On grounds of public policy, the wife cannot enter into a contract that she will not claim any alimony in future: High Court of Himachal Pradesh
Such contract is void and the Court will take notice of that and ignore such an agreement even though it was made by consent. 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. This remarkable judgment was passed by the High Court of Himachal Pradesh in the matter of BEASA DEVI V SHIV DAYAL [CMP NO. 8958 OF 2019 IN FAO (HMA) NO. 50 OF 2001] by Honourable Justice Tarlok Singh Chauhan. This application was filed under Section 25 (2) of the Hindu Marriage Act, 1955 for the enhancement of the permanent alimony and seeking clarifications in terms of the liberty reserved vide judgment dated 19.11.2001. The facts of the case are such that the parties to this application got separated from each other and their marriage was dissolved by a decree of divorce granted by this Court vide judgment which was later upheld and application under Section 25 of the Act instituted by the appellant for permanent alimony was allowed by this Court.  As per the compromise, the respondent agreed and undertook to deposit a further sum of Rs.1,50,000/- in addition to already deposited by him as per a previous. The Court held that the applicant is entitled to interest on the total sum till her life time or till her remarriage. In addition, thereto, respondent also agreed to pay a sum of enhanced maintenance to the applicant. The Court while disposing of the appeal observed that in case of any difficulty liberty was reserved to the parties to approach the Court for seeking further clarifications. Hence the instant application was filed under Section 25 (2) for the enhancement of the permanent alimony. The High Court in this case faced two issues, whether the jurisdiction of the court is ousted by agreement and whether the right to future maintenance is transferable and if not, is the settlement void as far as the terms of maintenance are concerned. The Court observed that by agreement, jurisdiction of the court which has been created by a statute cannot be taken away. Section 25 as a whole confers the jurisdiction on the competent court to provide permanent alimony and maintenance at the time of passing any decree or at any time subsequent thereto.  The Court further observed that even if, a fixed maintenance allowance is agreed upon towards a decree of divorce, the quantum if accorded and recorded by the court, has to be understood for purpose of maintenance within the ambit of Section 25(1) of the Hindu Marriage Act and with the change in the circumstances the same shall be liable to be re-assessed under Section 25(2) of the Hindu Marriage Act. For the second issue, the HC stated that, “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. 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.” Also, considering the contractual aspect assuming a wife gives up her right to claim a higher rate of maintenance allowance in future her consent will not be regarded as lawful. Also, such an agreement will not only defeat the provisions of subsection (2) of Section 25 but will also frustrate the purpose of giving maintenance allowance. The purpose is to achieve ‘social justice’ in interpreting provisions relating to maintenance, the Court is expected to bridge the gap between law and the society. Provisions relating to maintenance fall in category of legislation which is aimed at empowering the destitute and achieving the social justice, equity and dignity of the individual. In dealing with such cases there is necessity for drift from the ‘adversarial litigation’ to social context adjudication’, which is the need of the hour. HC stated, “In granting permanent alimony no arithmetic formula can be adopted as there cannot be mathematical exactitude. It shall depend upon the status of the parties, their respective social needs and financial capacity of the husband and other obligations. The Court is required to take note of the fact that amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband. At the same time, the amount so fixed cannot be excessive or affect the living condition of the other party.” The Court adverting to the facts of the present case observed that the respondent in the instant case is a retired Shashtri teacher and is currently drawing a pension of about Rs.32,000/-. whereas the applicant has admittedly no independent source of income and is receiving interest of Rs.1240/- per month which is accruing on the amount invested in the bank. The Court thus held “the present application is allowed and the respondent is directed to pay a further sum of Rs. 8000/- per month to the applicant. The concerned Treasury Officer is directed to henceforth deduct a sum of Rs.8000/- per month from the pension of the respondent and remit the same directly to the bank account of the applicant.”
