MANU/DE/0012/1996

Equivalent/Neutral Citation: AIR1996Delhi54, 59(1995)DLT635

IN THE HIGH COURT OF DELHI

F.A.O. No. 158 and 151 of 1986
Decided On: 05.05.1995
Veena Kalia Vs. Jatinder Nath Kalia and Ors.
Hon'ble Judges/Coram:
D.P. Wadhwa, J.
Counsels:
For Appellant/Petitioner/plaintiff: Mr. Manmohan, Adv
Case Note:
a) The case questioned whether a judgment of a foreign Court on a ground
not available under Indian law could operate as res judicata, as per Indian
law - It was observed that divorce judgment was obtained by the husband
from the Court of Canada on the ground that was not available according to
the law that prevailed in India - It was ruled that the said judgment was not
binding hence could not operate as res judicata
b) The case focused on finality of the judgment obtained in the foreign Court
under Section 13 of the Civil Procedure Code, 1908- It was observed that
divorce judgment was obtained by the husband from the Court of Canada on
the ground that was not available according to the law that prevailed in India
- It was ruled that the said judgment was not binding hence could not
operate as res judicata
c) The case dealt with the considerations for grant of maintenance an
permanent alimony under Sections 24&25 of the Hindu Marriage Act - It was
found that judicial notice could be taken by the Court for rise in the cost of
living on account of inflation - Also could link the maintenance and the
permanent alimony with the cost of living index
JUDGMENT
1. These appeals are by the appellant-wife against the order dated 23 November, 1985
of the Additional District Judge, Delhi, whereby her two petitions, one for divorce under
the Hindu Marriage Act. 1955 (for short 'the Act') and the other for maintenance
pendente lite filed against the first respondent-husband were dismissed as not
maintainable. This was on the ground that the petitioner had accepted the judgment of
the foreign Court dissolving the marriage between her and the first respondent on a
petition filed by him. The learned Judge held that the present petition was barred by
principles of res judicata or in any case it was a mala fide attempt on the part of the
petitioner to harass the respondent-husband and that it was nothing but a misuse of the
process of the Court.
2. The petitioner filed a petition for divorce against the first respondent-husband under
the provisions of Section 13(1)(i). (i-a) and (i-b) of the Act seeking divorce on the
grounds of adultery, cruelty and desertion. The first respondent-husband was allegedly
living with the second respondent in adultery with whom, he said, he had married after

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his divorce from the petitioner. Both the respondents are residents of the United States
of America. This petition for divorce was filed in September, 1984 in the Court of the
District Judge, Delhi. The petitioner said she and the first respondent were married in
India according to Hindu rites on 12 October, 1968 and that two daughters were born to
her in 1970 and 1971. In February, 1972 the first respondent left for England to pursue
further studies and in 1973 he went to Canada. From there he wrote a letter to the
petitioner to join him in Canada. That was in June, 1973. In November, 1973, however,
he wrote another letter to the petitioner that she should not come to Canada as he was
interested in getting their marriage dissolved. In August, 1975 the first respondent filed
a petition for divorce in the Supreme Court of Nova Scotia in Canada on the ground that
his marriage with the petitioner had permanently broken down. The petitioner could not
contest these proceedings, she having no means to go to Canada. On 22 December,
1975 the Supreme Court of Nova Scotia granted a divorce decree nisi in favor of the
respondent-husband to be made absolute within three months. This decree of divorce
was made final on 19 May, 1976. The Court at Nova Scotia further ordered that
respondent-husband would pay to the petitioner an amount of Rs. 1,000/- per month
for her maintenance and for that of the children w.e.f. 1 July, 1976 till she remarried.
