KISTAPPA NAICKER Vs. PARVATI AMMAL

JUDGEMENT

(1.) THIS city civil Court appeal arises out of a suit for maintenance by the respondent before me against her husband, the appellant before me, The Judge below has decreed the suit for Rs. 30 per mensem as for the future and for Rs. 240 for arrears of maintenance.

(2.) MR . Ramanathan, for the appellant, urges that the plaintiff is not entitled to separate maintenance because she chose to keep herself away from the husband's roof; but anyhow there is the fact that the appellant is a man who has taken a second wife. That fact by itself is sufficient ground for award of separate maintenance to the wife under Act XIX [19] of 1946 (Central) in the absence of any unchaste or improper conduct on her part. So much has been held in recent decisions of this Court of which I need only refer to my judgment delivered just today in S. A. No. 556 of 1947. This point of the learned counsel, therefore, fails.

(3.) LASTLY , it is said for the appellant that the award of Rs. 80 per mensem is unfair because, as the learned Judge below himself observes, the defendant is a man earning only Rs. 36 per month. It is true that the Judge further observes that whenever the defendant did more work he would earn about Rs. 90 to Rs. 100 per mensem. The Court can, after all, go by the permanent earnings which the husband normally makes and not by any exceptional earnings which occasionally he may make if he chooses to do more work, than ordinarily he does. I am not satisfied that the award of Rs. 30 per mensem to the respondent is at all proper or fair in the circumstances of this case. The appellant has, besides the second wife, two children already. It is true that the award of Rs. 90 covers the needs of maintenance not only of the plaintiff but of her two children as well. Even so, I am inclined to think that an award of Rs. 16 per mensem is all that the plaintiff ought to get. The parties will be at liberty to apply for enhancement or reduction according to the circumstances in future. I accordingly vary the decree of the Court below by substituting Rs. 15 per mensem for Rs. 30 per mensem in the decree of the Court below and by substituting Rs. 100 for Rs. 240 for arrears of maintenance. As regards the arrears, I award Rs. 100 a round figure not seriously objected to by either side in place of the Rs. 240 awarded by the Court below. Each party will bear its own coats in this appeal.