The right to separate maintenance under Section 18(2) of the Hindu Adoption and Maintenance Act, 1956 cannot be waived by an agreement between the parties.

( 1 ) THIS appeal is by the wife and the cross-objections by the husband. Two suits were filed by the wife against the husband for maintenance. Suit No. 507 of 1968 was for maintenance from 13. 5. 1963 to 31-3-1966 and Suit No. 148 of 1967 was for maintenance from 1. 4. 1966 to 31. 12. 1970. The two suits were decided together by the learned single Judge who awarded maintenance to the wife at the rate of Rs. 300. 00 per month till the 31st December, 1,970 and Rs. 450. 00 thereafter from January, 1971. The wife has appealed for an increase in the quantum of maintenance, while the husband has filed cross-objections denying the right oft he wife to separate maintenance and also pleading that the amount of maintenance granted should be reduced.

( 2 ) THE two main questions argued before us related firstly to the right of the wife to separate maintenance and secondly to the quantum of maintenance to be allowed to her.

( 3 ) AS to the right of maintenance, sub-section (2) of Section 18 of the Hindu Adoption and Maintenance Act, 1956. lists the grounds on which a Hindu wife shall be entitled to live separately from her husband without forfeiting her right to maintenance. Ground (g)is "if there is any other cause justifying her living separately". Between the parties there was an agreement in the year 1954 by which it was agreed that the wife would live separately and was to be paid maintenance by the husband. They have since then lived separately till now. The respondent husband appearing in person as also later on his counsel both contended that at the right of the wife to separate maintenance could be based only on the agreement and as the said agreement was a conditional one it was tried to be argued that the wife had agreed not to defame the husband and if the husband could show that the wife did not observe that condition of the agreement then the entitlement of the wife to separate maintenance on the basis of the agreement came to an end. In our view, the agreement is relevant mainly to show that both the parties agreed in 1954 that the wife could live separately without forfeiting her right to maintenance. So, far as the condition of the agreement is concerned the validity of that condition his to be judged in the light of the provisions relating to grant of maintenance in the Hindu Adoptions and Maintenance Act, 1956 under this Act there is no ground that the wife would forfeit her right to live separately and get maintenance from her husband if she defamed her husband. Sub-section (2) of Section 18 lists all the grounds any of which would entitle the wife to have separate maintenance. The Act does not state that once the wife is entitled under Section 18 (2) to separate maintenance she would forfeit the right to maintenance if she spoke against her husband or defamed him. Mr. Vohra says that the appellant has not abused or defamed the respondent and she will not do so. In that view we are unable to agree with the respondent that the wife forfeited her right to maintenance because she spoke against him or defamed him. The learned counsel for the respondent further says that the wife waived her right to separate maintenance when she agreed to such a condition. But if the condition itself is not valid according to law, the question of her waiving the right to maintenance does not arise. The maintenance is based on a statutory right and it is not possible to agree to the contention that such statutory right can be waived without good reasons. We, therefore hold that the right of the wife to separate maintenance has been established.

( 4 ) AS for the quantum of the rate of maintenance payable by the husband to the wife, the learned single Judge has placed reliance mainly on the income-tax assessment orders produced by the husband for the years 1967-68 and 1968-69. The learned Judge also noted that there has been a marked increase in the income of the husband from 1965-66. It is seen that while the income of