LexKULBHUSHAN KUMAR versus RAJ KUMARI & ANR.
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672 KUI,BHUSHAN KUMAR v. RAJ KUMAR! & ANR. Oc,tnber ?.0, 1970 [G. K. MITTER AND A. N. RAY, JJ.J !findu Adoptions and Maintenance Act (78 of 1956), s. 23(2)- Amounts received by wife monthly from faiher-lf could be taken into account in determining maintenance-Husband's 'free income', how deter- mined-Amount of maintenance and date from which payable. The appellant and the respondent were married in May 1945. Some- time after the marriage the husband did not want the wife to live with him; and there was complete estrangement between them. A daughter was born to them in-August 1946. In 1951, the respondent sent a registered letter claiming maintenance, for herself and the daughter, and in 1954, she filed the suit for maintenance. The High Court in appeal, fixed the maintenance payable to the res- pondent, under s. 23 (2) of the· Hindu Adoptions and Maintenance Act, 1956; at Rs. 250 subject to a limit. of 25% per mensem of the income as determined by the income-tax authorities, and Rs. 150 as the maintenance of the daughter. The High Court, in doing so, took into account the facts that the appellant was a Reader in Medicine receiving a sala\'y of about Rs. 700 and more than Rs. 250 per mensem by way of ,private practice. The date of the institution of the suit was fixed by the High Couit ·as terminus a quo for the payment of the maintenance to the res- pondent. In appeal to this Court on the question of maintenance payable .to the wife. HELD : (!) Even if the wife received some amounts from her father tegularly it was only a boµnty and not her income. Therofore it could A B c D E not be taken into account under s. 23(2) (d) of the Act in determining F the amount of maintenance, [678 A-BJ (2) There- was no· evidence of her inheriting any property of her father on his death. ~678 CJ (3) The amount payable by way of maintenance depends on the facts of each ·case and the Judicial Committee, in Mt. Ekradesltn·ari ·v. Homeshwar, did not lay down any principle relating to the proportion of the husband's 'free income' which would· be payable as maintenance to the wife. [679 F-G] In the circumstances of this case, no exception could be taken to the amount fixed by the High Court as well M the date from which the main- tenance would be claimable. In determining the limit at 25% of the -free income' of the appellant, amounts payable towards income tax, com- pulsory provident fund, and expenses for maintaining the car for profes- sional purposes as allowed by the income taic authorities, should be allowed as deductions from the husband'' total income. [ti80 A-C, F-GJ Mt. Ekradeshwari v. Homeshwar, A.I.R. 1929 P.C. 128 applied. G H KULBHUSHAN V. RAJ KUMAR! (Mitter, J.) 673 A C1vn. APPELLATE JURISDICTION: Civil Appeals Nos. 2564 and 2589 of 1966. Appeals from the judgments and decrees dated March 10. 1965 of the Allahabad High Court, Lucknow Bench in First Civil Appeals Nos. 5 and (i of 1958, respectively. B G. N. Dikshlt and B. Datta, for the appellaint (in both the c D E F G H appeals). C. B. Agarwa/a, Uma Mehta, S. K. Bagga and S. Bagga, for the re;pondent (in both the appeals). The Judgment of the Court was delivered by Mitter, J. These two appeals are from two judgments and decrees of the High Court of Allahabad granting maintenance to the wife and daughter of the common appellant in both the appeals. Counsel for the appeilant did not contest the right of th" res- pondents to claim maintenance. His argument was directed only against the quantum fixed in both the cases on the ground that the principles laid down in s. 23 ( 2) of the Hindu Adoptions and Maintenance Act, 1956 had not been followed by the High Court. The Act had come into force before the date of the trial court's judgment on the 1st June 1957 and it is the common case of the parties that the Act governs the rights of the parties herein. The relevant portion of s. 23 runs as follows :- " (l ) It shall be in the discretion of the court to determine whether any, and if so, what, maintenance shali be awarded under the provisions of this Act, and in doing so the court shall have due regard to the con- siderations set out in sub-section (2) or sub-section ( 3), as the case may be, as 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) thP. position
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