Since the respondent-husband failed to pay maintenance to the petitioner she
approached the Court at Nova Scotia by letter and prayed that she be provided legal aid
and on that proceedings were initiated and warrants of arrest were issued against the
first respondent. He, it appeared, left Canada for the United States. However, he
deposited a cheque of Rupees 5,000/- with the Legal Aid Cell in Canada and petitioner
says he misled them that he could not pay maintenance as he had lost the address of
the petitioner. The petitioner then states how she was harassed for not being paid
maintenance right from 1978 to 1985. Petitioner says subsequently she came to know
that the first respondent married the second respondent and had three children from
her. She said the ex parte decree of divorce obtained by the first respondent was not
binding on her and was illegal, and that the petitioner and the first respondent
continued to be wife and husband. On various averments set out in the petition the
petitioner sought divorce on the ground of adultery, cruelty and desertion, and on these
grounds the petitioner would be entitled to a decree of divorce if she proved that the
first respondent-- (1) has, after the solemnization of the marriage, had voluntary sexual
intercourse with any person other than the petitioner [Sec. 13(1)(i)]; or (2) has, after
the solemnization of the marriage, treated the petitioner with cruelty [Sec. 13(1)(i-a)];
or (3) has deserted the petitioner to a continuous period of not less than two years
immediately preceding the presentation of the petition [Section 13(1)(8-b)].
3. On notice being issued, the first respondent appeared and filed an application under
Section 11 read with Section 151 of the Code of Civil Procedure praying for dismissal of
the petition. He did not file any written statement. He referred to a decree of divorce
granted by the Supreme Court of Nova Scotia and said in spite of notice the petitioner
did not contest the same and by not raising any objection she is deemed to have
accepted jurisdiction of the foreign Court in trying the petition there and, thus, making
the decree nisi absolute by the foreign Court. He also said that by accepting the
maintenance she again in effect in law accepted the foreign judgment and, thus, was
estopped from filing the present petition. It was then stated that the earlier suit in the
foreign Court was between the same parties and subject-matter was also the same, i.e.,
grant of decree of divorce and alimony which is the very same subject in the present
petition, and thus, present petition was barred under Section 11 of the Code of Civil
Procedure and further that the judgment of the foreign Court was conclusive under
Section 13 of the Code. All these averments were denied by the petitioner. She said
principles of res judicata did not apply nor the decree passed by the foreign Court could
be conclusive under Section 13 of the Code. She said Section 13 of the Code clearly

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showed that the judgment of the foreign Court was a nullity and the marriage subsisted
between the parties. She said decree had been obtained by fraud and was in breach of
the Act as in force in India. She raised various other objections as well but all these
were brushed aside by the trial Judge who, as noted above, dismissed the petition for
divorce and also dismissed the petition for grant of maintenance pendente lite on the
ground that the petitioner was already in receipt of the maintenance from the first
respondent and that "it would not be desirable to burden her (him ?) with any costs in
these proceedings." Both the petitions, i.e., for divorce and maintenance, were held to
be not maintainable and dismissed.
4. The fact remains that the petitioner never contested the proceedings in the Court at
Nova Scotia, but that would not mean that she conceded the jurisdiction of that Court.
The petitioner had no means to contest the proceedings there and the decree of divorce
was passed as she was unable to appear and contest the proceedings. It was the
prohibitive cost of going the Canada and other circumstances which disabled the
petitioner in contesting the proceedings filed by the husband. Her handicap was her
meagre resources of which the husband took full advantage. In a case like this it can
safely be said that rules of natural justice have been violated to the prejudice of the
petitioner. The only ground on which the husband sought divorce was that "there has
been a permanent breakdown of the marriage in that your petitioner and the respondent
have lived separate and apart since on or about the 21st day of February, 1972." This is
not a ground of divorce recognised under the Act. A divorce could not be granted in
India on such a claim made by the husband against the wife. The learned trial Judge did
not properly examine this question and said that though it was no ground of divorce
existing in the Act or even a comparable ground was not available in the Act, but that
that would be of no consequence because of the incorporation of the provisions of
Section 13B and in view of the latest trend of pronouncements by the higher Courts
granting divorce on the ground of irretrievable breakdown of marriage which was now
being recognised. The trial Court further said that the controversy raised by the
petitioner was of academic nature inasmuch as the marriage between the parties had
already been dissolved by means of a foreign judgment and that in the present
proceedings as well the petitioner was asking for a divorce though on different grounds.
