ORDER
1. This appeal by the petitioner-wife has been preferred against the judgment and decree dated 15th May, 1992 passed by the 1st Additional District Judge Ghazipur whereby he dismissed the wife’s petition under Section 18 of the Hindu Adoptions and Maintenance Act’ and decreed the counter-claim of the husband-respondent for divorce and further granting the wife-petitioner permanent maintenance and alimony @ Rs: 500/- per month from the date of the judgment.
2. I have heard Sri S.K. Varma, learned counsel for the appellant, and Sri Sankatha Rai, learned counsel for the respondent.
3. The appellant had filed a petition claiming maintenance @ Rs. 1000/- per month: Her case was that she was married to Vijai Narain Singh respondent according to Hindu religious rites in the year 1977 at Village Mainpur, Pargana Karanda District Ghazipur and after the marriage she started living with the respondent in his village Manihara Pargana Barhwal District Varanasi. Later the respondent got employment in the bank and for some time this couple lived at Chandauli District Varanasi. Later the
respondent was transferred to Sadath Branch of the Union Bank of India and the two lived together at that place. In due course of time the respondent got some promotions and started getting handsome salary. The respondent, therefore, started neglecting petitioner-wife thinking that she was not sufficiently educated and lacked manners for appropriate social behaviour. He, therefore, stopped keeping the petitioner at the place of his employment and sent her to his village where she lived for some time. Finding herself neglected the petitioner-wife went to her parent’s house and started living there. In the absence of the petitioner the respondent wanted to marry some educated girl and the wife therefore, filed suit No. 13 of 1983 to restrain the husband respondent from remarrying. The suit was decreed on 15th September, 1985. In his written statement filed in the aforesaid suit the husband is alleged to have made certain false derogatory statements against the wife causing her mental agony. It was further claimed that the husband-appellant filed suit No. 97 of 198’3 in the Court of the Civil Judge, Varanasi for dissolution of the marriage. Subsequently the husband expressed regrets for his conduct and the said suit No. 97 of 1983 was compromised on 15th April, 1985 and it was agreed that they will live together and the husband would not repeat undignified behaviour. After the aforesaid compromise petitioner again started living with the husband respondent in his village. The husband repeatedly assured the petitioner-wife that he would take her to the place of his employment where he himself resides but fie never did so. It is alleged that occasionally the respondent came to his village but he neglected the petitioner and never had any contact with her as a husband nor provided any means of maintenance. As a result the other members of the family of the husband also started neglecting the petitioner so much so that they would not accept food or water from the petitioner. On one occasion the husband is alleged to have given a beating to the petitioner without any reason at the instance of the family members and started addressing the petitioner as ‘chural’. As a result of such
behaviour the petitioner-wife claims to have left the husband’s village about 1, 1/2 years prior to the petition and started living with her parents. Even then the husband did not establish any contact with the wife nor offered to provide any means of maintenance. It was claimed that she has no means of her own to maintain herself and she is living as a dependent of her parents. The respondent is alleged ‘ to have been employed as Branch Manager in the Union Bank of India at Marookpur District Varanasi and drying a salary of Rs. 4500/- per month. It was further alleged that the husband had agricultural income of about Rs. 1500/- per month from agricultural holding measuring about 25 Bighas. On these allegations the appellant-wife had claimed a decree for separate maintenance @ Rs. 1000 /-per month.
4. The respondent contested the petitioner’s claim. The marriage was admitted. It was also admitted that the respondent was employed in the Union Bank of India. The earlier litigation between the parties in suit Nos. 13 of 1983 and 97 of 1983 was also admitted. It was also admitted that after the compromise the petitioner-wife started living with the husband-respondent.
