G.K. Mitter JUDGMENT
G.K. Mitter, J.
1. 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.
2. Counsel for the appellant did not contest the right of the respondents 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 Section 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 Section 23 runs as follows :-
(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 considerations 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) the position and 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 earnings or from any other source;
(e) the number of persons entitled to maintenance under this Act.
. . .
As it was contended on behalf of the appellant that practically all the provisions of the sub-clauses of Sub-section (2) were disregarded by the High Court, it is necessary to state a few facts about the married life of the appellant, his income out of which maintenance is to be directed, the pecuniary conditions of himself and of his wife and whether the wife has any other income or property which had to be taken into consideration.
3. The marriage of the appellant with the respondent in the first appeal took place in May 1945 at Gujranwala now in Pakistan. The father-in-law of the appellant who was examined as a witness in the maintenance suit filed by the respondent gave evidence to the effect that he had worked as an agent of the Standard Vacuum Oil Company with agencies at Gujranwala and neighbouring districts and that his annual income at the date of the marriage of the respondent was about Rs. 40,000/- out of which he had to pay Rs. 13,000/- by way of income-tax. Further, after the partition of India he came to Dehra Dun and took up his abode at Premnagar Refugee Camp but could not engage himself actively in business on account of illness and old age but had become a partner with others in a business of ice and rice mill in which he had a Rs. 0-2-6 share; he had never seen the accounts of the business and was content to accept whatever was given to him by his partners which varied between Rs. 50/- and Rs. 200/- per month. He had to leave all his property in Pakistan and had not received any compensation in lieu thereof at the date when he was examined in court in March 1956.
4. There is some dispute about the period during which the parties in the first appeal had lived together as man and wife. According to the husband the period had come to an end in March 1946 while according to the wife it had lasted up to December 1946. Admittedly, a daughter, the respondent in the secon........