JUDGMENT : 1. Though the appeal was listed for hearing on the question of admission and consideration of pending applications, but with the consent of the parties the same has been finally heard. 2. This appeal has been preferred by the appellant/applicant under Section 19 of the Family Courts Act, 1984 being aggrieved by the judgment dated 04.07.2017 passed in Hindu Marriage Act Case No.268-A/2014 by the Principal Judge, Family Court, District Ratlam; whereby an application under Section 25 of the Hindu Marriage Act, 1955 preferred by her has been dismissed. 3. The facts of the case show that the parties had been married in the year 1980 according to Hindu rites and ceremonies. Thereafter on account of disputes having arisen between them started residing separately. A petition under Section 13 of the Act, 1955 filed by the respondent for grant of divorce was decreed ex parte by the Family Court, Jaipur by judgment dated 25.08.1993. A petition under Section 9 read with Section 25 of the Act, 1955 filed by the appellant was allowed by the Ist Additional District Judge, District Ratlam by judgment dated 29.01.2004 directing for restitution of conjugal rights of the petitioner and awarding a sum of Rs.700/-per month to her from the respondent by way of maintenance. 4. On 21.07.2014, an application under Section 25 of the Act, 1955 was filed by the appellant before the Court below for award of a sum of Rs.10,000/-per month to her from the respondent by way of maintenance. In alternate it was prayed that she may be awarded half of the salary and other benefits being received by the respondent. The appellant submitted that earlier by judgment dated 29.01.2004 she was F.A. No.337/2017 Smt. Usha W/o Hukumsingh Shekhawat Vs. Hukumsingh S/o Arjunsingh Shekhawat awarded a sum of Rs.700/-by way of maintenance from the respondent but the said amount has never been paid to her by the respondent. It was further submitted that in the meanwhile the income of the respondent has increased considerably and he is earning about Rs.25,000/-per month and the cost of living has also gone up due to which the appellant is finding it hard to maintain herself hence the respondent is liable to maintain her. 5. It was further submitted that in the meanwhile the income of the respondent has increased considerably and he is earning about Rs.25,000/-per month and the cost of living has also gone up due to which the appellant is finding it hard to maintain herself hence the respondent is liable to maintain her. 5. The aforesaid application was contested by the respondent by filing his reply submitting inter alia that he has always been depositing a sum of Rs.700/-per month awarded in favour of appellant that it is the appellant herself who is not ready to live with him and has been harassing him, that she is having considerable income from which she can maintain herself, that she has opened up a joint account in UCO Bank at Ratlam along with one Ajay Kumar in which the residential address of both of them has been mentioned as 18, Sajjan Mill Parisar, Ratlam, that she is not related to said Ajay Kumar in any manner hence prima facie appears to be having a relationship with him and that she is not entitled for award of any maintenance from him. 6. By the impugned judgment the application filed by the appellant has been dismissed by the Court below by holding that in view of her having a joint Bank Account in UCO Bank along with Ajay Kumar and in view of statement of the respondent adverse inference shall be drawn against her to the effect that she is having illegal relationship with him. 7. Learned counsel for the appellant has submitted that the respondent did not plead in his reply that the appellant has not remained chaste. He only pleaded that the appellant has opened up a joint Bank Account with one Ajay Kumar and appears to be having F.A. No.337/2017 Smt. Usha W/o Hukumsingh Shekhawat Vs. Hukumsingh S/o Arjunsingh Shekhawat some relation with him. No evidence was adduced by the respondent in proof of his pleading and his mere oral statement as regards unchastity of the appellant would not suffice. No question was put to the appellant in her cross-examination as regards the pleading made in this regard by the respondent in his reply. The Court below has hence erred in dismissing the application filed by the appellant. 8. No question was put to the appellant in her cross-examination as regards the pleading made in this regard by the respondent in his reply. The Court below has hence erred in dismissing the application filed by the appellant. 8. On the other hand, learned counsel for the respondent has submitted that he had specifically pleaded regarding the appellant having relations with one Ajay Kumar and had affirmed the same in his statement. The said fact was not denied by the appellant in her statement hence there was no reason to disbelieve the version of the respondent. The Court below has hence rightly dismissed the application preferred by the appellant. 