A wife found guilty of unchastity at the time of seeking judicial separation is not entitled to claim maintenance under S.25(1) of the Hindu Marriage Act.

1. In this revision, Mr. T. Chandrasekhara Menon, learned counsel for the petitioner, challenges the orders of the two courts, directing his client to pay maintenance or what is called, in the orders, as starving allowance, to the respondent herein at Rs. 12-50 per month.

2. The quantum of the amount allowed as maintenance does not loom large in this C. R. P. and in fact when the two courts have concurrently found that if maintenance is to be granted to the respondent, then having due regard to the sources of income of the petitioner and the means, if any, available to the respondent, Rs. 12.50 has to be paid per month, obviously the petitioner cannot challenge that question alone, in this court under S.115 of the Code.

3. But the contention that has been taken is a larger one namely, that under the circumstances, in which the petitioner asked for judicial separation, as against respondent and later on also obtained a divorce alleging and establishing unchastity on the part of the respondent, the latter has no right at all to be awarded any maintenance whatsoever, under S.25 of the Hindu Marriage Act, 25/1955.

4. It is necessary to set out briefly the circumstances, under which, the claim for alimony was made by the respondent. The petitioner-husband, there is no controversy, filed O. P. 3/58 under S.10 and 13 of Act 25/1955; and the District Court, Ernakulam granted judicial separation under S.10 of the Act, by a decree dated 12 21960.

5. The petitioner alleging that after the decree in O. P. 3/58, the respondent, has not resumed cohabitation with the petitioner, for a space of 2 years required the dissolution of the marriage by a decree for divorce, and filed O. P. 5 of 1962 under S.13 of the said Act for divorce.

6. In that application the respondent, no doubt admitted the fact that there is a decree for judicial separation in O. P. 3/58; but nevertheless stated that she is still prepared to go and live with the petitioner. She also claimed to be entitled to be paid alimony under S.25 of the said Act and for that purpose she filed I. A. 61/63. The respondent claimed alimony at the rate of Rs. 45/- per month on the ground that she is accustomed to a decent way of life and on the basis that the petitioner is getting not less Rs. 100/-as monthly income. It is only necessary to note that a decree for divorce has been passed in favour of the petitioner on the application, O. P. 5/62 filed by him. That aspect is no longer in controversy between the parties. But at the time of passing the decree of divorce, the court, after a consideration of the means of the parties, has directed the petitioner to pay the respondent a sum of Rs. 12.50 as alimony. That claim was recognised in favour of the respondent in the application filed by her as I. A. 61/63.

7.Apart from disputing the allegation of the respondent regarding the income derived by the petitioner, the claim of the respondent for getting alimony under S.25 of the Act was contested by the petitioner on the ground that the respondent is not entitled to any alimony whatsoever in view of the fact that the judicial separation in O. P. 3/58 was allowed on the ground of immorality on the part of the wife.

8. That contention was no doubt controverted by the respondent on the ground that she has got a right to claim maintenance under S.25 of the Act; and if the necessary circumstances are established, it will be open to the petitioner to have the order cancelled or modified in accordance with the provisions contained in S.25.

9. The learned Subordinate Judge, who dealt with the matter in the first instance, adverts to the provisions of S.25 of the Act. The respondent has clearly indicated that she has no intention of marrying again. Therefore the court proceeds on the basis, that the alimony has to be fixed, dependent upon the income and possession of other properties and the conduct of parties. The learned judge then considers the question as to whether the ground on which judicial s