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2013 DIGILAW 1271 (MP)

Manoj v. Raksha

2013-10-23

M.C.GARG, SHANTANU KEMKAR

body2013
JUDGMENT Shantanu Kemkar, J. Feeling aggrieved by the judgment and decree dated 7-5-2010 passed by the Principal Judge, Family Court, Indore in Hindu Marriage Case No. 690/2009, whereby granting maintenance to the respondent/wife and child, the appellant has filed this appeal. 2. The marriage between the appellant and the respondent was solemnised on 13-2-2006. Out of their wedlock, a son was born. After 7-8 days of the marriage, the respondent left the matrimonial home and started living with in her parental home. After two months, she returned back and started quarreling with the appellant and other family members. She always used to insist the appellant to start living with her parents at her parental home. When the appellant refused to do so, she left the matrimonial home on 27-11-2007 and started living with her parents. Even after repeated efforts of the appellant, she did not return. The appellant then filed application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights in which a decree was passed in favour of the appellant. Even after passing of the decree for restitution of conjugal rights, the respondent did not turn up to stay with the appellant; in the circumstances, the appellant had filed an application for divorce. Before the Trial Court, the respondent remained ex parte. The Trial Court on the basis of unrebutted evidence led by the appellant granted him the decree of divorce on the ground of desertion and cruelty. While granting decree of divorce, the Trial Court awarded maintenance of Rs. 4,000/- per month to the wife and her son. Feeling aggrieved by this part of the decree, the appellant has filed this appeal. 3. The only contention of the learned Counsel for the appellant is that the learned Trial Court while passing of the decree of divorce could not have granted the relief of permanent alimony to the wife, without there being any application on her behalf in that regard. On the other hand, learned Counsel for the respondent argued that it was not necessary for the respondent/wife to have filed application for the purpose. 4. In order to appreciate the contentions raised by the learned Counsel for the parties, it would be appropriate to extract Section 25 of the Hindu marriage Act, on the basis of which, the permanent alimony has been ordered by the Trial Court:-- “25. 4. In order to appreciate the contentions raised by the learned Counsel for the parties, it would be appropriate to extract Section 25 of the Hindu marriage Act, on the basis of which, the permanent alimony has been ordered by the Trial Court:-- “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 respondent's own income and other property, if any, the income and other property of the applicant the conduct of the parties and other circumstance of the case, 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. (Emphasis supplied) (2) If the Court is satisfied that there in 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 re-married or, if such party is the wife, that she has not remained chaste, or, if such, party is the husband, that has had asexual intercourse, with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the Court may deem just. 5. Having regard to the aforesaid provision, it is clear that filing an application is the requirement for the Court to grant relief. Admittedly, in the present case, no application, as required under Section 25 has been filed. On the other hand, the respondent remained ex parte before the Trial Court throughout. 6. 5. Having regard to the aforesaid provision, it is clear that filing an application is the requirement for the Court to grant relief. Admittedly, in the present case, no application, as required under Section 25 has been filed. On the other hand, the respondent remained ex parte before the Trial Court throughout. 6. We also find that the question involved in this appeal has already been considered and decided by a Division Bench of this Court in the case of Smt. Chhaya Kshatriya v. Pramod Kumar Kshatriya, 1999 (II) MPJR 82 , as also in the case of Jitbandhan v. Gulab Devi, 1983 MPLJ Short Note 4. In these cases, it has been held by this Court that jurisdiction under Section25 of the Hindu Marriage Act is attracted on an 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 of the Hindu Marriage Act for permanent alimony and maintenance. The Division Bench of this Court in Smt. Chhaya Kshatriya v. Pramod Kumar Kshatriya (supra), has held as under:-- “The nature of controversy, which is determined under Section 25 of the Act is quite different what is done under Section 24 of the Act or for that matter under Section 26 of the Act. Considering the various factors to be taken into consideration and the nature of the case the Court is required to look into, the Legislature has used the words 'on an application made to it for the purpose. 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 depose 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.” 7. Having regard to the aforesaid clear legal position, we are of the view that the learned Trial Court has committed error in passing the decree for grant of maintenance under Section 25 of the Hindu Marriage Act, without there being an application made for the purpose. 8. In the circumstances, the impugned order of the Trial Court pertaining to grant of permanent alimony to the respondent deserves to be and is hereby set aside. No order as to costs.