Sinha, J.
1. This is an appeal against an order of Ray J., dated 25th June 1963. The facts in this case are as follows: On or about the 24th June, 1953 the appellant filed a suit against the respondent, her husband, being Suit No. 2190 of 1953 for maintenance and other reliefs. On the 24th June, 1954 a decree was passed by G.K. Mitter J., directing the respondent to pay to the appellant a sum of Rs 40/- per month as maintenance. In the said decree, no liberty was given to the decree-holder to apply from time to time for increasing the amount of maintenance due to change of circum-stances. In December, 1955 the appellant made an application before Mitter J., for enhancement of her maintenance. On 27th February,1956 the learned Judge passed an order increasing the maintenance from Rs. 40/- to Rs. 50/-per month. In February, 1960 the appellant made another application asking for the enhancement of her maintenance from Rs. 50/-to Rs. 100/- per month. On the 18th March, 1960 this application was dismissed by Ray J. On the 13th December, 1960 the appellant made a further application for enhancement of her maintenance from Rs. 50/- to Rs. 100/-. On the 11th April, 1961 G.K. Mitter, J., passed an order increasing the maintenance from Rs. 50/- to Rs. 55/- per month. On 7th June, 1963 the appellant took out a notice of motion asking for increase of the maintenance to Rs. 100/- per month. This application was resisted by the respondent. On 25th June, 1963 the matter came up for hearing before Ray J., who dismissed the application but made no order as to cost. It is against this order that this appeal is directed.
2. The learned Judge in the court below has considered all the facts of the case. According to the appellant, she resides in a rented house at a monthly rental of Rs. 25/- and her average monthly expenses exceed Rs. 100/-. The respondent was employed by Messrs, Macnell and Barry and his basic pay was Rs. 284/-. With clearness allowance he was getting Rs. 460/- per month. It is further alleged that he realises monthly rent from a house at Haltu aggregating to Rs. 180/-. In the affidavit in opposition, the respondent has mentioned that he was suffering from tuberculosis and he has another wife and several children whom he has to maintain. He also has to maintain his blind sister. He was indebted to the Mercantile Co-operative Society Ltd., to the extent of Rs. 4619/- and a sum of Rs. 140/-was deducted from his pay every month. The learned Judge, after taking into consideration all the facts, came to the conclusion that no in crease in the rate of maintenance was justified. We have been informed that since the passing of the order in the court below, the respondent has retired and his pension is approximately Rs. 227/- per month. We do not see any reason to differ with the learned Judge on the merits and see no reason to interfere with the finding as to the quantum of maintenance. I might mention here that we made an attempt to settle the matter, but owing to the attitude taken by the appellant the matter could not be settled. In the court below, the learned Judge has observed that the decree provided maintenance for Rs. 40/- per month, but did not provide for any increment by reason of change of circumstances. Mr. Ghosh appearing on behalf of the respondent has taken the point that under such circumstances, an application does not lie for increase of maintenance even under the provisions of the Hindu Adoption and Maintenance Act, 1956. In view of the repeated applications made in this case and in view of the observations made by the court below, we are of the opinion that this point of law should be allowed to be taken although in the memorandum of appeal there is no specific ground to that effect. The matterhas been argued before us fully by both the parties and we proceed to give our decision on the point. For this purpose, we have to examine the provisions of the Hindu Adoptions and Maintenance Act (Act 78 of 1956) (hereinafter referred to as the 'said Act') Chapter III of the said Act deals with subject of 'maintenance'. Section 18(1) provides that subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of the said Act, shall be entitled to be maintained by her husband during her lifetime. Section 23 of the said Act provides for the amount of maintenance. Sub-section (1) provides that it shall be at the discretion of the court to determine whether any, and if so what, maintenance shall be awarded under the provisions of the said 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. Sub-section (2) relates to the amount of maintenance to be granted to a wife, children or aged or infirm parents. Sub-section (3) relates to the amount of maintenance to be awarded to a dependant under the said Act. We are not concerned with Sub-section (3). Sub-section (2) provides that, in determining the amount of maintenance, regard shall be had to the position and status of the parties; the reasonable wants of the claimant; if the claimant is living separately whether the claimant is justified in doing so, 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 etc., and the number of persons to be maintained by the person who is to pay the maintenance. Section 25 is important and is set out below:
'The amount of maintenance, whether fixed by a decree of court or by agreement either before or after the commencement of this Act, may be altered subsequently if there is a material change in the circumstances justifying such alteration.'