The approach by the trial Court is not correct. A Court cannot legislate and itself add a
new ground of divorce not existing in the statute. Further when the foreign judgment is
a nullity, the parties will continue to be husband and wife unless a decree of divorce is
granted in accordance with law. I also think that the trial Court was wrong in concluding
that since the petitioner accepted maintenance she would be deemed to have accepted
the foreign judgment and would be, thus, estopped from filing any petition for divorce
by herself. I do not think there was any estoppel or any principles of res judicata which
barred the petitioner from filing the petition for divorce. On the question of maintenance
pendente lite and expenses of the proceedings the trial Court did not go into the
question if it was justifiable in law and approached the issue on an untenable ground
that it would not be desirable to burden the husband with costs inasmuch as the
petitioner was getting maintenance.
5. These two appeals from very beginning have been plagued with the attitude of first
respondent as he had not been paying regular maintenance to the petitioner as awarded
by the foreign Court. The appellant filed an application in this Court as well under
Section 24 of the Act which was allowed by order dated 14 January, 1988 whereby this
Court was of the view that a sum of Rs. 4,500/- per month would be sufficient for the
maintenance of the appellant and her two minor daughters. It was pointed out that the
amount of maintenance the appellant was getting from her husband would be deducted.
Thus, the first respondent was asked to pay further sum of Rs. 2,250/ - per month from

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the date of the application which was 1 November, 1986 and he was also directed to
pay Rs. 5,000/- to the appellant towards litigation expenses for the purpose of the
present appeals. Then the husband filed an application for review of this order.
Proceedings went on for the purpose of getting maintenance from the husband in terms
of the order dated 14 January, 1988. Yet another application was filed by the
respondent-husband that the maintenance ordered to be paid to the appellant-wife be
given directly to daughters as the appellant was herself employed and earning. This
application was dismissed on 26 November, 1990 being frivolous. Meanwhile, the
appellant wife filed another application seeking enhancement of the interim
maintenance awarded by this Court. It is unnecessary to detail the proceedings held so
far except to note that the review application filed by the husband was dismissed on 29
October, 1993. Thereafter protracted proceedings all around were held on account of
the requests made by the counsel for the respondent-husband. Ultimately, his counsel
Mr. S. L. Hans filed an application seeking withdrawal from these proceedings. He was
allowed to withdraw by order dated 15 July, 1994 and thereafter the proceedings have
been held ex parte and arguments addressed by Mr. Manmohan, learned counsel for the
appellant.
6. The questions which arise for determination in these two appeals are: (1) whether in
view of the decree of divorce passed by the Supreme Court of Nova Scotia in Canada
could it be said that the petition filed by the wife was barred by principles of estoppel
and res judicator ;(2) could a decree for divorce be granted under the Act in this appeal
as prayed by the wife; (3) whether the learned trial Judge was right in dismissing the
petition of wife for grant of maintenance even though her petition for divorce was held
to be not maintainable; and (4) whether this Court has jurisdiction to pass an order of
maintenance and the quantum to be fixed.
7. I may note that during these proceedings one of the two daughters of the appellant
wife died in accident and now she has only one daughter surviving. That, I must say, is
quite a tragic circumstance for the wife.
8. In support of his submission that the decree of divorce passed by the Supreme Court
of Nova Scotia was not valid, Mr. Manmohan referred to various decisions of the
Supreme Court reference to which may now briefly be made.
