all these subsequent facts should be taken into consideration by this Court in the interest of Justice and fairplay and enhance the amount of maintenance to at least Rs. 2000/-. 55. Apart from the objection which is referred to above, the respondents Advocate objected to this Court taking into consideration these facts on the ground that if at all she wants to plead the change of circumstances it is open to her to make an application under section 25 of the Hindu Adoption and Maintenance Act, 1956 or under section 25(2) of the Hindu Marriage Act, 1955 and this Court should not take into consideration this alleged change of circumstances so as to deprive the husband of his right to appeal against the decision of the lower Court and also of his opportunity to lead evidence to meet the new circumstances which are being trotted out at this stage by the wife. 56. These objections on behalf of the husband must be upheld. I do not wish to take into consideration anything that is stated in the additional affidavit which is filed by the wife as she has a remedy under Section 25 of the Hindu Adoption and Maintenance Act, 1955. She is at liberty to make an application to the City Civil Court just as the husband has a remedy of making a similar application to reduce the amount of Rs. 1000/- which I am fixing as the amount of maintenance if he is able to satisfy the Court below by leading proper evidence that the amount of maintenance ordered by me is burden some to him on account of the changed circumstances, if any. 6. Quantum of Maintenance : 57. 1000/- which I am fixing as the amount of maintenance if he is able to satisfy the Court below by leading proper evidence that the amount of maintenance ordered by me is burden some to him on account of the changed circumstances, if any. 6. Quantum of Maintenance : 57. In my judgment, the learned Judge of the Court below was wholly wrong in taking into consideration merely the termination of the services of the husband and in depriving the wife and the children of the reasonable maintenance which the husband of the status and style of living of the husband in this case ought to provide in the city of Bombay. The lower Court erred ignoring the provisions of section 23(2) of the Hindu Adoption and Maintenance Act. I, therefore, order the husband to pay Rs. 500/- to the wife as alimony and Rs. 250/- each to the two sons as maintenance subject to the rights of the husband and the wife to make an application, if they are so advised, under section 25(2) of the Hindu Marriage Act, 1955. 7. Date from which maintenance payable : 58. As stated above, the Court has discretion to award maintenance from a date prior to the date of the petition. It was contended on behalf of the husband by his Counsel that under section 25 of the Hindu Marriage Act, 1955 and section 25 of the Hindu Adoption and Maintenance Act, 1956, maintenance can be ordered only from the date of the suit. I do not find any such restriction in these sections. It is wellsettled in matrimonial law that the quantum of maintenance and the date from which the maintenance is payable are in the discretion of the Court. Even in England the date from which alimony is to be paid is normally stated in the order and there is no restriction to award maintenance from the date of the petition. So far as India and our High Court is concerned, the arrears of maintenance have been awarded following the afore- said Privy Council decision unless the person entitled to maintenance discentitles herself from such maintenance in law. 59. In the present case, as stated above, under section 18(1) the wife is entitled to maintenance. So far as India and our High Court is concerned, the arrears of maintenance have been awarded following the afore- said Privy Council decision unless the person entitled to maintenance discentitles herself from such maintenance in law. 59. In the present case, as stated above, under section 18(1) the wife is entitled to maintenance. The husband was a General Manager of a pharmaceutical concern having a flat and a car maintained by the company and having at least one air-conditioned room in a very posh locality in Bombay. Having regard to these facts, it is the duty of the husband to maintain his wife and children as far as possible in the same style in which he was living. There is nothing before me to show that his style is changed. In these circumstances and having regard to the fact that this litigation has been pending from 1967, it was wrong on the part of the husband not have paid anything to the wife and the children from February 19,1969. 60. It is, therefore, ordered that the husband should pay maintenance at the rate of Rs. 1000/- from February 19,1969 and shall continue to pay the said amount until it is verified by an application made to the City Civil Court under section 25 of the Hindu Adoption and Maintenance Act, as stated above, either for enhancement by the wife or for reduction by the husband. 61. After saying all this, however, I do hope that the husband and the wife will be able to find out a way of living together and by such cohabitation put an end to the decree for judicial separation which, as stated above, comes to an end the moment they begin to live together. 8. Costs : 62. The only other question which requires to be dealt with is the question of costs. It is difficult to understand why the normal rule that costs should follow the event is not followed by the learned Judge in this case. Having come to the conclusion that the wife was entitled to a judicial separation on the ground of desertion and cruelty practised by the husband, it will wrong on the part of the lower Court not have granted costs to the wife. The wife should, therefore, recover costs of this Court and also of the trial Court from the husband. 9. Conclusion : 63. The wife should, therefore, recover costs of this Court and also of the trial Court from the husband. 9. Conclusion : 63. The appeal is accordingly allowed with costs throughout and the order passed by the trial Court is modified by directing that the husband should pay with effect from February 19, 1969 and shall continue to pay until a final order is passed on an application made by the wife for enhancement or made by the husband for decreasing the amount of maintenance under section 25(2) of the Hindu Marriage Act or section 25 of the Hindu Adoption and Maintenance Act, the sum of Rs. 500/- to the wife as alimony and the sum of Rs. 250/- for Deepak and the sum of Rs. 250/- for Udaya as maintenance. If any amounts are paid by the husband in accordance with the order of the trial Court, the husband will be entitled to credit in respect of these amounts. ------