 Hig h C o urt of H.P on 30 04 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLACMP No. 89519 in FAONo. 501Reserved on : 23.04.2021Decided on28.04.2021Smt. Beasa Devi…..Applicant AppellantVersusSh. Shiv Dayal ….Non applicant RespondentCoram:The Hon’ble Mr. Justice Tarlok Singh Chauhan Judge.Whether approved for reporting 1 Yes.For the Applicant Appellant: Mr.. Raman Sethi Advocate.For the Non applicant Respondent:Mr. Devender K. Sharma Advocate._____________________________________________________________________Justice Tarlok Singh Chauhan JudgeThe applicant has filed this application under Section 25(2) of the Hindu Marriage Act 1955for theenhancement of the permanent alimony and seeking furtherdirections clarifications in terms of the liberty reserved videjudgment dated 19.11.2001.2.The brief facts leading to the filing of the presentapplication are that the parties to this application got separated fromeach other and their marriage was dissolved by a decree of divorcegranted by this Court vide judgment dated 08.08.1980 passed in FAONo. 77 which was upheld in LPA No. 80. However the1 Whether reporters of the local papers may be allowed to see the judgment Yes. Hig h C o urt of H.P on 30 04 HCHP 2application under Section 25 of the Act instituted by theapplicant appellant for permanent alimony in LPA No. 80 wasallowed by this Court vide judgment dated 29.08.1980 on thefollowing terms: “(i). The respondent shall pay maintenance of Rs.300 permensem to the appellant for the period 01.07.1980 to28.02.1982. the maintenance pertaining to a particular monthshall be payable by the 10th of the succeeding month.(ii) The respondent shall deposit Rs.36 000 in the Court ofthe District Judge Mandi on or before 22.08.1982 and on suchdeposit being made the liability of the respondent to pay anymaintenance for the further period shall come to an end.(iii) The amount of Rs.36 000 if deposited by the respondentwithin the period aforesaid in the Court of the District Judge shall be invested by that Court in a fixed deposit earningmonthly interest with some scheduled bank. The deposit shallbe made by the Court in its own name. The Court shall drawmonthly interest and pay the same to the appellant till herremariage or till her death whichever contingency occursearlier. On the death or remarriage of the appellant theprincipal alongwith interest if any accrued for the periodsubsequent to the remarriage or death of the appellant shallbe paid back to the respondent. The District Judge shall in thefirst instance invest this amount for a period of 7 years andmay renew it from time to time as the contingency mayrequire.(iv) In case the respondent fails to deposit the aforesaidamount of Rs.36 000 on or before 22.08.1982 the appellantshall be entitled to recover in lump sum Rs.30 000 towardsher permanent alimony. Hig h C o urt of H.P on 30 04 HCHP 33.After some time the applicant appellant had filed anapplication which was registered as CMP No. 898 forrescinding the decision dated 29.08.1980 however the same wasdismissed vide order dated 13.10.1998 and the applicant wasdirected to approach the appropriate Court forum as permissibleunder law.4.Accordingly the applicant approached the learnedDistrict Judge Mandi and filed an application under Section 25(2) ofthe Act but the same was dismissed and aggrieved by this dismissal the applicant filed the appeal i.e. FAONo. 501 beforethis Court.5.This appeal was disposed of as having beencompromised between the parties outside the Court. As per thecompromise agreement so arrived at between the parties the non applicant respondent agreed and undertook to deposit a further sumof Rs.1 50 000 on or before 31.03.2002 in addition to Rs.36 000 already deposited by him as per the decision dated 29.08.1980passed in LPA No. 80.6.This Court vide judgment dated 19.11.2001 has held thatthe applicant is entitled to interest on this total sum of Rs.1 86 000 w.e.f. 01.04.2001 till her life time or till her remarriage and Clause(iii) of the decision dated 29.08.1980 was modified. In additionthereto non applicant respondent also agreed to pay a sum of Hig h C o urt of H.P on 30 04 HCHP 4Rs.10 000 towards the total claim of enhanced maintenance to theapplicant upto 31.03.2002 on or before 31.12.2001.7.This Court while disposing of the appeal vide judgmentdated 19.11.2001 observed that in case of any difficulty liberty wasreserved to the parties to approach the Court for seeking furtherdirections clarifications.8.In this