9 . In Smt. Satya v. Teja Singh, MANU/SC/0212/1974 : 1975CriL J52 , the Court
considered the question: Are Indian Courts bound to give recognition to divorce decrees
granted by foreign Courts? The Court observed (para 49, at p. 117 of AIR):
"The judgment of the Nevada Court (foreign judgment) was rendered in a civil
proceeding and Therefore its validity in India must be determined on the terms
of Sec. 13 (Code of Civil Procedure). It is beside the point that the validity of
that judgment is questioned in a criminal Court and not in a civil Court. If the
judgment falls under any of the clauses (a) to (e)of Section 13 it will cease to
be conclusive as to any matter thereby adjudicated upon and will be open to
col- lateral attack on the grounds mentioned in Section 13."
Thus, the Court held, that "a foreign decree of divorce obtained by the husband from
the Nevada State Court in U.S.A. in absentees of the wife without her submitting to its
jurisdiction will not be valid and binding on a criminal Court in proceedings for
maintenance under Section 488, Criminal P. C. when it is found from the facts on record
that the decree of divorce was obtained by fraud or by making a false representation as
to a jurisdictional fact viz. that the husband was a bona fide resident and was domiciled

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in Nevada. The decree being open to collateral attack on the jurisdictional fact that
recital in the judgment of the Nevada Court that the respondent was a bona fide
resident of and was domiciled in Nevada is not conclusive and can be contradicted by
satisfactory proof."
Section 13 of the Code is as under:--
"13. A foreign judgment shall be conclusive as to any matter thereby directly
adjudicated upon between the same parties or between parties under whom
they or any of them claim litigating under the same title except-
(a) where it has not been pronounced by a Court of competent
jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on
an incorrect law of international law or a refusal, to recognize the law
of India in cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are
opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in
India."
Various clauses of this section were subject-matter of interpretation in Y. Narasimhrao
v. Y. Venkatalakshmi, MANU/SC/0603/1991 : [1991]2SCR821 , which relied upon the
decision of the Supreme Court in Smt. Satya's case, MANU/SC/0212/1974 :
1975CriL J52 . The Court referred to these clauses in the sphere of matrimonial law so
as to bring the same in conformity with the public policy, justice, quality and good
conscience so as to protect the sanctity of the institution of marriage and the unity of
family which are important for any social society. After examining the various clauses,
the Court concluded as under:--
"....the following rule can be deduced for recognising a foreign matrimonial
judgment in this country. The jurisdiction assumed by the foreign Court as well
as the grounds on which the relief is granted must be in accordance with the
matrimonial law under which the parties married. The exceptions to this rule
may be as follows: (i) where the matrimonial action is filed in the forum where
the respondent is domiciled or habitually and permanently resides and the relief
is granted on a ground available in the matrimonial law under which the parties
are married; (ii) where the respondent voluntarily and effectively submits to the
jurisdiction of the forum as discussed above and contests the claim which is
based on a ground available under the matrimonial law under which the parties
are married; (iii) where the respondent consents to the grant of the relief
although the jurisdiction of the forum is not in accordance with the provisions
of the matrimonial law of the parties."
1 0 . In Surinder Kaur Sandhu v. Harbax Singh Sandhu, MANU/SC/0184/1984 :
[1984]3SCR422 , the Court held as under (at p. 1226 of AIR):--
"The modern theory of Conflict of Laws recognises and, in any event, prefers

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 the jurisdiction of the State which has the most intimate contact with the issues
arising in the case. The jurisdiction is not attracted by the operation or creation
of fortuitous circumstances such as the circumstances as to where the child,
whose custody is in issue, is brought or for the time being lodged. To allow the
assumption of jurisdiction by another State in such circumstances will only
result encouraging forum-shopping. Ordinarily, jurisdiction must follow upon
functional lines. That is to say, for example, that in matters relating to
matrimony and custody, the law of that place must govern which has the
closest concern with the well-being of the spouses and the welfare of the
offspring's of marriage."
11. After considering the facts of the case and the law as propounded by the Supreme
Court, I am of the view that the Supreme Court at Nova Scotia was not the Court of
competent jurisdiction as under the Act the Supreme Court at Nova Scotia could not be
a Court of competent jurisdiction. The silence of the wife could not confer jurisdiction
on that Court. Silence here is not because of her own volition but because of the
constraints which she could not overcome to contest the proceedings there. Mr.
