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Madhya Pradesh High Court · body

2002 DIGILAW 910 (MP)

Mahesh Prasad v. Chhoti Bai

2002-10-01

DIPAK MISRA

body2002
Judgment ( 1. ) IN this appeal preferred under Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) the husband/appellant has called in question the justifiability and the legal validity of the judgment and decree dated 18-10-93 passed in Civil Suit No. 22-A/91 by the learned District Judge, Hoshangabad to the extent that the said Court has granted permanent alimony at the rate of Rs. 300/- per month at the time of passing of the decree under Section 25 of the Act. ( 2. ) THE appellant as plaintiff had instituted the aforesaid suit for divorce on the ground of cruelty and dessertion. Many an averment was putforth to obtain a decree for divorce. An application preferred under Section 13 of the Act was resisted by the wife on the ground that she had not misbehaved in a cruel manner and the factum of dessertion, as putforth by the plaintiff, did not deserve consideration. ( 3. ) DURING the pendency of the suit an application under Section 24 of the Act was filed and the learned Trial Judge considering the facts and circumstances of the case fixed the interim maintenance at the rate of Rs. 150/-per month. ( 4. ) THE leaned Trial Judge considering the totality of circumstances, evidence brought on record and being satisfied granted a decree for divorce in favour of the husband. While so doing he has also granted permanent alimony in exercise of powers conferred on it under Section 25 of the Act. ( 5. ) ASSAILING the aforesaid part of the decree Mr. A. D. Deoras, learned Counsel for the appellant has raised a singular contention that the learned Trial Judge has fallen into grave error by exercising the power under Section 25 of the Act when neither an independent application in that regard was filed nor any stance, in the written statement, was putforth. ( 6. ) DESPITE service of notice there has been no appearance on behalf of the respondent/wife. ( 7. ) ON a perusal of the plaint, written statement and the documents brought on record it clearly transpires that there was no application for grant of permanent alimony. No such stand was setforth in the written statement. In this context it is profitable to refer to Section 25 of the Act. It reads as under:- "25. ( 7. ) ON a perusal of the plaint, written statement and the documents brought on record it clearly transpires that there was no application for grant of permanent alimony. No such stand was setforth in the written statement. In this context it is profitable to refer to Section 25 of the Act. It reads as under:- "25. Permanent alimony and maintenance.-- (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 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 respondents own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just, and any such payment may be secured, it 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) If the Court is satisfied that the party in whose favour an order has been made under this section has remarried or, if such party is the wife, that she has not remarried chaste, or, if such party is the husband that he has bad sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order such manner as the Court may deem just. " ( 8. ) MR. Deoras, learned Senior Counsel has commended me to the decision rendered in the case of Jitbandhan v. Gulab Devi, 1983 MPLJ Note 4, wherein the learned Chief Justice spoke thus :- "the jurisdiction under Section 25, Hindu Marriage Act, 1955, is attracted on application made to the Court for that purpose by either the wife or the husband. ) MR. Deoras, learned Senior Counsel has commended me to the decision rendered in the case of Jitbandhan v. Gulab Devi, 1983 MPLJ Note 4, wherein the learned Chief Justice spoke thus :- "the jurisdiction under Section 25, Hindu Marriage Act, 1955, is attracted on application made to the Court for that purpose by either the wife or the husband. In the absence of an application by the wife or the husband, the Court has no jurisdiction to pass an order under Section 25 for permanent alimony and maintenance. " ( 9. ) IN the case of Smt. Chhaya Kshatriya v. Pramod Kumar Kshatriya, 1999 (II) MPJR 82 , wherein the Division Bench of this Court observed that the nature of controversy which is determined under Section 25 of the Act is quite different than what is done under Section 24 of the Act or for that matter under Section 26 of the Act. The Division Bench referred to the decision rendered in the case of Jitbandhan (supra) and held as under :- "8. The view taken in the aforesaid revision in consonance with the mandate of the statute and we find that the learned Single Judge has placed reliance on it and, we would say, rightly. We would hasten to add that when a liability is going to be saddled on the husband or wife, and the liability can be onerous, there has to be compliance with principles of natural justice. If no application is filed and the plea of the relief-seeker is not known and the other side is kept in dark and the Court exercises its jurisdiction without proper scrutiny of the factual backdrop, and without being in a position to consider the defences of the other side, the whole adjudication would be against the concept of, audi alteram partem, and for that reason, in our humble view, the Legislature in its wisdom has qualified the situation by on an application made to it for the purpose. The application can be filed during the pendency of the suit, contesting respondent can be afforded reasonable opportunity to resist the same and thereafter, the Court would dispose of the controversy at the time of delivery of the judgment if other condition precedent, i. e. , disruption of marital status, has been satisfied. The application can be filed during the pendency of the suit, contesting respondent can be afforded reasonable opportunity to resist the same and thereafter, the Court would dispose of the controversy at the time of delivery of the judgment if other condition precedent, i. e. , disruption of marital status, has been satisfied. The parties can adduce evidence in that regard and the Court on consideration of the materials on record can proceed to pass necessary order as enjoined under law. This would subserve the cause of justice and would be in consonance with the principles of natural justice. It is to be borne in mind that concept of natural justice has been described as substantial requirements of justice by Kerl Selborne, L. C. in Arthur John Spokmen v. The Plustood District Board of Works. Recently this Court in the case of Nandlal Kanoria v. National Industrial Development Corporation Ltd. and Ors. , has held thus :-" a duty to act fairly having respect for what is right and wrong is the quite essence of principles of natural justice. The other side has to be heard before any adverse order is passed. In this context I may also refer to the principle embodied in qui aliquid statuerit, parte inaudita altera, aequum licet dexerit, hand aequum facerit, that is, he who determines any matter without hearing both sides, though he may have decided right, has not done justice. It is well settled in law that justice should not only be done but should manifestly be seen to be done. " The sacrosanctity of the marriage and the nobility of the sacred relationship are recognised in all civilised societies. In fact, emotional bedrock of the society is founded on the sound material relationship. But when disruption takes place, the protagonists have to surrender to the requirements of law and are to be guided by its mandate. Neither sympathy nor empathy can marginalise, the statutory requirements. In view of this analysis of ours, we concur with the view taken by the learned Single Judge and affirm the judgment and decree passed by him. " ( 10. Neither sympathy nor empathy can marginalise, the statutory requirements. In view of this analysis of ours, we concur with the view taken by the learned Single Judge and affirm the judgment and decree passed by him. " ( 10. ) IN view of the aforesaid pronouncements of law there remains no iota of doubt that the direction issued by the learned Trial Judge is unsustainable inasmuch as the decree for permanent alimony has been passed in the absence of application in that regard or any pleading to that effect in the written statement. As a logical corollary the decree passed by the learned Trial Judge is set aside to that extent and it would be open to the respondent to file an independent application in this regard. If such an application is filed the learned Trial Judge shall bestow his anxious consideration and deal with the same in accordance with law. ( 11. ) IT is appropriate to mention here that this Court while admitting the appeal on 20-1-94 had directed the plaintiff/appellant to pay the maintenance allowance at the rate of 150/- per month and on that condition the operative part of the decree was stayed. Keeping in view the fact that the respondent has availed the said benefit, though the decree is set aside in that regard, I am not inclined to direct that there shall be recovery of the aforesaid amount. ( 12. ) THE appeal is allowed to the extent indicated above without any order as to costs.