background the instant application has been filedby the petitioner for enhancement of the permanent alimony.9.Even though the non applicant respondent was grantedopportunity to file reply however he did not choose to do so as isevident from the statement given by his learned counsel today.I have heard learned counsel for the parties and havegone through the records of the case.10.Section 25 of the Hindu Marriage Act reads as under: “25. Permanent alimony and maintenance.Any courtexercising jurisdiction under this Act may at the time ofpassing any decree or at any time subsequent thereto onapplication made to it for the purpose by either the wife orthe husband as the case may be order that the respondentshall pay to the applicant for her or his maintenance andsupport such gross sum or such monthly or periodical sum fora term not exceeding the life of th applicant as having regardto the respondent’s own income and other property if any the income and other property of the applicant the conductof the parties and other circumstances of the case it mayseem to the court to be just and any such payment may besecured if necessary by a charge on the immovable propertyof the respondent. Hig h C o urt of H.P on 30 04 HCHP 5(2) If the court is satisfied that there is a change in thecircumstances of either party at any time after it has madean order under sub sectionit may at the instance ofeither party vary modify or rescind any such order in suchmanner as the court may deem just.(3) If the court is satisfied that the party in whose favour anorder has been made under this section has re married or ifsuch party is the wife that she has not remained chaste or ifsuch party is the husband that he has had sexualintercourse with any woman outside wedlock it may at theinstance of the other party vary modify or rescind any suchorder in such manner as the court may deem just.”11.At the outset learned counsel for the non applicant respondent questioned the very maintainability of this application onthe ground that since the judgment dated 19.11.2001 passed in FAO(HMA) No. 501 was on the basis of the compromise therefore the instant application for enhancement was notmaintainable. Learned counsel for the non applicant respondentfurther argues that the applicant by her own act and conduct isestopped from filing the present application and the previousdecision rendered by this Court operates as res judicata.12.Both these submissions of the learned counsel for thenon applicant respondent are not at all tenable in view of thejudgment rendered by a Coordinate Bench of this Court in KubjaDevi vs. Ishwar Dass AIR 2017 HP 21 wherein it was held thatwhere the maintenance is fixed by a Court though the basis of it wasan agreement it would come directly under Section 25 of the Act. Hig h C o urt of H.P on 30 04 HCHP 6Thus a party will be entitled to have an enhancement ofmaintenance once such party proves that there has been a materialchange in the circumstances justifying the enhancement. Therefore even if agreement relating to the quantum may be a part of thesettlement but when the decree passed on adopting the saidsettlement it becomes the order under Section 25(1) of the Act assuch the Court has statutory jurisdiction under Section 25(2) todirect enhancement of the maintenance with changedcircumstances. It was further held that neither the provisions ofSection 11 of the CPC nor the principles of res judicata will bar a suitof maintenance on an enhanced rate for a different period underaltered circumstances even though on an earlier occasion amaintenance decree has been passed and a certain rate ofmaintenance had been fixed thereunder. The reason being that sucha decree as to the rate of maintenance is not final.13.It is apt to reproduce relevant observations as containedin paras 5 and 6 of the judgment which read as under: 5. After hearing the matter at length in the light of the givenfacts and circumstances and also the evidence available onrecord as well as the law cited at the Bar it would not beimproper to conclude that the agreement qua the payment ofa sum of Rs. 450 per month to the petitioner as maintenanceallowance in terms of the divorce deed Ext.DA cannot betreated as an estoppal to debar the petitioner for seekingenhancement of the amount of alimony in the changedcircumstances. The law on the issue is no more res integra.The High Court of Tripura at Agartala in Harilal Sarkar vs.Subhra Sarkar 165 AIC 784 :2016 SCC OnLine Tri 356 a Hig h C o urt of H.P on 30 04 HCHP 7case having similar facts has held that an order quamaintenance allowance based on the settlement compromiseduring the course of proceedings in a divorce petition has tobe