This statutory provision is no more than a codification of the existing provisions of the Hindu Law which always conferred power upon the court to alter the amount of maintenance where circumstances have altered. The point, however, is as to the procedure to be adopted in making such alteration. Briefly speaking, the law before the introduction of the said Act was that, where a decree was passed for maintenance and it contained provisions for making an application to alter the quantum of the maintenance owing to change of circumstances, then and then only an application could be made. Otherwise, the court had no jurisdiction to alter the amount of a decree by means of an application, and it was always necessary to institute a suit for that purpose. The question is as to whether the position has, altered under the said Act. This requires a consideration of several decisions. But before I do so, I would like to refer to the provisions of the Hindu Marriage Act 1955 (Act XXV of 1955) and consider an analogous provision with regard to the payment of permanent alimony and maintenance where a decree is passed underthe provisions of the same Act. I set out below the provisions of Sub-sections (1) and (2) of Section 26:
'25 (1) Any court exercising jurisdiction under this Act, may at the time of passing any decree or at any time subsequent thereto on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall, while the applicant remains unmarried, pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant and the conduct of the parties, it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.
2. If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under Sub-section (1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.'
3. It will be observed that in this provision, it is expressly mentioned that the payment of maintenance may be ordered at the time of the passing of the decree or at any time thereafter by application made to the court which may vary, modify or rescind any such order in such manner as it may deem fit and just. While Section 25 of the Hindu Marriage Act expressly lays down a procedure by way of an application, Section 25 of the said Act does not lay down any such procedure.
4. The first case to be considered is a Division Bench judgment of the Bombay High Court--Ranmalsangji Bhagwatsangji v. Bai Kundankuwar, (1902) ILR 26 Bom 707. The facts in that case were as follows: On the 14th June, 1898, the respondent obtained a decree for maintenance against her husband, the appellant. The decree directed him to pay her as maintenance Rs. 1,200 a year in two instalments of Rs. 600/ payable on 20th January and 20th March in each year. On 22nd February, 1901 the payment having fallen in arrears, the respondent applied for execution of the decree. The appellant objected and contended that she had lost her right to maintenance inasmuch as she had left his house without any cause and without his consent. This contention of the husband was negatived. It was held by Batty J., that such a defence might have been a good answer to a wife setting up a claim of maintenance under the Hindu Law by way of a suit. Here, however, the claim had ripened into a decree which contained no term that the execution thereof should be dependent upon her place of residence or upon any other matter whatsoever. The learned Judge said as follows:
'This might be a good answer to a wife setting up an ordinary claim to maintenance under Hindu Law. But here the claim is under the special provisions of a decree expressly dealing with the circumstances of this particular case. And that decree, passed in relation to those circumstances, contained no provision whatever that the rights thereby conferred on the respondent should be dependent upon her place of residence or upon any other matter whatsoever. It conferred in terms an unconditional and absolute right to the maintenance specified therein. There is neither necessity nor justification for any conjecture as to the reasons for that decision or as to the propriety thereof. It is binding in execution on the parties thereto, and neither of them could go behind it or add to it a condition which it does not contain. A decree for maintenance might be so framed as to admit of modification of its terms with reference to post-decretal changes in the circumstances or in the relations of the parties. No authority has, however, been cited to show that such modifications could be made on application in execution when the decree contains no provision in that behalf.'