5. It was pleaded that the petitioner’s claim was not maintainable in a Court at Ghazipur. According to the husband-respondent the wife was of an irritable nature and did not have regular menstruation and she was always in a tense mood and whenever the husband wanted to have sexual, intercourse with her the wife always avoided on grounds of illness and inability. The husband made all attempts for the treatment of the petitioner but there was no improvement. The condition of the wife got worse day by day and she tried to go to her parent’s house very frequently. She started quarrelling with the husband and his family members and indulging in marpit and vulgar abuses. She also accused the husband of having illicit relations with some one else and she used to quarrel and abuse the husband in the presence of his relative and family members. All attempts by the husband to improve the behaviour of the wife bore no fruit. In such circumstances the family members of the wife and the husband decided that
any social contact between the husband and the wife be terminated and for this purpose writing dated 27th November, 1980 was written and it was thereafter that the wife filed suit No. 13 of 1983 with wrong allegation. It was on the expression of regrets by the wife and members of her family that the husband compromised the suit. Even thereafter there was no improvement in the behaviour of the petitioner-wife and she went to her parents’ house of her own will whenever she liked. With such allegations the husband set up a counter-claim in the aforesaid proceedings claiming that it was not possible for him to live with the petitioner-wife. It was alleged that in January, 1987 the wife had left for her parent’s house along with all the valuables. It was claimed that the wife treated the husband with cruelty and it was not possible for him to live with her and the marriage be dissolved by a decree of divorce. The husband claimed that he has to maintain his mother, the widow of his younger brother and her children and a widowed sister who has four children. It was alleged that the amount of maintenance claimed at Rs. 1000/- per month is excessive and the husband-respondent cannot pay that amount. According to him she was not entitled for more than Rs. 300/- per month as maintenance.
6. The wife (appellant) filed a replication denying the allegations made against her and claiming that the counter-claim for dissolution of marriage was not maintainable and was barred by time.
7. On these pleadings, the trial Court framed the following issues:–
(1) Whether petitioner is entitled for separate residence and maintenance, if so its effect?
(2) Whether the petitioner has treated the opposite party with cruelty and counter-claim for divorce is maintainable, if so its effect?
(3) Relief?
8. On 25th March, 1992 the trial Court directed the parties to appear for reconciliation on 7th April, 1992. On 7th April, 1992 it was noted in the order sheet that the parties
are not ready for compromise. Therefore, 20th April, 1992 was fixed for evidence. The hearing was adjourned to 12th May, 1992 when the statement of the petitioner Smt. Neelam Singh commenced. It was completed on 13th May, 1992 on which date when with the examination of PW 2 Surendra Singh the petitioner’s evidence was closed. On 14th May, 1992 the statement of PW 1 Vijai Narain Singh was commenced but could not be completed. On 15th May, 1992 the wife-petitioner moved an application praying that an issue be framed regarding the jurisdiction of the Court about the counter claim. The trial Court rejected the same observing that counter-claim for divorce is permissible under the Hindu Marriage Act and the application has been moved to harass the opposite party who is still in the witness box. After the rejection of the aforesaid application, the petitioner-wife moved another application for time to file revision petition against the rejection of the aforesaid application. That too was rejected. Then the petitioner-wife moved an application that she did not expect impartial justice from the Court and there was no time to move the District Judge the same day for transfer of the case and she wanted 20 days time for moving an application and bringing a stay order. This too was rejected. DW 1 was present in the witness box. The counsel for the petitioner-wife declined to cross-examine him. Then another witness was examined. He too was not cross-examined and the counsel for the petitioner withdrew from the case and the Court pronounced the judgment that very day after hearing the counsel for the husband-respondent.
9. In this appeal the first point agitated between the parties was whether the counterclaim set up by the husband-respondent in his reply to the petition for maintenance was maintainable. The proceedings before the Court were of a petition for maintenance under the Hindu Adoptions and Maintenance Act. The trial Court has taken the view that the counter-claim for divorce is maintainable by virtue of Section 23-A of the Hindu Marriage Act. Section 23-A says that in any proceeding for divorce or judicial separation or restitution of conjugal rights, the respon-