treated an order of maintenance passed under Section25(1) of the Hindu Marriage Act and as such a petition forenhancement of the amount filed under Section 25(2) of theAct is maintainable and not barred by the principle ofestoppal. It is seen that three points were formulated bylearned Judge after taking into consideration the provisions oflaw and also the law laid down by various high Courts by wayof judicial pronouncements and has held as under:“10.On the face of the submission made by the learnedcounsel for the parties 3(three) pertinent questions haveemerged for consideration which are as under :(i) Whether by agreement the jurisdiction of thecompetent court under Section 25(2) of the HinduMarriage Act 1955 can be oustedWhether the judgment and order dated 14.09.2010 isthe order of maintenance will not come within theprovince of Section 25(2).(iii) Whether the right to future maintenance istransferrable and if not whether the settlement is void so far the terms of maintenance is concerned WHETHER BY AGREEMENT THE JURISDICTION OF THECOMPETENT COURT UNDER SECTION 25(2) OF THEHINDU MARRIAGE ACT 1955 CAN BE OUSTED 11. By agreement jurisdiction of the court which has beencreated by a statute cannot be taken away. Section 25 as awhole confers the jurisdiction on the competent court toprovide permanent alimony and maintenance "at the timeof passing any decree or at any time subsequent thereto "on application made to it for the purpose by either the wifeor the husband as the case may be order that therespondent shall pay maintenance and support such grosssumwhich is factored by various element as Hig h C o urt of H.P on 30 04 HCHP 8statutorily provided or by the law as developed in thecourse of time. It is no more res integra that if anyagreement comes in conflict with any valid statute or itsprovision that becomes unlawful agreement and void interms of Section 23 of the Indian Contract Act. Hence thejurisdiction of the court for granting maintenance at thetime of passing any decree or subsequent thereto cannotbe taken away by the settlement agreement. It is true thatif the order is passed under Section 25(1) of the HinduMarriage Act 1955 in that case the competent court mayvary modify or rescind any order of maintenance or grossmaintenance in a change in the circumstance under Section25(2) of the Hindu Marriage Act 1955. But at the sametime if any settlement which has been acted on by thecourt or recorded the parties thereto cannot in the ordinarycourse take the stand contrary thereto and in that case their action might be hit by the principle of estoppel if not such stand emanates from the statute.WHETHER THE JUDGMENT AND ORDER DATED 14.09.2010 IS THE ORDER OF MAINTENANCE UNDER SECTION 25(1) OF THE HINDU MARRIAGE ACT OR NOT 12. There was a compromise petition before the court onsettlement of the quantum of the maintenance which wastermed as the fixed maintenance and the court had givenits approval by passing the compromise decree on grantingdivorce and maintenance. It is a well accepted propositionthat compromise decree pertains the charter of agreementand the decree is drawn accordingly. It can perhaps be saidthat the quantum of maintenance under the decree was notthe result of any decision by the court it was the result ofan agreement between the parties which wasacknowledged by the court for purpose of making itexecutable at the instance of maintenance holder. Hig h C o urt of H.P on 30 04 HCHP 913. In Seshi Ammal and another Vs. Thaiyu Ammal reported in AIR 1964 Madras 217(V 51 C 61) the MadrasHigh Court has enunciated the law holding that such a casewill be one where the maintenance is fixed by a decree ofcourt though the basis of it was an agreement it will comedirectly under Section 25. Thus the respondent will beentitled to have an enhancement of maintenance once sheproves that there has been a material change in thecircumstances justifying the enhancement. Therefore evenif agreement relating to the quantum may be the part ofthe settlement but when the decree passed on adopting thesaid settlement it becomes the order under Section 25(1) ofthe Hindu Marriage Act. And as such the court has thestatutory jurisdiction under Section 25(2) to directenhancement of the maintenance with a change in thecircumstances. The said manner may not be applicable inthe case where the permanent alimony has been settledand paid by means of one time payment. That payment hasto be treated as the property transferred for purpose ofmaintenance.WHETHER THE RIGHT TO FUTURE MAINTENANCE ISTRANSFERRABLE AND IF NOT WHETHER THE SETTLEMENTIS VOID SO FAR THE TERMS OF MAINTENANCE ISCONCERNED 14. Section 6(dd) of the Transfer of Property Act has