9. The application which was preferred by the appellant was under Section 25 of the Hindu Marriage Act, 1955 which reads as under : Section 25 of the Hindu Marriage Act, 1955 : Permanent alimony and maintenance . (1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall [***] 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, the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent. (2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just. (2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just. (3) If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other F.A. No.337/2017 Smt. Usha W/o Hukumsingh Shekhawat Vs. Hukumsingh S/o Arjunsingh Shekhawat party vary, modify or rescind any such order in such manner as the court may deem just. 10. As per Sub Section (1) of Section 25 order regarding grant of maintenance has to be passed by taking into consideration the conduct of the parties and other circumstances of the case. As per Sub Section (3) an order passed under Sub Section (1) can be varied upon proof of eventualities enumerated therein. Thus, it is evident that at the time of passing of the initial order under Sub Section (1) of Section 35 it is the conduct of the parties and other circumstances of the case which have to be considered and such an order can be varied under Sub Section (3) subsequently. The unchastity of the wife can be taken into consideration only while varying, modifying or rescinding an order passed under Sub Section (1). The same cannot be taken into consideration at the time of passing of initial order under Sub Section (1). 11. The application which had been filed by the appellant was required to be considered as per parameters laid down under Sub Section (1) of Section 25 of the Act, 1955 and the conduct of the parties and other circumstances of the case had to be taken into consideration. Admittedly the appellant has been divorced by the respondent who has the liability to maintain her even subsequent to such divorce. Order granting maintenance has already been passed in favour of the appellant in proceedings under Section 9 of the Act, 1955. The appellant is entitled for grant of maintenance from the respondent who is liable to maintain her. Admittedly the appellant has been divorced by the respondent who has the liability to maintain her even subsequent to such divorce. Order granting maintenance has already been passed in favour of the appellant in proceedings under Section 9 of the Act, 1955. The appellant is entitled for grant of maintenance from the respondent who is liable to maintain her. However, these factors have not been taken into consideration by the Court below which has rejected the application of the appellant only upon recording a finding to the effect that she is in an illegal relationship with one Ajay Kumar. The said aspect of the matter was not required to be considered by the Court below as it was considering the application F.A. No.337/2017 Smt. Usha W/o Hukumsingh Shekhawat Vs. Hukumsingh S/o Arjunsingh Shekhawat of the appellant under Section 25 (1) of the Act, 1955. 12. In any case, as per the pleading of the respondent himself the appellant has opened up a Bank Account with one Ajay Kumar, in which the residential address of both of them has been stated to be the same. This by itself could not have been treated to be a pleading of the appellant not being chaste. Only for the reason that a Bank Account is opened along with some other person giving the same residential address, it cannot be assumed that they would be having any physical relationship. 13. Unchastity is defined in Oxford dictionary to mean “relating to or engaging in sexual activity, specially of an illicit or extra marital nature”. The unchastity hence has to be relatable to engaging in sexual activity. The same would not include in its ambit a mere relationship with anyone without anything more. For proof of unchastity engaging in sexual activity or act in relation thereto are a sine qua non. 14. The aforesaid fact was required to be pleaded and proved by adducing specific and cogent evidence. The respondent has failed to do either of the same. His mere bald statement in his evidence would not be a substitute of proof of appellant being unchaste. No question was put to the appellant in her cross-examination as regards pleading of the respondent regarding her not being chaste. The dismissal of the application filed by the appellant upon recording finding as regards her having illegal relationship is hence illegal and perverse and is liable to be set aside. No question was put to the appellant in her cross-examination as regards pleading of the respondent regarding her not being chaste. The dismissal of the application filed by the appellant upon recording finding as regards her having illegal relationship is hence illegal and perverse and is liable to be set aside. 15. As a result, the judgment passed by the Court below is set aside holding that the appellant is entitled for award of maintenance from the respondent. The matter is remanded back to the Court below for determining the amount of maintenance to be awarded to the appellant from the respondent. As both the parties are represented before this Court through their counsel, they are directed to appear before the Court below on 29.11.2021 for which no fresh notices shall be required to be issued to them. The record of the Court below be sent back immediately so as to reach the same before the said date. C.c. as per rules.