The conduct of the wife as found in the order allowing judicial separation or granting divorce should be taken into consideration in fixing the quantum of maintenance under S.25 of the Hindu Marriage Act.

1. The appeal arises out of a petition by a Hindu husband under S.10 of the Hindu Marriage Act against his Hindu wife the first respondent in the petition for judicial separation. The ground of the petition is that on the 21st of July, 1963 the first respondent committed adultery with the second respondent impleaded in the petition. Judicial separation was granted by the learned judge holding that the first respondent has been guilty of adultery with the second respondent on 21st of July, 1963. Along with the order allowing judicial separation the court below directed the petitioner to pay maintenance to the first respondent at the rate of Rs, 25/-per mensem under S.25 of the Hindu Marriage Act. The learned judge decreed maintenance to the first respondent on the following reasoning:

"It has been held that in the case of an unchaste wife whose marriage has been dissolved on the ground of her living in adultery bare maintenance allowance or starving allowance alone was permissible and the allowance under the section was to prevent starvation and not claimable as a matter of absolute right irrespective of the conduct of the claimant vide page 1064 Hindu Law by Raghavachari, 5th edition. A judicial separation has been decreed in this case on the ground of adultery. Therefore the wife is entitled only to bare maintenance allowance. I think considering the financial position of the husband and the needs of the parties a monthly allowance of Rs. 25/-would constitute such an allowance and in view of the outrageous conduct of the wife which has provided the ground for the order of judicial separation I would grant it only from this date payable monthly."

2. The appeal is by the petitioner against the order of the court below allowing maintenance to the respondent. The respondent has filed a memorandum of cross-objection for enhancement of the amount decreed by the court below. The order granting judicial separation has become final as there is no appeal by the respondent.

3. The plea of the appellant is that since judicial separation under S.10 of the Hindu Marriage Act has been granted on the ground of adultery the res. pendent is not entitled to maintenance under S.25 of the Hindu Marriage Act. An extreme position was taken that in such cases a court has no jurisdiction under S.25 of the Hindu Marriage Act to decree maintenance. Apart from S.25 (3) of the Hindu Marriage Act learned counsel for the appellant relied on the decision in Rajagopalan v. Rajamma (1966 KLT. 891), to support his contention.

S. 25 (3) of the Hindu Marriage Act reads:

"If the court is satisfied that the party in whose favour an order has been made under this section has remarried 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 shall rescind the order."

Counsel for the appellant contended that when unchastity on the part of a wife subsequent to an order under S.25 (1) of the Hindu Marriage Act is a ground for its cancellation the legislature would not have intended grant of maintenance to her when she was guilty of adultery before the filing of the petition for judicial separation or for divorce.

S. 25 (1) of the Hindu Marriage Act reads:

"Any court exercising jurisdiction under this Act may, at the time of passing any decree or at anytime 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 th