ORDER S.K. Dhaon, J.
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 24th August, 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/- 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/- 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 24th August, 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 of the passing of the decree under S. 13 a time-lag between the passing of the decree and the passing of an order for maintenance allowance is contemplated by the Legislature. Such a time lag may be notional. A decree of divorce under S. 13 must precede an order of maintenance allowance. Therefore, the condition precedent for the passing of an order under S. 25 for maintenance allowance is the existence of a decree of divorce.
8. In Patel Dharamshi Premji v. Bai Sakar Kanji, AIR 1968 Gujarat 150 a Division Bench presided by Hon'ble P.N. Bhagwati, J. (as he then was) has taken the view that under S. 25 permanent alimony can be granted even to an erring wife who is guilty of a matrimonial offence. It is also held that the relief of permanent alimony being an incidental relief an application by the wife or the husband, who is party to the main proceedings, may be made in the main proceedings either before or at the time of passing the decree granting substantive relief of divorce or at any time subsequent to the passing of such a decree. The relief of permanent alimony being incidental to the granting of substantive relief, it would be more consonant with reason that an application for such incidental relief should be maintainable after the passing of the decree granting substantive relief. We respectfully agree with the said decision. Therefore, we find no substance in the submission made on behalf of the appellant that the Second Civil Judge passed a consent decree and the Family Court could not go behind that decree.
9. The Hindu Law as well as the common law cast a duty on the husband to maintain the wife. In India, long before 1955, when the Act was brought into force, such a duty of the husband was given statutory recognition in the Indian Divorce Act, the Parsi Marriage and Divorce Act and the Special Marriage Act. "The amount of maintenance, whether it is fixed by adecree of agreement is liable to be increased or diminished, whenever there is a change of circumstances as would justify a change in the rate..... It may be asked why it is that the rate of maintenance, though fixed by agreement, may be varied by the Court in a suit brought for that purpose. The answer is that the right to maintenance does not rest on contract, but on the provisions of the Hindu Law which expressly govern the rights and duties of different members of a Hindu family" -- Mulla Hindu Law Thirteenth Edition Para 568. Thus, the Hindu Law recognised that the right of maintenance was a substantive and continuing right and the quantum of maintenance was variable from time to time.
10. Neither the provisions of S. 11 of the Code of Civil Procedure nor the principles of res judicata will bar a suit for maintenance on an enhanced rate for a different period under altered circumstances even though on an earlier occasion a maintenance decree had been passed and a certain rate of maintenance had been fixed thereunder. The reason being that such a decree as to the rate of maintenance is not final.
11. The case of Hirabai Bharucha v. Pirojshah Bharucha, AIR 1945 Bombay 537, stems from proceedings under S. 40 of the Parsi Marriage and Divorce Act, 1936. Under this provision, a Court is authorised to award permanent alimony to a wife either at the time of the passing of any decree under that Act or subsequently thereto. The wife is granted a decree of divorce. After the decree is passed, the husband and wife arrive at certain consent terms. One of the terms of the consent order is :
"This Court doth declare that the defendant hereby agrees not to claim any alimony now or at any time in future.".
The wife applies under S. 40 for alimony. It is held that on grounds of public policy the wife cannot enter into a contract that she will not claim any alimony in future. The contract is void and the Court will take notice of that and ignore that part of the order although it was made by consent. Reliance is placed upon a remark by Lord Atkin :
"The wife's right to future maintenance is a matter of public concern which she cannot barter away."
Accepting this proposition, the learned Judge takes the view that the wife cannot barter away her right to future maintenance and enter into a contract to that effect and such a contract will be a void contract in the eye of law.
12. Let us now read Section 25. Subsection (1), inter alia, provides that any Court exercising jurisdiction under the Act may, at the time of passing any decree or at any time subsequent thereto, 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, if any, the income and the other property of the applicant, the conduct of the parties and other circumstances of the case, which may seem to the Court to just. Sub-section (2) may be extracted :--
(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.".
Admittedly, the Second Civil Judge exercised powers under the Act while passing a decree of divorce under S. 13 and, as already indicated, he passed an order fixing a certain sum as the monthly maintenance allowance for the wife. The Court did not pass any order that the wife will not claim an enhancement of the maintenance allowance in future Assuming a wife gives up her right to claim a higher rate of maintenance allowance in future her consent, in our opinion, will not bring into existence a valid contract. Such an agreement will not only defeat the provisions of subsection (2) of S. 25 but will also frustrate the purpose of giving maintenance allowance. Judicial notice can be taken of rising prices with the result that the cost of bare existence is regularly rising, rather mercurially. In principle, it makes no difference between an agreement by a wife not to claim any alimony at all and an agreement not to claim any enhancement of the rate of maintenance allowance, whatever be the change in the circumstances.
13. We have gone through the order of the Second Civil Judge more than once and we do not find that the respondent to this appeal (the wife) ever intended to give up her right as contained in sub-section (2) of S. 25. The Court too either expressly or by necessary implication did not intend to convey the idea that the order passed by the fixing Rs. 200/- per month as maintenance allowance was not subject to a modification in future. The Court had to fix some amount as maintenance allowance as the respondent claimed it. The amount was fixed not only on the sole ground that the wife had demanded the said amount but also on the consideration, as highlighted by the Family Court, that on the relevant date the appellant (the husband) had a monthly income of Rs. 400/-and he had no other liability except to maintain the respondent.
14. The appellant had claimed a decree of divorce and had secured it. The wife had claimed maintenance allowance and she had to be given some allowance. She volunteered to accept Rs. 200/- per month and the appellant agreed. We have gone through the objection filed by the appellant before the Family Court and we do not find any whisper therein as to how and in what manner the appellant altered his position to his detriment by acting upon the alleged representation of the respondent that she would accept Rs. 300/- per month as maintenance allowance. Thus, on fact, principle and authorities we are satisfied that the doctrine of estoppel cannot be invoked against the respondent to defeat her claim to a higher rate of maintenance allowance.
15. On merits, the Family Court increased the allowance from Rs. 200/- per month to Rs. 400/ - per month keeping in view the fact that the income of the appellant had increased from Rs. 400/- per month to Rs. 2,925/- per month. That is why the learned counsel for the appellant very rightly did not make any submission on the quantum fixed by the Court.
This appeal fails. It is dismissed summarily.
16. Appeal dismissed.