beenincorporated by the Amending Act 1929. Prior to theamendment there was a conflict of opinion on whether aright of future maintenance when it was fixed by a decree was transferable. The Madras High Court held that it was in(Rajah D.K. Thimmanayanim Bahadur Varu Rajah ofKalahasti and others Vs. Rajah Damara Kumara VenkatappaNayanim Bahadur Varu and others reported in AIR 1928Madras 713) but the Calcutta High Court ruled that it wasnot. Asad Ali Mokat Vs. Haidar Ali reported in 191038Cal 13 did not agree with the decision of Madras High Hig h C o urt of H.P on 30 04 HCHP 10Court. The words ‘in whatsoever manner arising secured ordetermined’ as appearing are very comprehensive and it issubmitted that they overrule cases in which when the righthas been created by a deed of transfer it was held that thequestion whether the right was alienable depends upon theintention of the parties as expressed in the deed.15. The Privy Council in Lal Rajindra Narain Singh alias LalluSahib Vs. Mt. Sundar Bibi reported in AIR 1925 PC 176 heldthat a right of future maintenance cannot be attached asthe right to future maintenance is not capable of transfer. Inthis regard provisions of Section 60 of the Code of CivilProcedure 1908 can be referred as co terminous provisionof Section 6(dd) of the Transfer of Property Act as the saidprovision operates in the similar field for protection of rightof future maintenance from attachment. Therefore so farthe settlement is concerned the parties can determine inwhatsoever manner the maintenance in the circumstanceswhen the settlement or the compromise was struck. In thiscase the decree dated 14.09.2010 as passed by the Judge Family Court West Tripura in T.S.(Divorce) No. 1810is couched with the order of maintenance though thequantum has emerged from an agreement as stated andsuch order has been passed under Section 25(1) of theHindu Marriage Act 1956. There can be no otherinterpretation harmonious to the object of Section 25 of theHindu Marriage Act 1955. The determination of themaintenance was in the circumstances which existed at thetime of execution of the settlement compromise cannotextinguish the authority of the court as provided underSection 25(2) of the said Act. If the word fixed quantifyingthe maintenance is attributed and read in its literalmeaning such agreement shall come in conflict with thestatutory provision and the public policy hence that part ofthe agreement shall be void in terms of Section 23 of theIndian Contract Act. In the event of permanent alimony as Hig h C o urt of H.P on 30 04 HCHP 11settled and as termed as the property for maintenance willnot come within the province of Section 25(2).16. Hence there is not illegality when the Judge FamilyCourt Agartala exercised the jurisdiction under Section25(2) of the Hindu Marriage Act by enhancing themaintenance from Rs.4000 to Rs.6000 . Even if a fixedmaintenance allowance is agreed upon towards a decree ofdivorce the quantum if accorded and recorded by the court has to be understood for purpose of maintenance within theambit of Section 25(1) of the Hindu Marriage Act and with thechange in the circumstances the same shall be liable to bere assessed under Section 25(2) of the Hindu Marriage Act.The statutory purpose is very simple is to preserve the valueof the maintenance allowance. This statutory principle shallequally apply when the maintenance to be paid periodically interms of any settlement. 17. Having held so we do not find any merit in this appealfrom the order and accordingly the same is dismissed”.6. Similar is the ratio of High Court of Allahabad in Ram ShankerRastogi vs. Smt. Vinay Rastogi AIR 1991 Allahabad 255. Thefacts of this case were also identical to the present one beforethis Court. It has been held in this judgment that the plea ofestoppel or res judicata can not be invoked in a case of thisnature nor the question of maintainability of petition underSection 25(2) for enhancement of maintenance allowancepreviously awarded by a consent order cannot be raised. Thisjudgment reads as follows:“10. Neither the provisions of S. 11 of the Code of CivilProcedure nor the principles of res judicata will bar a suit formaintenance on an enhanced rate for a different period underaltered circumstances even though on an earlier occasion amaintenance decree had been passed and a certain rate ofmaintenance had been fixed thereunder. The reason beingthat such a decree as to the rate of maintenance is not final. Hig h C o urt of H.P on 30 04 HCHP 1211. The case of Hirabai Bharucha v. Pirojshah Bharucha AIR1945 Bombay 537 stems from proceedings under S. 40 ofthe Parsi Marriage and Divorce Act 1936. Under thisprovision a Court