The right to maintenance is a substantive and continuing right and the quantum of maintenance is variable from time to time.

( 1 ) A Family Court, under the purported exercise of powers under sub-sec. (2) of S. 25 of Hindu Marriage Act, 1955 (hereinafter referred to as the Act) has increased the maintenance allowance of the wife. Hence this appeal, at the instance of the husband.

( 2 ) ON 24/08/1973, the Second Civil Judge, Kanpur, accepted the petition preferred by the appellant under S. 13 of the Act seeking the dissolution of his marriage. The allegations in the petition were these. Parties were married in June, 1967. In the middle of September, 1968, the wife left the husband without any lawful justification and did not return. The wife was a woman of peevish nature, irritable temper, foul tounge, quarrelsome and abused the husband in the foulest language. She was unwomanish and beastly in the matter of sex indulgence.

( 3 ) THE wife admitted the allegations made against her deposition. She prayed that a decree of divorce be passed in favour of the husband, provided the latter paid a sum of Rs. 200. 00 per month as maintenance allowance during her life time. The husband accepted the offer of the wife.

( 4 ) THE trial Court allowed the aforesaid petition under S. 13 of the Act after recording a finding, though based upon the admission of the wife, that a case of persistent and repeated cruelty on her part had been established. The operative portion of the order, which is relevant, runs :"the petition under S. 13 of the Hindu Marriage Act is hereby allowed. The parties shall bear their own costs. A decree for dissolution of the marriage tie between the parties is hereby passed. The petitioner shall pay a sum of Rs. 200. 00 per month to the respondent during her life time as maintenance allowance (Permanent alimony ). "

( 5 ) THE Family Court repelled the contention of the appellant, that, the decree of the Second Civil Judge having been passed on the consent of the parties, the wife was estopped from getting the order modified in any manner and the amount of maintenance could not be varied.

( 6 ) THE submission that the order of the Second Civil Judge is a consent order cannot be accepted for more than one grounds. First, the order does not disclose that it was passed on the basis of the consent of the parties. The trial Judge records a finding that, on admitted case, a case of persistent and repeated cruelty on the part of the wife has been made out. Secondly, it is to be remembered that S. 13b, which provides for divorce by mutual consent, was inserted into the Act, by Act No. 68 of 1976. Therefore, in 1973 the Court in slisin or proceedings for divorce under S. 13 had no jurisdiction to pass a decree on the basis of consent. Such a decree, if passed, would have been against public policy and, therefore, a nullity. The Court was under a statutory obligation to go into the merits of the case and record a finding that the petition, either of the husband or of the wife, deserved to be allowed on any of the grounds enumerated in S. 13.

( 7 ) THIRDLY, the order dated 24/08/1973, passed by the Second Civil Judge is a composite one in so far as he purports to exercise powers vested in him under Ss. 13 and 25 of the Act. S. 25 empowers any Court exercising jurisdiction under the Act, at the time of passing any decree or at any time subsequent thereto, to pass an order directing either the husband or the wife, as the case may be, to pay for her or his maintenance. Apart from S. 25, there is no other provision in the Act, and particularly in S. 13, providing for the payment of maintenance allowance during the lifetime of either of the spouses. We are not concerned with S. 24 in this case. That apart, it is not the requirement of S. 13 that the Court, while passing a decree of divorce, should award maintenance allowance. Thus, it is clear that the court is clothed with two different powers under two different provisions and these powers may or may not be exercised simultaneously. Even if the power under S. 25 is being exercised at the time o