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2013 DIGILAW 658 (MP)

Vishnu S/o Laxman Gayari v. Durga Bai

2013-05-17

S.C.SHARMA, SHANTANU KEMKAR

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JUDGMENT : Shantanu Kemkar, J. :- This appeal under section 28 of the Hindu Marriage Act, 1955 (for short 'the Act') is directed against the order dated 23-4-2007 passed by the 1st Additional District Judge, Mandsaur in Hindu Marriage Case No. 80/2006 whereby, the petition filed by the appellant/husband under section 9 of the Act for grant of decree for restitution of conjugal rights has been dismissed as withdrawn but, he has been directed to pay Rs. 1500/- p.m. as permanent alimony to the respondent/wife and to pay Rs. 500/- p.m. for maintenance of the minor daughter. 2. The facts necessary for disposal of this appeal stated in brief are that the appellant/husband filed a petition under section 9 of the Act praying for a decree of restitution of conjugal rights on the ground that the respondent/wife has deserted him without reasonable excuse. The petition was resisted by the respondent. During the pendency of the proceedings, the respondent filed an application on 7-11-2006 under section 27 of the Act for return of the articles. On 15-12-2006 the appellant filed an application for withdrawal of the petition for restitution of conjugal rights. The trial Court instead of passing any order on the said application adjourned the case. Thereafter on 17-1-2007 the respondent filed an application under section 25 of the Act claiming permanent alimony. The trial Court again adjourned the case and fixed it for arguments on the said applications. Again on 6-2-2007 the respondent filed an application under section 26 of the Act claiming maintenance for minor child. All the applications were listed for hearing and finally decided by the impugned order dated 23-4-2007. 3. By the said final order dated 23-4-2007 the learned trial Court allowed the appellant's application seeking withdrawal of the petition for restitution of conjugal rights but, at the same time, also allowed the application filed by the respondent/wife for permanent alimony for herself and the application for maintenance for the minor daughter and directed the appellant to pay the amount under both counts as aforesaid. Feeling aggrieved by the part of the order, the appellant has filed this appeal. 4. Feeling aggrieved by the part of the order, the appellant has filed this appeal. 4. Shri Harish Joshi, learned counsel for the appellant argued that when the trial Court had allowed the application of the appellant for withdrawal of the petition and the petition was dismissed as withdrawn, the permanent alimony under section 25 and maintenance to the minor under section 26 of the Act could not have been granted by the trial Court. 5. On the other hand, learned counsel for the respondent has supported the impugned order and has justified the order passed by the learned trial Court. He argued that there is no prohibition to order for permanent alimony to the wife and maintenance to the child even when the petition is dismissed as withdrawn. 6. The Supreme Court had occasion to consider almost identical issue so far as relating to section 25 of the Act in the case of Chand Dhawan (Smt.) vs. Jawaharlal Dhawan, 1994 MPLJ (S.C.) 1 = 1993(3) SCC 406 . The Supreme Court held as under :- "The Hindu Marriage Act preserved the right of permanent maintenance in favour of the husband or the wife, as the case may be, dependent on the Court passing a decree of the kind as envisaged under sections 9 to 14 of the Act. When by Court intervention under the Hindu Marriage Act, affectation or disruption to the marital status has come by, at that juncture, while passing the decree, it has the power to grant permanent alimony or maintenance, if that power is invoked at that time. It also retains the power subsequently to be invoked on application by a party entitled to relief. And such order, in all events, remains within the jurisdiction of that Court, to be altered or modified as future situations may warrant. Without the marital status being affected or disrupted by the matrimonial Court under the Hindu Marriage Act the claim of permanent alimony was not to be valid as ancillary or incidental to such affection or disruption. The matrimonial Court, a Court of special jurisdiction, is not meant to pronounce upon a claim of maintenance without having to go into the exercise of passing a decree, which implies that unless it goes onwards, moves or leads through, to affect or disrupt the marital status between the parties. The matrimonial Court, a Court of special jurisdiction, is not meant to pronounce upon a claim of maintenance without having to go into the exercise of passing a decree, which implies that unless it goes onwards, moves or leads through, to affect or disrupt the marital status between the parties. By rejecting a claim, the matrimonial Court does make an appealable decree in terms of section 28, but that neither affects nor disrupts the marriage. It certainly does not pass a decree in terms of section 25 for its decision has not moved or done anything towards, or led through, to disturb the marriage, or to confer or take away any legal character or status." 7. In the case of Ramesh Chandra Rampratapji Daga vs. Rameshwari Ramesh Chandra Daga, AIR 2005 SC 422 in paragraphs 14 and 17 the Supreme Court has held as under :- 14. Section 25 of the Hindu Marriage Act confers jurisdiction on the Matrimonial Court to grant permanent alimony and maintenance to either of the spouses 'at the time of passing of any decree' or 'at any time subsequent thereto.' Section 25 which arises for interpretation in the husband's appeal 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 respondent's 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, 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. (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 remained chaste, or, if such party is the husband, that he has had sexual 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." 