5. In Gopikabai v. Dattatraya, (1900) ILR 24 Bom 386 there was no provision in the decree for reducing the rate of maintenance, a Division Bench of the Court, held that a separate suit would lie for the reduction of the rate of maintenance awarded by the prior decree; but that it would be convenient that Courts should insert words in decrees for maintenance which would enable them on application to set aside or modify their orders as circumstances might require. Batty, J., observed that the corollary of the decision was that when no such right to apply was reserved in the decree, the remedy appropriate being a fresh suit, no application in execution could be made for such purpose. The next case to be considered is a Bench decision of the Nagpur High Court--Trimbak v. Mt. Bhagu Bai, ILR 1941 Nag 437: (AIR 1939 Nag 249). Vivian Bose J., delivering the judgment held that in the absence of an express direction to the contrary, a maintenance allowance payable to a Hindu widow under an agreement or a decree, was subject to variation according to the fluctuations in the family income. The question however, arose as to the procedure by which it could be done. The learned Judge referred to certain cases where the rate had been varied but where the question did not arise or was not determined as to whether a separate suit was necessary or whether it could be done by an application. The learned Judge followed the decision of the Bombay High Court in (1902) ILR 26 Bom 707 (Supra) and held that the proper remedy was by way of a separate suit. This view was reiterated in another Division Bench judgment of the Nagpur High Court Mt. Savitribai v. Radhakisan AIR 1948 Nag 44. In that case also, a question arose whether the amount of maintenance previously paid under a decree could be reduced. After relying on the decision in Trimbak's case, ILR (1941) Nagpur 437 : (AIR 1939 Nag 249) mentioned above, the learned Judges held that when the amount of maintenance was fixed in a decree, the figure stood until it was varied by a second decree in a separate suit brought for the purpose, unless the original decree on the face of it provided machinery for its own variation.
The next case to be considered is a Bench decision of the Madras High Court Sankaranarayana Ayyar v. Lakshmi Ammal : AIR1960Mad294 . The facts in that case were as follows: The respondent No. 1 was a Hindu widow who instituted a suit in forma pauperis for recovery of arrears of maintenance, and for enhancement of maintenance. It was held there that the rate determined by a prior decree for maintenance in favour of a Hindu widow must prevail under it is varied, but that the court has power to vary that rate in a fresh suit instituted for that purpose. A point was determined as to whether the variation can be made prior to the date of the filing of the suit, but this is a matter with which we are not concerned. This decision is rather important because it was delivered after the said Act came into operation. I now come to the delineation of the law by Mr. Mulla in his 'Principles of Hindu Law' 12th Edition page 719. The learned author states as follows:
'Amount may be increased or decreased The amount of maintenance, whether it is fixed by a decree or by agreement, is liable to be increased or diminished, whenever there is such a change of circumstances as would justify a change in the rate.. .... .. Section 25of the Hindu Adoptions and Maintenance Act, 1956, now lays down that the amount of maintenance, whether fixed by a decree of Court or by agreement, either before or after the commencement of the Act, may be altered subsequently if there is a material change in the circumstances justifying such alteration. ......Procedure. A separate suit must be brought to vary the rate of maintenance fixed by a decree, unless the decree contains a clause enabling the parties to apply for a modification of its terms, in which case an application may be made to alter the rate in execution proceedings. (1902) ILR 26 Bom 707. Savitribai v. Radhakishan, ILR (1947) Nag 393 : (AIR 1948 Nag 46).
6. In our opinion, under Section 26 of the said Act, alteration in the amount of maintenance fixed by a decree cannot be order ed by an application, unless there is provision in the decree itself granting liberty to the decree-holder to have such variation made by way of an application. Where there is no such provision, the only way in which the amount of maintenance fixed by a decree can be varied is by way of a suit. In the instant case, the original decree did not contain any such provision and consequently the variation in the amount of maintenance cannot be ordered by way of an application. For that purpose, it would be necessary to institute a suit. The application resulting in the decree appealed against was misconceived, and was liable to be dismissed.
7. For the reasons aforesaid this appeal fails and should be dismissed. We make no order as to cost.
A.C. Sen, J.
8. I agree.