Manmohan was quite emphatic in his submission that the respondent husband never
domiciled nor habitually or permanently resided within the jurisdiction of the Supreme
Court of Nova Scotia. It is also clear that the ground on which the decree of divorce had
been granted by the foreign Court is not a ground on which such a decree could be
granted under the Act. Since the petitioner wife was not in a position to contest the
proceedings in a foreign Court as she had no means to go there and the foreign Court
did not see to it whether the wife was possessed of sufficient funds and her
documentation to visit Canada complete, the rules of natural justice stood violated. It is
a matter of common knowledge that mere buying an air ticket is not enough to visit
Canada. There are various other formalities to be completed. I am of the firm view that
the foreign judgment on which the husband relied has no legal validity in this country.
The impugned order of the Additional District Judge holding that the petition of divorce
filed by the wife was not maintainable has to be set aside. This matter, Therefore, may
have to be remanded back to be tried in accordance with law. But I do not think, in the
circumstances of the case and the law applicable, it would be necessary to do that.
1 2 . In V. Bhagat v. Mrs. D. Bhagat, MANU/SC/0155/1994 : AIR1994SC710 , the
Supreme Court held as under (at pp. 720-21 of AIR):--
"Merely because there are allegations and counter-allegations, a decree of
divorce cannot follow. Nor is mere delay in disposal of the divorce proceedings
by itself a ground. There must be really some extraordinary features to warrant
grant of divorce on the basis of pleadings (and other admitted material) without
a full trial. Irretrievable breakdown of the marriage is not a ground by itself.
But while scrutinizing the evidence on record to determine whether the
ground(s) alleged is/are made out in determining the relief to be granted, the
said circumstance can certainly be borne in mind. The unusual step as the one
taken by us herein can be resorted to only to clear up an insoluble mess, when
the Court finds it in the interest of both the parties."
13. In Romesh Chander v. Smt. Savitri MANU/SC/0162/1995 : [1995]1SCR212 :AIR
1955 SCW 647, the Supreme Court referred to its earlier decision in Chanderkala Trivedi
(Smt.) v. Dr. S.P. Trivedi (199.1) 4 SCC 232, wherein it was held that if a marriage was
dead and there was no chance of its being retrieved, it was better to bring it to an end.
Then the Court observed AIR 1955 SCW 647 -

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 "In this case, the marriage is dead both emotionally and practically.
Continuance of marital alliance for name-sake is for prolonging the agony and
affliction. It cannot be disputed that the husband has not been dutiful and
conscious of his responsibilities either towards his wife or his son. He did not
contribute anything towards upbringing of the child. Yet the marriage being
dead, the continuance of it would be cruelty, specially when the child born out
of the wedlock of the appellant and the respondent as far back as in 1968
having now grown and being in service.. .....
Considering the facts and circumstances of the case, we, in exercise of Article
142 of the Constitution of India, direct that the marriage between the appellant
and the respondent shall stand dissolved. ...."
14. In the present case the parties have not been living as husband and wife since over
23 years. Respondent husband has already married and has three children. The wife
could not join husband for no fault of her and, as the record shows, the husband never
wanted her to join him in Canada and left her in lurch in this country to fend for herself
with her two minor daughters. His very conduct shows great deal of cruelty towards
wife. He has deserted her. First he said he would send her the ticket to come to Canada
to join him and then he told her within three months thereafter that he was seeking
divorce from her. As I have held that decree of divorce granted by foreign Court is
nullity the consequence would be that the husband is living in adultery with the second
respondent. It would be harsh on the second respondent to be so held, but then that is
the position in law. All the grounds for divorce alleged by the wife stand proved on
record. I, Therefore, do not think that I should remand the matter back to the trial Court
for him to go into the formality of holding proceedings and then pass a decree for
divorce. The appeal is in continuation of the proceedings from the trial Court and
following the law laid down by the Supreme Court in Romesh Chander v. Smt. Savitri
MANU/SC/0162/1995 : [1995]1SCR212 :AIR 1995 SCW 647. I would allow the petition
for divorce filed by the wife on the grounds as are available in law which the appellant
wife has alleged and stand proved. I would, Therefore, allow this appeal and at the
same time would allow the petition and will grant a decree of divorce in favor of the
petitioner wife and against the respondent husband.