dent may not only oppose the relief sought on the ground of petitioner’s adultery, cruelty or desertion, but also make a counter-claim for any relief under this act on that ground; and if the petitioner’s adultery, cruelty or desertion is proved, the Court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground. As is evident, Section 23A provides for a counter-claim only if the proceedings are for divorce or judicial separation or restitution of conjugal rights. The proceedings launched by the wife were not for any such relief but were only for the grant of maintenance. Therefore, on its very face the counter-claim was not permitted by Section 23-A of the Hindu Marriage Act. Sri San-katha Rai, learned counsel for husband-respondent fairly conceded that Section 23-A of the Hindu Marriage Act could not be invoked in the present case 16 sustain the counter-claim but he pressed into service Rule 6-A of Order 8 of the Code of Civil Procedure which provides that defendant in a suit may, in addition to his right of pleading a set off under Rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counterclaim is in the nature of a claim for damages or not. The proviso to Rule 6-A(i) says that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. Sub-rule (2) then provides-that such counter-claim shall have the same effect as a cross suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counterclaim. Learned counsel for the appellant contended that the provision of. Order 8 of Rule 6-A permitted a counter-claim in a suit if the claim set up in the suit and in the counterclaim was of the same genus and that a counter-claim cannot be set up to make the proceedings heterogeneous. According to him the claim of divorce was of a different
nature and could not be set up as a counterclaim in a suit for maintenance. He placed reliance on Jashwant Singh v. Smt. Darshan Kaur, AIR 1983 Pat 132 in which it was held that Rule 6-A aforesaid confers a right to set up a counter-claim only in cases involving money claim. In that case the petitioner had filed a suit for declaration that he had a right to remain over the suit property as a license for a period commencing from 29th September, 1980 and Had also claimed a decree for permanent injunction. The defendant had set up a counter-claim for eviction alleging that the petitioner was a trespasser. A Division Bench of the Patna High Court took the view that such a counter-claim could not be set up. This view has been dissented from a learned single Judge of this Court in Bhairon Prasad v. Hargovind Gupta, 1988 All WC 117 in which it was held that it is permissible to plead counter-claim in suits other than suits for recovery of money as well. The learned single Judge agreed with the view taken by the Kerala High Court in Raman Sukumaran v. Velayudhan Madahavan, A.IR 1982 Ker 253. In that case the plaintiff had filed a suit for specific performance in which the defendants 3 and 4 set up a counter-claim for possession allegating that they had purchased the property in question by means of a registered sale deed. This Court held that the counter-claim was maintainable. The learned single :Judge however, held that it is not open to say that any unconnected, claim can be raised or pleaded as a counter-claim. The Bombay High Court has also dissented from the Patna view in Manikchand Fulchand Katafiya v. Lalchand Harakchand Katariya, AIR 1994 Bom 195. In my view therefore, the contention that the counter-claim could be set up only in a money suit is not maintainable.
10. The contention of the learned counsel for the appellant further was that the claim for divorce was of a different character than a claim for maintenance and therefore as observed by the learned single Judge of this Court in the case of Bhairon Prasad (1988 All WC 117) (supra), an unconnected claim cannot be raised and pleaded as a counter-claim. This contention in my view is also not tenable
because the claim of maintenance from the spouse and the counter-claim by that spouse are not so different in character as to make the proceedings heterogeneous. The purpose of enacting Rule 6-A and providing for setting up a counter-claim is to avoid multiplicity of proceedings and help in early decision of the whole controversy between the parties. There is quite a substantial common field that has to be transversed by the parties in their respective claims for maintenance and divorce. Cruelty is a ground for divorce under Section 13 of the Hindu Marriage Act and so is desertion. The same are the grounds on which a Hindu husband or wife can claim maintenance under Section 18 of the Hindu Adoptions and Maintenance Act. In this case the husband as well as the wife were accusing each other of desertion as well as cruelty. In a matrimonial matter regarding the maintenance or divorce the conduct of the respective party has to be looked into and, therefore, the proceedings for maintenance and divorce cannot be said to be of different genus. They arise out of the same common bond i.e. the marriage and, therefore, unless otherwise restricted a counter-claim for divorce would be maintainable under Order 8, Rule 6-A in proceedings for the grant of maintenance.
11. However, in the alternative the learned counsel for the appellant contended that the Hindu Marriage Act has made special provisions in Section 19 to 28 prescribing the procedure for petitions under the Hindu Marriage Act in which Section 23-A makes a special provision prescribing the circumstances in which a counter-claim will be maintainable and, therefore, these special provisions override general provisions of the Code of Civil Procedure and Order 8, Rule 6-A could not be invoked for setting up a counter-claim for divorce. Learned counsel for the respondent, on the other hand contended that by virtue of Section 21 of the Hindu Marriage Act the provisions of the Code of Civil Procedure have been applied to proceedings under that Act and, therefore, the counter-claim was maintainable under the provisions of Order 8.
