KAITHAKULANGARA KUNHIKANNAN Vs. NELLATHAM VEETTIL MALU

JUDGEMENT

(1.) The appeal arises out of a petition by a Hindu husband under S.10 of the Hindu Marriage Act against his Hindu wife the first respondent in the petition for judicial separation. The ground of the petition is that on the 21st of July, 1963 the first respondent committed adultery with the second respondent impleaded in the petition. Judicial separation was granted by the learned Judge holding that the first respondent has been guilty of adultery with the second respondent on 21st of July, 1963. Along with the order allowing judicial separation the court below directed the petitioner to pay maintenance to the first respondent at the rate of Rs. 25/- per mensem under S.25 of the Hindu Marriage Act. The learned Judge decreed maintenance to the first respondent on the following reasoning:

(2.) The appeal is by the petitioner against the order of the court below allowing maintenance to the respondent. The respondent has filed a memorandum of cross objection for enhancement of the amount decreed by the court below. The order granting judicial separation has become final as there is no appeal by the respondent.

(3.) The plea of the appellant is that since judicial separation under S.10 of the Hindu Marriage Act has been granted on the ground of adultery the res. pendent is not entitled to maintenance under S.25 of the Hindu Marriage Act. An extreme position was taken that in such cases a court has no jurisdiction under S.25 of the Hindu Marriage Act to decree maintenance. Apart from S.25(3) of the Hindu Marriage Act learned counsel for the appellant relied on the decision in Rajagopalan v. Rajamma ( 1966 KLT 891 ), to support his contention.