is authorised to award permanent alimonyto a wife either at the time of the passing of any decree underthat Act or subsequently thereto. The wife is granted a decreeof divorce. After the decree is passed the husband and wifearrive at certain consent terms. One of the terms of theconsent order is :"This Court doth declare that the defendant hereby agreesnot to claim any alimony now or at any time in future.".The wife applies under S. 40 for alimony. It is held that ongrounds of public policy the wife cannot enter into a contractthat she will not claim any alimony in future. The contract isvoid and the Court will take notice of that and ignore thatpart of the order although it was made by consent. Relianceis placed upon a remark by Lord Atkin:"The wife s right to future maintenance is a matter of publicconcern which she cannot barter away." Accepting this proposition the learned Judge takes the viewthat the wife cannot barter away her right to futuremaintenance and enter into a contract to that effect andsuch a contract will be a void contract in the eye of law. 12. Let us now read Section 25. Subsectioninter alia provides that any Court exercising jurisdiction under the Actmay at the time of passing any decree or at any timesubsequent thereto order that the respondent shall pay tothe applicant for her or his maintenance and support suchgross sum or such monthly or periodical sum for a term notexceeding the life of the applicant as having regard to therespondent s own income and other property if any theincome and the other property of the applicant the conductof the parties and other circumstances of the case which Hig h C o urt of H.P on 30 04 HCHP 13may seem to the Court to just. Sub sectionmay beextracted : If the court is satisfied that there is a change in thecircumstances of either party at any time after it has madean order under sub sectionit may at the instance ofeither party vary modify or rescind any such order in suchmanner as the court may deem just."Admittedly the Second Civil Judge exercised powers underthe Act while passing a decree of divorce under S. 13 and asalready indicated he passed an order fixing a certain sum asthe monthly maintenance allowance for the wife. The Courtdid not pass any order that the wife will not claim anenhancement of the maintenance allowance in futureAssuming a wife gives up her right to claim a higher rate ofmaintenance allowance in future her consent in our opinion will not bring into existence a valid contract. Such anagreement will not only defeat the provisions of subsection(2) of S. 25 but will also frustrate the purpose of givingmaintenance allowance. Judicial notice can be taken of risingprices with the result that the cost of bare existence isregularly rising rather mercurially. In principle it makes nodifference between an agreement by a wife not to claim anyalimony at all and an agreement not to claim anyenhancement of the rate of maintenance allowance whatever be the change in the circumstances”.14.Now adverting to the facts of the case it would benoticed that initial order of maintenance was passed four decadesback on 29.08.1980 and thereafter the same was enhanced by anorder which was passed nearly two decades back on 19.11.2001.15.The inherent and fundamental principles of grantingmaintenance is for the amelioration of the financial state of affairs as Hig h C o urt of H.P on 30 04 HCHP 14well as mental agony and anguish that a woman suffers when she iscompelled to leave her matrimonial home. The matrimonial statutesdealing with the subject command that there have to be someacceptable arrangements so that she can sustain herself. A womanwho is constrained to leave matrimonial home should not be allowedto feel that she has fallen from grace and compelled to move hitherand thither for arranging sustenance. As per law she is entitled tolead a life in similar manner as she would have lived in the house ofher husband. She cannot be compelled to become a destitute orbeggar.16.The purpose is to achieve ‘social justice’. In interpretingprovisions relating to maintenance the Court is expected to bridgethe gap between law and the society. Provisions relating tomaintenance fall in category of legislation which is aimed atempowering the destitute and achieving the social justice equityand dignity of the individual. In dealing with such cases there isnecessity for drift from the ‘adversarial litigation’ to social contextadjudication” which is the need of the hour.17.In granting permanent alimony no arithmetic formula canbe adopted as there cannot be mathematical exactitude. It shalldepend upon the status of the parties their respective social needsand financial capacity of the husband and other obligations. TheCourt is required to take note of the fact that amount of maintenancefixed for the wife should be such as she can live in reasonable Hig h C o urt of H.P on 30 04 HCHP 15comfort considering her status and the mode of life she was used towhen she lived with her husband. At the same time the amount sofixed cannot be excessive or affect the living condition of the otherparty. 