12. Sections 19 to 25 of the Hindu. Marriage Act are found under the title. Jurisdic-
tion and procedure which indicates that the Act contains special provision regarding the jurisdiction and procedure in relation to proceedings under the Hindu Marriage Act. Section 19 provides for the territorial and other jurisdiction. It says that every petition under this Act shall be presented to the district Court within the local limits of whose ordinary original civil jurisdiction– (i) the marriage was solemnized, or (ii) the respondent, at the time of the presentation of the petition resides, or (iii) the parties to the marriage last resided together, or (iv) the petitioner is residing at the time of the presentation of the petition…. The “district Court” has been defined in Section 3(b) to mean in any area for which there is a city Civil Court, that Court, and in any other area the principal Civil Court of original jurisdiction, and includes any other Civil Court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act. Thus the Court in which the proceedings can be filed have been specifically specified and a proceeding under the Hindu Marriage Act cannot be filed in a Court in which a original suit could be filed with reference to Sections 15 and 16 of the Code of Civil Procedure. Section 20 of the Hindu Marriage Act makes provision, about the contents and verification of petitions. Subsection (1) of Section 20 says that every petition presented under this Act shall state as distinctly as the nature of the case permits the facts on which the claim to relief is founded and except in a petition under Section 11, shall also state that there is no collusion between the petitioner and the other party to the marriage. Sub-section (2) slates that the statements contained in every petition under this Act shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing, be referred to as evidence. Thus, Section 20 contains special provision about the pleadings of the parties and also contain a special rule that the pleadings can be treated as evidence. Section 21 then says that subject to the other provisions contained in this Act and to such rules
as the High Court may make in this behalf, all
proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure. Section 21 thus indicates that the application for Code of Civil Procedure is subject to the provisions made in the Hindu Marriage Act or the Rules made by the High Court if any and on matters not covered by the Act or the Rules, the Code of Civil Procedure will regulate the proceedings. If the Code of Civil Procedure was to be generally applicable, there was no necessity for making the aforesaid special provisions and the other provisions which shall be referred to hereafter.
13. Section 21-A specifically deals with the transfer and consolidation of cases. Section 21-B provides for the expeditious disposal of petitions of appeals arising therefrom. Section 21-C then makes a special provision for documentary evidence providing that no document shall be inadmissible in evidence in any proceeding at the trial of a petition under this Act on the ground that it is not duly stamped or registered. Section 22 provides about the place for the conduct of proceedings and states that every proceedings under this Act shall be conducted in camera and it shall not be lawful for any person to printer publish any matter in relation to any such proceeding. Section 23 places a special burden on the Court to see that there was no collusion between the parties and the party does not take advantage of his wrong disability etc. It also provides that it shall be the duty of the Court in the first instance to make every endeavour to bring about the reconciliation between the parties.
14. Now we come to Section 23-A which is most important for the present purpose. The heading of the section is “relief for respondent in divorce and other proceedings”. It says that in any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner’s adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on that ground, and if the petitioner’s
adultery, cruelty or desertion is proved, the Court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground. Section 23-A thus makes a special provision for setting up a counter-claim. As already noted, by virtue of Section 19 any claim under the Act has to be presented in the form of a petition to the District Court. The counterclaim set up in the written statement is not a petition within the meaning of Section 19. Section 23-A is an exception to Section 19 in so far as it permits a deviation by providing that the respondent may make a counterclaim for any relief under the Hindu Marriage Act and this can be done only in a proceeding for divorce or judicial separation or restitution of conjugal rights. A claim for maintenance is not mentioned in Section 23-A as the proceeding in which a counter-claim could be set up. That is why the learned counsel for the husband-respondent readily conceded that Section 23-A could be invoked to sustain a counter-claim. As regards the general provisions of the Code of Civil Procedure they apply to ordinary suit for which there is no special provision under the Hindu Marriage Act, which as discussed above, contains very specific and special provision about the manner in which a claim for dissolution of marriage and for other reliefs under the Hindu Marriage Act has to be framed, preferred and tried. It is settled law that the special provision override the specific provision. In my view, therefore, a claim for divorce under the Hindu Marriage Act could not be set up as a counter-claim in opposition to a claim for maintenance under the Hindu Adoptions and Maintenance Act. I, therefore, hold that the counter-claim for dissolution/divorce of marriage set up by the husband respondent by way of counter-claim in the Court below was not legally sustainable and should have been dismissed. I hold accordingly and reverse the finding arrived at by the Court below.
15. In view of the above findings the counter-claim for divorce preferred by the husband-respondent will have to be dismissed and we are left with the wife’s petition for maintenance.
