The conduct of the parties, their income, and other properties are relevant factors to be considered in determining the amount of permanent alimony to be awarded under Section 25 of the Hindu Marriage Act.

( 1 ) THIS is husband's appeal against an order passed by the trial Court granting permanent alimony to the wife under Section 25 of the Hindu Marriage Act. Brief outline of the admitted facts and circumstances under which this appeal arises is as follows :

( 2 ) PARTIES who are Hindus were married on 1st December, 1964. Shortly thereafter within about 7 or 8 months, the husband filed a petition for judicial separation against the wife on a number of allegations of cruelty as also desertion. While this proceeding was pending, upon her application the wife was allowed interim maintenance by the trial Court at the rate of Rs. 350 per month, which, however, on appeal to this Court was enhanced to Rs. 500 per month. On March 22, 1967 a decree for judicial separation was passed ex parte as the wife though filed written statement did not contest the proceeding at the hearing. On 14th June. 1967, the wife made an application for permanent alimony and claimed Rs. 1,500 per month After about lapse of 2 years thereafter the application for permanent alimony, though contested by the husband, was allowed and a sum of Rs. 500 per month was granted to the wife. This is how, in short, the husband felt aggrieved and preferred the present appeal.

( 3 ) IT appears that before the trial Court, the application was opposed substantially on two grounds namely that (i) the wife was not entitled to any permanent alimony on the ground she treated the petitioner with cruelty and (ii) even if she is so entitled, the claim made by the wife for such alimony was excessive and illegal.

( 4 ) THE learned trial Court so far as first ground is concerned took the view that judicial separation on the ground of cruelty could not operate as bar to the respondent getting permanently alimony under the Hindu Marriage Act. Counsel for the appellant, however, contends that conduct of the parties even from the time of the marriage and after separation could be relevant in adjudicating the respondent's claim for permanent alimony. It is said that under Section 25 of the Hindu Marriage Act in granting permanent alimony the Court has to consider several factors namely the income of the respondent and her other properties, the income of the applicant and his other properties and lastly the conduct of the parties. It is argued that since the appellant obtained a decree for judicial separation on the ground of cruelty of the wife her conduct must be taken into consideration even though such conduct relates to a time prior to the institution of the proceeding for judicial separation. We, however, think that though the view taken by the learned trial Court cannot be taken as a correct proposition of law, at the same time the mere fact that the applicant is the guilty party is not by itself sufficient to disentitle her to alimony. In deciding a claim for permanent alimony on the contrary, the party applying must be presumed to be innocent (See Dr. Harmousji v. Dinbai, ). Although, in this case, the case of alimony was under Section 40 (1) of Parsee Marriage and Divorce Act (1930), there is no material difference between Section 40 (1) of this Act and Section 25 of the Hindu Marriage Act. At any rate, the appellant does not appear to have pressed this point by adducing sufficient and proper evidence to show satisfactorily that the wife by her conduct would be disentitled to claim such alimony For although the conduct of the parties may be a relevant factor for consideration each case has to be considered on its own merits. It is therefore unnecessary to pursue the matter further. On the facts of this case we think that such conduct even if gone into could not disentitle the wife to get permanent alimony.

( 5 ) WE now come to the next important point as to quantum of alimony Counsel for the appellant contends that the trial Court was influenced by a previous decision of this Court and not on any consideration of evidence in fixing quantum of permanent alimony.