15. F.A.O. No. 151/86 is directed against the order of the learned Additional District
Judge dismissing the application of the petitioner wife for grant of maintenance. It has
been held that since the petition for divorce itself was not maintainable, the application
for maintenance would, Therefore, not lie. As noted above, during pendency of these
appeals an application (CM. No. 4075/86) was filed by the appellant under Section 24
of the Act. This Court by order dated 14 January, 1988 held that the appellant be paid
Rs. 4,500/- per month as her maintenance and that of her minor daughter's including
their education. Since the appellant wife was getting Rs. 1,250/- per month as salary
and was entitled to Rs. 1,000/- per month as maintenance granted by the foreign Court,
it was directed that the respondent husband would pay a further sum of Rs. 2,250/-
from the date of the application which was 1 November, 1986. He was further directed
to pay a sum of Rs. 5,000/- to the appellant towards litigation expenses for the purpose
of present appeals. This order of grant of maintenance was not obeyed by the husband
in letter and spirit and, as noted above, rather an application was filed for review of this
order which was dismissed in default on 22 May, 1992. This was, however, restored by
order dated 21 May, 1993 and again dismissed in default on 29 October, 1993. The
appellant filed another application (CM. No. 795/93) for enhancement of interim
maintenance amount. When this application for enhancement of maintenance had been
pending, respondent," however, withdrew from these proceedings. It was pointed out

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by Mr. Manmohan, learned counsel for the appellant, which was recorded on 18 March,
1994, that since May, 1993 the husband had not paid any maintenance to the appellant.
There was no dispute that maintenance was in arrears. A direction was issued that
maintenance be paid on or before the next date of hearing. Since Mr. S. L. Hans,
learned counsel for the respondent had expressed desire to withdraw from these
proceedings he was directed to file a proper application as to why he sought withdrawal
from the case. He filed application (C.M. No. 2609/94) which was allowed by order
dated 15 July, 1994. Thereafter, arguments have been addressed by Mr. Manmohan on
the application for grant of maintenance as well.
16. Under the Section 25 of the Act, the Court has jurisdiction, at the time of passing
any decree or any time subsequent thereto on application made to it for the purpose, to
order payment of maintenance to the applicant. This maintenance would either be a
gross sum or even monthly or periodical sum for a term not exceeding the life of the
applicant. The amount of maintenance has to be fixed having regards to the
respondent's own income and other property, if any, the income and other property of
the applicant, the conduct of the parties and other circumstances of the case, as it might
seem to the Court to be just. On the request of Mr. Manmohan the application (C.M.
795/93) filed under Section 24 of the Act is taken as one under Section 25 of the Act
and since proceedings are complete in this application I proceed to decide the same in
terms of the provisions of Section 25 of the Act as well as the Hindu Adoptions and
Maintenance Act, 1956.
1 7 . In this application (C.M. No. 795/93) filed on 11 February, 1993 the appellant
claimed maintenance at the rate of Rupees 10,000/- per month. Appellant said the
respondent husband was a successful medical practitioner in the United States and was
earning over US dollars 2,00,000 per annum (over US dollars 16,000 per month). To
this the respondent husband replied by merely saying that "it is categorically denied
that respondent is earning over US dollars 2,00,000 per annum as alleged." Nothing
further is said as to how much the respondent is in fact earning. When he makes such
an evasive denial it could mean as well that he is earning more than that. Mr.