16. The marriage between the parties is admitted. Under Section 18 of the Hindu Adoptions and Maintenance Act a Hindu wife is entitled to be maintained by her -husband during her lifetime. Under subsection (2) of Section 18 a Hindu wife is entitled to live spearately from her husband without forfeiting her claim for maintenance if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of wilfully neglecting her. In the present case the allegations made by the appellant-wife are that in the beginning, after the husband was employed with the bank he kept the wife with him at Chadauli as well as at Sudath. Thereafter husband got further promotions and started getting handsome salary. Therefore, he started having a feeling that the wife being rustic and not well mannered was not fit for him. The husband, therefore did not keep her at his place of employment and left her at his parent’s village. There she found herself neglected and therefore, went to her parent’s house. The husband then started thinking of contracting a second marriage and the wife had to file suit No. 13 of 1983 to restrain him from doing so. This suit was decreed on 16th September, 1985. The husband in his written statement made remarks to tarnish the character of the wife which caused her mental agony. The husband also filed a suit for divorce being suit No. 97 of 1983. Then on the intervention of respective well wishers, the husband expressed regrets and on 15th April, 1985 the suit was compromised agreeing to live together as husband and wife. Thereafter the wife came to the house of the husband and started living. The husband continued to assure her that he would keep her at his place of employment but he never kept her with him. He at times came to the village and treated the wife with neglect and neither loved her as a wife nor took care of her needs. As a consequence the family members of the husband also developed a sense of hatred of a claimant wife and wilfully neglected her. This conduct of the husband and the family members adversely effect the mental state of the wife. On one occasion the husband gave her a beating and abused her and started
addressing her as ‘chural’. He thus, treated the wife with cruelty as a result of which she lived with her parents’ place and was living with them for about 1-1/2 years prior to the filing of the claim for maintenance. It was claimed that even thereafter the husband took no care of the wife. Thus, the wife’s claim for maintenance was based on allegations which according to her amounted to desertion of the wife and treating her with cruelty.
17. In the written statement filed by the husband, there was no specific denial of the allegation that after his employment in the bank and certain promotions he stopped keeping the wife with him at his place of employment and keeping her in the village with his parents without her consent. The husband-respondent alleged that the wife is of a quarrelsome nature. In paragraph 3 it was alleged that she was incapable of sexual intercourse. The respondent alleged that the wife used to quarrel and abuse the husband and his family members and in spite of all efforts there is no improvement in his behaviour. According to the husband suit No. 13 of 1983 was filed by the wife with wrong allegation and the husband compromised the matter to save his reputation. According to him the claimant and her family members had pleaded with him to excuse the wife and had assured good conduct in future. There was however, no improvement in her behaviour even after the compromise and in the year 1987 she went to her parents’ house where she was living since then.
18. In support of their respective cases the wife had examined herself and her brother. Surendra Singh. On the other hand, the husband had examined himself and one Prakash Singh, The lower court had framed an issue whether the petitioner is entitled for separate residence and maintenance if so the terms ? The issue was crudely framed and the allegations of desertion and cruelty were not highlighted. The issue has been answered in favour of the wife without a finding that the husband is guilty of desertion and cruelty. The claim was for maintenance under the Hindu Adoptions and Maintenance Act but
the learned lower court has held that since jointly living of both the parties was not possible the wife is entitled to permanent maintenance and accordingly the issue is answered in her favour. Permanent maintenance is granted under Section 25 of the Hindu Marriage Act and not under Section 18 of the Hindu Adoptions and Maintenance Act. The learned lower court thus, confused the issues.
19. The question is whether the husband has deserted the wife and whether he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband.
20. Since the parties had compromised their disputes in the year 1985 it is not relevant to look into their conduct prior to 15th April, 1985 the date on which the compromise was entered into as they condoned each other’s faults. The wife’s allegation is that the husband assured her that he would keep her with him at the place of his employment but he kept her at his village along with parents and in spite of repeated assurance did not take her to his place of employment so as to live with him, This was alleged in paragraph 12 of the petition and further acts of neglect have been described in paragraphs 13 to 16 of the petition of which there was only a one word ‘denial’ and there was no specific denial of each allegation in the written statement in which it has not been explained why the husband is not keeping the wife with him in the towns where he was employed and where he himself lived. It is also not denied that it is against the wishes of the wife that she was dumped in the village nor is there any specific denial to the incident of alleged abuses and beating nor is there any assertion that the husband have ever taken any steps to look to the comforts of the wife and provide for her maintanance.