18.The Hon’ble Supreme Court in Vinny Parmvir Parmarvs. parmvir Parmar AIR 2011 SC 2748 held as follows: “…. It is further seen that the court considering suchclaim has to consider all the above relevant material anddetermine the amount which is to be just for livingstandard. No fixed formula can be laid for fixing theamount of maintenance. It has to be in the nature ofthings which depend on various facts and circumstancesof each case. The court has to consider the status of theparties their respective needs the capacity of thehusband to pay having regard to reasonable expensesfor his own maintenance and others whom he is obligedto maintain under the law and statute. The courts alsohave to take note of the fact that the amount ofmaintenance fixed for the wife should be such as she canlive in reasonable comfort was used to live when shelived with her husband. At the same time the amount sofixed cannot be excessive or affect the living condition ofthe other party. These are all the broad principles courtshave to be kept in mind while determining maintenanceor permanent alimony.”19.In Vishwanath Sitaram Agrawal vs. Sau. SarlaVishwanath Agrawal AIR 2012 SC 2586 the Hon’ble SupremeCourt while granting permanent alimony has observed that theamount that has already been paid to the respondent wife towards Hig h C o urt of H.P on 30 04 HCHP 16alimony is to be ignored as the same had been paid by virtue of theinterim orders passed by the courts. It is not expected that therespondent wife has sustained without spending the said money.20.The Division Bench of the Orissa High Court in Ruby @Pritipadma Pradhan vs. Debasish Pradhan 2014Orissa LR691 after taking note of the various decisions on the subject hassummed up the principles as follows:Maintenance depends upon the summation of all the factsof the situation involved in the particular case.(b) For granting maintenance the scale and mode of living the age habits wants and class of the life of the parties hasto be regarded.Maintenance being such that the wife could live in areasonable comfort considering her status and mode of lifewhich she was used to while living with her husband.(d) During the pendency of the suit for maintenance whichmay take a considerable time to attain finality the wifecannot be forced to face starvation till she is subsequentlygranted maintenance from the date of the filing of the suit.(e) Maintenance must necessarily encompass a provision forresidence. Maintenance is given so that the lady can live inthe manner more or less to which she was accustomed.(f) Maintenance necessarily must encompass a provision forresidence. Maintenance is given so that the lady can live inthe manner more or less to which she was accustomed. Theconcept of maintenance must therefore include provision forfood and clothing and the like and take into account the basicneed of a roof over the head.(g) Maintenance must vary according to the position andstatus of a person. It does not only mean food and raiment.It is to be seen that the amount fixed cannot be excessiveaffecting the living condition of the other party. Hig h C o urt of H.P on 30 04 HCHP 1721.The Hon’ble Supreme Court in Kalyan Dey Chowdhuryvs. Rita Dey Chowdhury Nee Nandy14 SCC 200 whiledealing with the case of maintenance has calculated the permanentalimony on the basis of 25% of the salary of the husband in thefollowing words: “15…...Following Dr. Kulbhushan Kumar vs. Raj Kumari andAnr. 1970SCC 129 in this case it was held that 25% ofthe husband’s net salary would be just and proper to beawarded as maintenance to the respondent wife. Theamount of permanent alimony awarded to the wife must bebefitting the status of the parties and the capacity of thespouse to pay maintenance. Maintenance is alwaysdependent on the factual situation of the case and the courtwould be justified in moulding the claim for maintenancepassed on various factors.”22.The respondent in the instant case is a retired Shashtriteacher and is currently drawing a pension of about Rs.32 000 .Whereas the applicant has admittedly no independent source ofincome and is receiving interest of Rs.1240 per month which isaccruing on the amount invested in the bank pursuant to thedirections passed by this Court in FAO(HMA) No. 501Judge 28.04.2021 