Manmohan submitted that the petitioner has grown up daughter who is of marriageable
age and expenses are required for this purpose. He wants a lump sum amount of US
dollars 2,00,000 for the appellant and her marriageable daughter towards permanent
alimony/ maintenance and also to meet the cost of the marriage of the daughter. It was
also submitted that respondent No. 2, whom the first respondent claims to have married
after getting divorce from the Supreme Court of Nova Scotia, is also a practicing doctor
and she does not need any amount of maintenance from the first respondent and even
after paying US dollars 2,00,000 to the appellant and her daughter both the respondents
with their three children would still be very well off with his earnings. Respondent
husband has not cared to give any particulars of his property or of his income. Under
these circumstances I have to accept what appellant says. Appellant further states that
she is drawing a salary of Rs.3,100/- and out of which a sum of Rs.800/- is deducted
for recovery towards loan which was advanced to her. the salary which she gets in hand
is Rs.2,100/- per month after deduction of tax. She said she is unable to support herself
and is living with her aged parents. Then she further says that she is maintaining her
daughter who is working in Delhi and gives to her daughter a total monthly allowance
of Rs. 2,000/- as her daughter is staying in a rented accommodation and does not earn
enough to maintain herself.
18. I may then refer to the definition of maintenance as given in the Hindu Adoptions
and Maintenance Act, 1956, as that would be quite helpful in determining the amount of
maintenance to be paid to the appellant. Under clause (b) of Section 3 of that Act,

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"maintenance" includes -- (i) in all cases, provision for good, clothing, residence,
education and medical attendance and treatment; (ii) in the case of an unmarried
daughter also the reasonable expenses of and incident to her marriage. As to what
should be the amount of maintenance, Section 23 may be referred to:
"23. Amount of maintenance. -- (1) It shall be in the discretion of the Court to
determine whether any, and if so what, maintenance shall be awarded under
the provisions of this Act, and in doing so, the Court shall have due regard to
the consideration set out in subsection (2) or sub-section (3), as the case may
be, so far as they are applicable.
(2) In determining the amount of maintenance, if any, to be awarded to a wife,
children or aged or infirm parents under this Act, regard shall be had to -
(a) the position and land status of the parties;
(b) the reasonable wants of the claimant;
(c) if the claimant is living separately, whether the claimant is justified
in doing so;
(d) the value of the claimant's property and any income derived from
such property, or from the claimant's own earning or from any other
source;
(e) the number of persons entitled to maintenance under this Act.
(3) In determining the amount of maintenance, if any, to be awarded to a
dependant under this Act, regard shall be had to -
(a) the net value of the estate of the deceased after providing for the
payment of his debts;
(b) the provision, if any, made under a will of the deceased in respect,
of the dependent;
(c) the degree of relationship between the two;
(d) the reasonable wants of the dependent;
(e) the past relations between the dependent and the deceased;
(f) the value of the property of the dependent and any income derived
from such property, or from his or her earnings or from any other
course;
(g) the number of dependents entitled to maintenance under this Act."
19. A conjoint reading of both these provisions (Section 25 of the Hindu Marriage Act
and Section 23 of the Hindu Adoptions and Maintenance Act) would mean that the Court
has to take into consideration the following factors:--
(1) The maintenance can be gross sum or monthly or periodical sum;
(2) The income and assets of both the parties;

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 (3) The conduct of parties;
(4) Other circumstances of the case under the Hindu Marriage Act -- this
expression gives wide discretion to the Court in the matter;
(5) The position and status of the parties;
(6) Reasonable wants of the claimant;
(7) Number of persons entitled to maintenance under the Hindu Adoptions and
maintenance Act;
(8) Reasonable expenses of an incident to marriage of unmarried daughter;
(9) Reasonable wants of an unmarried daughter being a dependent.