21. In her statement the wife Smt. Neelam Singh had denied having treated the husband or the family members with contempt. In her statement the wife Neelam Singh has stated that her husband has stopped looking after her and she was living at the house of her
parents. She has also stated that she would feel comfortable in living with him and as long as she was with her husband at the place of his posting they had a comfortable life as husband and wife. She denied having ever refused to have sexual intercourse with her Husband. PW 2 Surendra Singh is the brother of Smt. Neelam Singh. He has also stated that her husband has neglected and turned her out of her house as a result of which she was forced to live with him for the last 2 1/2 years.
22. On the other hand, the husband stated that she had irregular menses and the doctors ultimately pronounced that she cannot bear a child. This resulted in mental tension to the wife who became short tempered and started abusing him and his family members and quarrelling with them. He says that after the compromise in the earlier litigation there was no improvement in her behaviour who continued with her quarrelsome and cruel behaviour and his younger brother committed suicide as a result of this situation. He claimed that it was not possible for him to live with the wife and he wants a divorce. PW 2 Prakash Singh is a resident of the same village and stated that the claimant Smt. Neelam Singh used to quarrel with and illtreat the husband and his family members. PW’s 1 and 2 were not cross-examined on behalf of the wife because as stated above she insisted on framing of an issue about jurisdiction and for that purpose moved an application which was rejected. Thereafter she wanted time for filing a revision which too was not allowed. It was not pleaded before me that the case be remanded back to the court below to allow the wife an opportunity of cross examination and the appeal was argued on merits on the evidence as it is available on record.
23. Desertion has been discussed in Mulla’s principles of Hindu Law, fifteenth edition by Sunderlal T. Desai at page 117 as under:–
“A Hindu wife is entitled to live separately from her husband and claim maintenance, if he is guilty of desertion. The expression desertion represents a legal conception and is one very difficult to define. It has been said more than once that no judge has ever
attempted to give a comprehensive definition of desertion, and that probably no judge would ever succeed in doing so, but among the descriptions of desertion one which has always appealed to courts trying matrimonial cause’s is that “desertion” is a “a withdrawal not from a place, but from a state of things.” The clause aims at giving the meaning of desertion as abandonment of the wife by the husband without reasonable cause and without her consent or against her will or wilful neglect of the wife by the husband.”
24. Admittedly, the husband is handsomely employed in a Bank and is living in the towns where he is posted as Manager in the respective branches of the bank. He is not keeping the wife with him at such places and the wife was left at the village house without her consent. The wife has alleged that even after the compromise the husband repeatedly assured her that he would keep her at his place of posting but he never fulfilled the assurance. Neither in the written statement nor in the evidence there is any explanation as to why the husband-does not want to keep her with him. The allegation that she is quarrelsome and indulges in abuses to his parents and other family members is not supported by any cogent material and cannot be a ground for dumping her in the village to live more as a maid, for the family than as a wife. A very serious allegation has been made, in the husband’s statement that his brother committed suicide being tired of the situation, This statement is not accompanied by any details of the inpident which led his brother who was admittedly married and had a child, to commit suicide. No family member has been examined to establish the wife’s conduct towards them and on the of her hand a co-villeger has been produced who could be no good witness for a personal matter like this. Since the wife was sought to be compelled to live in the village uncared for and against her will she was bound to become some what peevish and quarrelsome but that could be no justification for the husband for not living with her and not maintaining her as a wife: As a matter of fact this default of the husband only could be the cause for the wife’s ill temper if any. The wife has not been able to
bear any child and that seems to be the reason why the husband is withdrawing from her company and get rid of her. His conduct shows that it is he who wants to get rid of his wife. Earlier the wife filed a suit for restraining the husband from marrying again which was decreed on 16th September, 1985, though without a finding that the husband was intending to marry again. As counterblast the husband had filed a petition for divorce which was dismissed on the basis of compromise dated 15th April, 1985. The copy of the comprise shows that the husband expressed regrets for filing the petition for divorce. In the present proceeding also the appellant-wife first filed the claim for maintenance and it was in reply thereto that the husband set up a claim for divorce accusing the wife of cruel behaviour without giving any particular instance of such behaviour. Admittedly for a long time the husband is not keeping the wife with him at his place of posting where he ordinarily resides and this is against the wishes of the wife. The husband has offered no justification for forcing the wife to live in the village a life of isolation and neglect. The husband has not said a Word that in the village he took any care to provide the wife a decent living in consonance with his own social status. In my view, therefore, the conduct of the husband in not keeping the wife with him and in not providing her comforts of life which he should according to his social and financial status, amounts to deserting the wife within the meaning of Section 18(2)(a) of the Act. It is an act of wilful neglect as well because there is no reason able cause for his not living with the wife and in not sharing with her the comforts that he is himself enjoying.
