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1999 DIGILAW 171 (MP)

Smt. Archana Singh v. Dharampal Singh

1999-02-18

S.C.PANDEY

body1999
JUDGMENT S.C. Pandey, J. 1. This is an appeal under Section 28 of Hindu Marriage Act (henceforth "the Act"), filed by the wife, Smt. Archana Singh, against the order dated 13th of February, 1997 passed by Vth Additional District Judge, Rewa in Civil Suit No. 13-A of 1995. 2. In this appeal, the appellant does not challenge the decree of divorce granted by the learned Additional District Judge on the ground that the appellant had deserted the respondent without any reasonable and probable cause and she was not performing her marital duties. It was held that this action on the part of the appellant amounted to mental cruelty and, therefore, the respondent was entitled to a decree of divorce. 3. The appellant filed an application under Section 25 of the Act claiming that she was entitled to permanent alimony, in case, a decree for divorce is granted. Section 25(1) of the Act provides that any party to a case under the Hindu Marriage Act, at the time of passing of the decree or subsequent thereto may apply for grant of maintenance and support for a period of his or her life-time. It has also been provided that the Court shall determine monthly or periodical sum for that period after having regard to the income and property of the applicant and of the opposite party, conduct of the parties and other relevant circumstances of the case and then pass an appropriate order in accordance with law including by creation of charge on the immovable property of the party against whom the order is passed. However, the sine qua non for passing the order under Section 25 of the Act is that the Court is given wide discretion in the matter after considering the circumstances mentioned therein for coming to the just conclusion. 4. The Court below, however, has been guided by the fact that the respondent was not willing to live with her husband and, therefore, she was not entitled to any order under Section 25 of the Act. 5. The learned Counsel for the appellant argued that the consideration aforesaid would be irrelevant for deciding the application under Section 25 of the Act. In this connection, the learned Counsel for the appellant placed reliance on a decision in N. Varalakshmi v. N.V. Hanumantharao, reported in AIR 1978 A.P. 6 . 5. The learned Counsel for the appellant argued that the consideration aforesaid would be irrelevant for deciding the application under Section 25 of the Act. In this connection, the learned Counsel for the appellant placed reliance on a decision in N. Varalakshmi v. N.V. Hanumantharao, reported in AIR 1978 A.P. 6 . In this case, it was held that merely because a decree for divorce is granted and the matrimonial tie is broken, the bride cannot be deprived of interim maintenance. It was further held in this case that the conduct of wife could be considered for refusing the application under Section 25 of Hindu Marriage Act, but the conduct should be such as would shake the conscience of the Court and appear to be abominable. It was specifically laid down in this case that the Court is not entitled to refuse permanent alimony on the mere fact that the wife unjustly deserted the husband and as a consequence thereof the husband was compelled to file an application for divorce. 6. The learned Counsel for the respondent, on the other hand, supported the paragraph 19 of the impugned Judgment whereby the application under Section 25 of the Act was rejected. 7. Having heard the learned Counsel for the parties, this Court is of the opinion that the learned Judge Was moved by the consideration that the wife had refused to live with the husband as claimed by him by way of an alternative plea under Section 9 of the Act. It appears that the Trial Court was unduly affected by refusal of wife to live with the husband and did not consider the point of view of the wife; and this aspect of the matter has swerved the course of justice. No doubt, it is the duty of the trial Judge to see that so far as possible reconciliation should be made between husband and the wife so that the matrimonial tie is not broken. However, the endeavour of the Presiding Judge must end the desire of the parties and it should be forgotten at the moment that the parties do not live together. For determining the case for grant of application under Section 25 of the Act the effect of non-reconciliation on the part of the parties should not be blown out of all the proportions. For determining the case for grant of application under Section 25 of the Act the effect of non-reconciliation on the part of the parties should not be blown out of all the proportions. In this case, the wife had deserted the husband and consequently a decree of divorce was granted. In a Court of law it would be almost impossible to find out the true facts regarding the justification of the conduct of wife. She was required to live with the parents of the husband. She would not be able to prove facts for justifying her conduct. The fact remains that she was required to live in strange place without the support of the persons who could adjust with her despite her defects. In that situation refusal of wife to live with the husband may have some justification which she was unable to prove in accordance with law. Consequently, the Court may objectively consider conduct of the husband too alongwith that of wife for coming to just conclusion. The Court cannot take one sided view of the matter. In this case, the learned trial Judge seems to have been irked by refusal of wife to live with the husband. No decision should be taken on the basis of any personal predilections. 8. The question still remains that in a Hindu society wife has hardly any chance to remarry. She cannot permanently live with her parents for the simple reason her parents are likely to out live her in normal circumstances where she will go. She is, therefore, entitled to maintenance and it is the legal duty of the husband under Section 25 of the Act to divorcee wife. Considering the case of the appellant with this circumstance alongwith other circumstances of the case this Court is of the view that the application of the wife was not rightly rejected by the Court below. 9. Since there was no finding regarding the amount of maintenance to which the appellant shall be entitled, the case is sent back to the Trial Court for determination of the amount. The up shot of the aforesaid discussion is that the impugned Judgment dated 13th of February, 1997, so far it relates to dismissal of the appellant's application (as per paragraph 19 of the impugned Judgment) under Section 25 of the Act is hereby set aside. The up shot of the aforesaid discussion is that the impugned Judgment dated 13th of February, 1997, so far it relates to dismissal of the appellant's application (as per paragraph 19 of the impugned Judgment) under Section 25 of the Act is hereby set aside. The case is remanded back to the Trial Court for determining the amount as to what extent the appellant shall be entitled to get from the respondent per month towards her maintenance. The parties are directed to appear before the Trial Court on 21st of April, 1999. The appeal is allowed to the extent indicated above. The record of the Trial Court be sent immediately. No costs.