A wife who has been granted a divorce on the ground of desertion is not automatically disentitled to maintenance under Section 25 of the Hindu Marriage Act, unless there is evidence of misconduct on her part after the divorce.

1. This appeal arises out of an application under Section 25 of the Hindu Marriage Act, filed on behalf of the wife-respondent, for permanent alimony and maintenance.

2. The facts, briefly stated, are that Rajinder Parkash appellant and Roshni Devi respondent were married in May, 1976, according to the Hindu rites. On the application moved by Rajinder Parkash, a decree of divorce dissolving the marriage between the parties was granted on 29th of August, 1979. The divorce was granted on the ground of desertion. The application under Section 25 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) was filed on 19th of May, 1979 on the ground that she does not own any movable or immovable property and has no independent source of income. She further alleged that Rajinder Parkash owns about 10 Killas of land and is getting a salary of Rs. 400 per month and is also receiving income of about Rs. 500 per month from the agricultural land. Thus she claimed that she may be allowed a sum of Rs. 200 as permanent alimony. The petition was resisted by Rajinder Parkash appellant. It was told by him that Shrimati Roshni owns land and has income from the land which is sufficient for her needs. He mentioned that he is getting a salary of Rs. 300 per mensem and he has to support his aged parents and a sister.

3. On the pleadings of the parties, the following issues were framed:

1. To what amount of maintenance the petitioner is entitled to in proceedings under Section 25 of the Hindu Marriage Act?

2. Relief.

4. After discussing the whole evidence, the trial Court came to the conclusion that a sum of Rs. 85 per month would be just amount which can be fixed towards maintenance of the wife. Feeling aggrieved, against this, the husband has come up in appeal to this Court.

5. The only point urged on behalf of the appellant is that no maintenance could be allowed under Section 25 of the Hindu Marriage Act because in the decree of divorce dissolving the marriage between the parties, granted on 29th of August, 1979, on the ground of desertion, it was held that it was the wife who deserted the husband for a continuous period of more than 2 years. Under these circumstances, it was contended that the respondent-wife cannot be allowed to take benefit of her own fault. Moreover, according to the learned counsel, the Court, while granting permanent alimony and maintenance under Sec.25 of the Hindu Marriage Act, will take into consideration the conduct of the parties and other circumstances of the case which may seem to the Court to be just. According to the learned counsel, this fact has not been considered by the learned Additional District Judge and, in view of the conduct of the wife, she is not entitled to any maintenance. In support of his contention, he also referred to the provisions of sub-section (4) of Section 125 of the Code of Criminal Procedure, 1973, wherein it has been provided that no wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. He cited Baldev Raj V/s. Pushpa Rani, 1970-72 Pun LR 291: (AIR 1970 Punj 515) in support of this contention.

6. I have heard the learned counsel for the appellant at a great length but I do not find any force in his contentions.

Section 25 of the Hindu Marriage Act reads as under:-

"(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 of the applicant, the conduct of the pa