25. As regards cruelty referred to in Section 18(2)(b) it has to be such as to cause a reasonable apprehension in her mind that it wilt be harmful or injurious to live with her husband. Smt. Neelam Singh in her statement has stated that she will feel comfort in living with her husband. She has not stated that she has any apprehension in her mind that it will be harmful or injurious to live with her husband though there is evidence of neglect and desertion. There is no good evidence of
any physical or other cruelly, though in the evidence it was stated that the husband gave her a beating and turned her out of the house, but in the claim petition the allegation was that the circumstances forced her to shift to her parents’ house. Therefore, cruelty as a ground for maintenance is not established.
26. The next point that arises for determination is about the quantum of the maintenance allowance.
27. The appellant had claimed maintenance @ Rs. 1000/- per month. As stated above, her case was that the husband is employed as Branch Manager in the Union Bank of India and was getting an amount of Rs. 4500/- per month as salary. In addition he had agricultural income of about Rs. 1500/-per month. In his written statement the husband respondent has not denied that he was getting a salary of Rs. 4500/ – per month. As between the parties he is the only person who knows the amount of salary he gets from the bank and the deductions if any made therefrom on account of taxes, provident fund etc. No such details were mentioned either in the written statement or in his statement on oath in which he stated that he was getting about Rs. 4000/- as emoluments. He has also admitted that at least three Bighas of agricultural land is owned by him. He has stated that he has in his family, his mother, the widow of his brother alongwith a child, another brother and his wife and a sister. There is nothing in his evidence to show that he is under any legal obligation to maintain them and, therefore, their presence cannot affect the amount of maintenance to which the petitioner would be entitled looking to the social and financial status of the husband. For reasons best known to him the husband has neither disclosed himself nor filed a certificate from the employer to show the details of his salary. Admittedly the amount that he is getting from the bank is not less than Rs. 4000/- per month. The wife claims only Rs. 1000/- per month which is about 25 percent of Rs.4000/-. The wife has a right to live according to status of her husband. She needs not only food and clothing but also some means for medical attendance travelling
entertainment etc which are equally necessary for a reasonable life. In addition she must be able to have a little saving for times of need. Therefore, the amount of Rs. 1000/- per month claimed by her as maintenance is not unreasonable looking to the needs of the wife nor is it burden-some looking to the means of the husband. In my view, therefore the claimant-wife was entitled to maintenance @ Rs. 1000/- per month from the date of the presentation of the petition and her claim on that account deserves allowance.
28. The present appeal was filed on 11th August, 1992. The appellant on 17th October, 1994 moved an application under Section 24 of the Hindu Marriage Act for grant an additional sum of Rs. 500/- per month as maintenance and Rs. 500/- for the litigation expenses. The Court below had made, an order directing the respondent to pay Rs. 500/ – per month as maintenance as well as Rs. 1200/- for litigation expenses. Since in view of the findings recorded above, the appellants’ claim for maintenance is being allowed and since the application in question was not made at the early stage of proceedings, I do not think it necessary to award any amount to the appellant in terms of Section 24 of the Hindu Marriage Act.
29. In view of the above discussions the appeal is allowed. The judgment and decree passed by the court below is set aside. The claim of the respondent husband for a decree of divorce is dismissed. The appellant’s suit is decreed and it is ordered that the defendant-respondent shall pay Rs. 1000/- per month to her as maintenance month to month from the 3rd September, 1991. The arrears of maintenance due up to 31st January, 1995 shall be paid by 28th February, 1995 after adjustment of the amount paid in terms of lower court’s order dated 25th March, 1992 and 15th May, 1992 excluding the amount paid towards litigation expenses. Any balance remaining due after the 28th February, 1995 shall carry interest @ 12 percent per annum from 1-3-1995 till the date of payment.
30. The amount of maintenance due for the month February, 1995 and thereafter shall be paid by the tenth day of following month
failing which the same shall also carry interest @ 12 per cent, per annum from the eleventh day of the following month to the date of actual payment. The lower Court had awarded Rs. 1200/- to the appellant for litigation expenses, the costs in the Court below will therefore be easy. The appellant shall get her costs of this appeal from the respondent.
31. Appeal allowed.