17. In interpreting the provision of section 25 in the case of Chand Dhawan (supra) the Supreme Court categorically held that the expression 'at the time of passing of any decree,' as has been used in section 25, includes a decree of nullity of marriage. The relevant observations read thus :- "On the other hand, under the Hindu Marriage Act, in contrast, her claim for maintenance pendente lite is durated (sic) on the pendency of a litigation of the kind envisaged under sections 9 to 14 of the Hindu Marriage Act, and her claim to permanent maintenance or alimony is based on the supposition that either her marital status has been strained or affected by passing a decree for restitution of conjugal rights or judicial separation in favour or against her, or her marriage stands dissolved by a decree of nullity or divorce, with or without her consent. Thus when her marital status is to be affected or disrupted the Court does so by passing a decree for or against her. On or at the time of the happening of that event, the Court being seisin of the matter, invokes its ancillary or incidental power to grant permanent alimony. Not only that, the Court retains the jurisdiction at subsequent stages to fulfil this incidental or ancillary obligation when moved by an application on that behalf by a party entitled to relief. The Court further retains the power to change or alter the order in view of the changed circumstances. Thus the whole exercise is within the gammit (sic gamut) of a diseased or a broken marriage. The Court further retains the power to change or alter the order in view of the changed circumstances. Thus the whole exercise is within the gammit (sic gamut) of a diseased or a broken marriage. And in order to avoid conflict of perceptions the legislature while codifying the Hindu Marriage Act preserved the right of permanent maintenance in favour of the husband or the wife, as the case may be, dependent on the Court passing a decree of the kind as envisaged under sections 9 to 14 of the Act. In other words without the marital status being affected or disrupted by the matrimonial Court under the Hindu Marriage Act the claim of permanent alimony was not to be valid as ancillary or incidental to such affectation or disruption. The wife's claim to maintenance necessarily has then to be agitated under the Hindu Adoptions and Maintenance Act, 1956 which is a legislative measure later in point of time than the Hindu Marriage Act, 1955, though part of the same socio-legal scheme revolutionizing the law applicable to Hindus. We have thus, in this light, no hesitation in coming to the view that when by Court intervention under the Hindu Marriage Act, affectation or disruption to the marital status has come by, at that juncture, while passing the decree, it undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at that time. It also retains the power subsequently to be invoked on application by a party entitled to relief. And such order, in all events, remains within the jurisdiction of that Court, to be altered or modified as future situations may warrant." 8. This Court in the case of Badri Prasad vs. Urmila Mahobiya, 2001(2) MPLJ 631 = AIR 2001 MP 106 after considering the law laid down by the Supreme Court in the case of Chand Dhawan (Smt) vs. Jawaharlal Dhawan (supra) has held that an order for permanent alimony or maintenance can only be made when a decree granting substantive relief is passed. The relief of permanent alimony cannot be given where the main petition for relief under the Hindu Marriage Act such as divorce is dismissed or withdrawn. As there was no disruption of the marital status between the parties, Court cannot pass an order granting permanent alimony. The relief of permanent alimony cannot be given where the main petition for relief under the Hindu Marriage Act such as divorce is dismissed or withdrawn. As there was no disruption of the marital status between the parties, Court cannot pass an order granting permanent alimony. The same view has been reiterated in the case of Shyamlal Meena vs. Smt. Durgabai Meena, 2008(3) MPHT527. 9. As would be clear in the present case also no decree has been passed, on the other hand the petition for grant of decree for restitution of conjugal rights has been dismissed as withdrawn. In the circumstances, the learned trial Court has committed error in granting permanent alimony under section 25 in favour of respondent/wife while dismissing the petition filed by the appellant/husband for restitution of conjugal rights, as withdrawn. 10. Likewise so far as the order for grant of maintenance by invoking the provision of section 26 of the Act to the minor child is concerned the same is also not sustainable for the reasons stated above regarding unsustainability of the order for permanent alimony under section 25 of the Act as in the present case, no decree has been passed by the trial Court and the petition for restitution of conjugal rights filed under section 9 of the Act has been dismissed as withdrawn. 11. Having regard to the aforesaid, the impugned order passed by the trial Court so far as it relates to grant of permanent alimony and maintenance to the child is liable to be and is hereby set aside. The appeal is allowed to the extent indicated above. Parties to bear their own costs. Appeal allowed.