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1994 DIGILAW 332 (KER)

Gopi v. Premila

1994-08-31

M.M.PAREED PILLAY, V.V.KAMAT

body1994
Judgment :- Kamat, J. Two moot questions, obviously of law, are raised before us in this appeal. They are as follows: 1 . Whether the appeal as presented is maintainable under S.19 of the Family Courts Act, 1984 or under S.28 of the Hindu Marriage Act, 1955. 2. Whether on the admitted position that (here is a decree of nullity of the family Court on the ground that the wife - Premila, at the time of marriage, was pregnant by some person other than the husband, it would be just to pass an order of permanent alimony and maintenance under S.25 of the Hindu Marriage Act, 1955 which has been done by the impugned order. 2. The facts would get encompassed narrowly for the answer of the two questions. 3. In O.P. 97 of 1992, the Family Court, Ernakulam passed a decree of nullity in favour of the husband (the present respondent) holding that the wife at the time of marriage was pregnant by some person other than her husband. This decree is final and therefore conclusive between the parties. 4. The present respondent wife - Premila - thereafter presented an application under S.25 of the Hindu Marriage Act 1955 for permanent alimony and maintenance. By the impugned order the learned judge of the Family Court has granted permanent maintenance of Rs. 250/- per month from the date of the impugned order - January 18,1994. 5. S.25 of the Hindu Marriage Act, 1955 enacts a substantive provision empowering the Court to grant permanent alimony and maintenance to the parties to the marriage, either at the time of passing the decree or at any time thereafter on an application made to it. The section provides that certain factors are to be taken into consideration by the Court to reach a conclusion that the award of alimony and maintenance would be just in the circumstances. For the purpose of this appeal the two factors which are introduced by Act No. 68 of 76 are "the conduct of the parties" and "other circumstances of the case". This being a substantive provision empowering the Court it is obvious that the order passed thereon cannot have any of the adjectives of an interlocutory order. Be that as it may, such an order would clearly be an appealable order under S.28 of the Hindu Marriage Act, 1955. This being a substantive provision empowering the Court it is obvious that the order passed thereon cannot have any of the adjectives of an interlocutory order. Be that as it may, such an order would clearly be an appealable order under S.28 of the Hindu Marriage Act, 1955. Apart there from, such proceedings, after the enactment of the Family Court's Act, 1984, being required to be presented before the Family Courts constituted under the said Act would also be appealable on a perusal of the S.19 thereof. 6. S.19(1) of the Family Courts Act, 1984 enacts as follows. Appeal: (1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 or in the Code of Criminal. Procedure, 1973 or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law". For the purpose of considering the question of maintainability of the appeal, provisions of S.19(1) quoted above would be more than sufficient. It provides that an appeal shall lie from every judgment or order of the Family Court to the High Court on facts and on law. The only exception is that the order should not be an interlocutory order. The character of the order impugned before us has spelt out above clearly shows that it is an order under a substantive provision creating independent rights under Hindu law of Marriage after the dispute is finally terminated. By no stretch of imagination the order can be said to be a interlocutory order. The conclusion is that this appeal is not only maintainable but is competent both under S.19 of the Family Courts Act 1984 as well as under S.28 of the Hindu Marriage Act. 7. As far as the merits are concerned, the basic fact, that the marriage is declared as nullity on the ground that the respondent was at the time of marriage pregnant by some person other than the husband, cannot be ignored for any purpose whatsoever. We are surprised that the impugned judgment exposes the bliss of this ignorance. 8. 7. As far as the merits are concerned, the basic fact, that the marriage is declared as nullity on the ground that the respondent was at the time of marriage pregnant by some person other than the husband, cannot be ignored for any purpose whatsoever. We are surprised that the impugned judgment exposes the bliss of this ignorance. 8. In S.25 by its introduction, by Act No. 68 of 76 all the factors relating to the conduct of the parties and other circumstances of the case required to be taken into consideration to reach a conclusion that an order of permanent alimony and maintenance would be just. We do not find any kind of a reference even by a whisper in the impugned judgment. Infact even a thought of granting permanent alimony and maintenance in such a situation would be nothing other than foisting unjustifiably the liability of a marriage which is declared null and void, more especially with reference to the grounds thereunder. It will have to be stated that a decree of nullity on the ground under which it has been passed would have a permanent effect in the nature of an exception to the continuance of the liability of permanent alimony and maintenance under S.25 of the Hindu Marriage Act 1955. Apart there from facts clearly stare in the face of the proceedings that the respondent - wife with this decree of nullity cannot have any legal right to maintenance under S.25 of the Hindu Marriage Act, 1955. 9. For the above reasons we hold that the appeal is maintainable both under S.19 of the Family Courts Act 1984 as well as under S.28 of the Hindu Marriage Act, 1955. We also hold that the appellant-husband cannot be held liable to be directed to pay maintenance. 10. The appeal stands allowed, impugned order dated January 18,1984 in interlocutory application 1229/92 (as wrongly registered) in O.P. 97 of 1992 gets quashed and set aside with a consequential order that the said application under S.25 of the Hindu Marriage Act, 1955 stands dismissed. In the circumstances there shall be no order as to costs.