2 0 . In the present case, the conduct of the husband must be looked into. He went
abroad for the purpose of further studies leaving behind the wife and two minor
daughters who were only a year and two old. There he sought divorce from the
Supreme Court of Nova Scotia on a ground contrary to the provisions of the Act in this
country and then got remarried. He had no consideration for the wife and two small
daughter and never bothered to pay any maintenance to them. It was only when the
wife wrote to the Court in Canada that maintenance of Rs. 1,000/- was fixed. That too
was not paid regularly and for years it was not paid at all. He did not tell this Court of
his true income or the assets. He is living presently in the United States. The second
respondent with whom he claimed to have married is also a doctor. It is a matter of
common knowledge that doctors in United States are quite well and effluent people.
During course of present proceedings when the wife moved application for enhancement
of interim maintenance he withdrew from the proceedings as otherwise he would have
to tell the Court his true income and assets. This, it would appear, he never wanted to
tell. Calamity fell on the wife when one of her two daughters died in an accident. Her
second daughter is of marriageable age. The wife has demanded permanent alimony
and expenses of the marriage of her daughter at US dollars two lakhs. Of course, if one
converts this amount into Indian rupees it would appear to be a large figure. But then
considering the status of the husband and his conduct it should not be too great a
figure for him to pay. Wife is also entitled to live in comfort as does the husband. But
then I have also to see the reasonable needs and wants of the wife and the unmarried
daughter.
21. It is always the fair test which the Court has to apply keeping in view the provisions
of Section 25 of the Act and those of Section 23 of the Hindu Adoptions and
Maintenance Act, 1956. In Dr. Kulbhushan Kunwar v. Smt. Raj Kumari,
MANU/SC/0349/1970 : [1971]2SCR672 , the Supreme Court considered the question of
quantum of maintenance to be awarded to the wife under sub-section (2) of Section 23
of the Hindu Adoptions and Maintenance Act. The Court approved the observations of
the Privy Council in Mt. Ekradeshwari v. Homeshwar, AIR 1929 PC 128. According to the
opinion of the Privy Council, the maintenance depended -
"upon a gathering together of all the facts of the situation, the amount of free
estate, the past life of the married parties and the families, a survey of the
conditions and necessities and rights of the members, on a reasonable view of
change of circumstances possibly required in the future, regard being, of
course, had to the scale and mode of living, and to the age, habits, wants and
class of life of the parties."

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22. The Court can also take judicial notice of the cost of living and also the inflation.
The maintenance can be fixed with reference to the cost of living as of today and future
rise in the cost of living on approximate basis. It is not that the wife has to come to the
Court again and again with increase in cost of living. The maintenance can be linked to
the inflation. Of course, if there is some substantial change in application could be filed
for modification of the maintenance awarded. Considering all the relevant circumstances
like the status of the parties, their financial condition, their means, their way of life,
their future necessities, I think the claim of maintenance by the appellant for herself and
daughter at the rate of Rs. 10,000/- per month is fully justified. I will award this
maintenance first as an interim maintenance under Section 24 of the Act as from the
date of the application, which is 1 November, 1986, and then convert the same into
permanent alimony under Section 25 of the Act. This maintenance shall stand enhanced
at the rate of 12% per annum taking into account the inflation element which is double
figure these days. If, however, the first respondent pays US dollars 33,000 to the
appellant in lumpsum towards permanent alimony her claim for increase in monthly
maintenance will stand waived.
2 3 . Then the question of cost of the marriage of the daughter would arise. Again,
considering the status of the parties and the income of the first respondent husband a
marriage expense of Rs. 10 lakhs would be required which in terms of US dollars would
again be around 33,000. This amount the first respondent shall pay by means of tax
fixed deposit receipt in the name of the daughter which she shall be able to encash at
the time of her marriage. This amount the first respondent shall pay within two months
of this order and lump sum amount of permanent alimony also within this period,
otherwise, as noted above, arrears of maintenance at the rate of Rs. 10,000/- per month
as from 1 November, 1986 shall be paid by him to the appellant again within two
months and then every month on or before the tenth of each succeeding English
calendar month. Both the appeals are accordingly allowed.
24. Appeals allowed.
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