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2015 DIGILAW 1125 (MP)

Ratiram Yadav v. Vimla Yadav

2015-10-27

C.V.SIRPURKAR, S.K.GANGELE

body2015
ORDER 1. This appeal has been filed by the appellant against the judgment and decree dated 30.9.2008 passed in Hindu Marriage Case No.56-A/2007. 2. The trial Court granted the decree of divorce in favour of the appellant and accepted the application filed by the appellant to this effect, however, trial Court further ordered that the appellant shall pay an amount of Rs.1,00,000/- (Rupees One Lac) as permanent alimony to the respondent on account of dissolution of marriage. 3. The ground taken in the appeal is that the respondent did not file any application before the trial Court under section 25 of Hindu Marriage Act, 1955 for grant of permanent alimony. In the absence of any application filed by the respondent in this regard, the trial Court committed an error of jurisdiction in awarding permanent alimony in favour of the respondent. The same point has been pressed by the learned counsel for the appellant. In support of his contention learned counsel relied on the judgment of this Court passed in the matter of Mahesh Prasad V. Chhoti Bai, reported in 2003(2) MPLJ 560 . 4. The sole question in deciding the present appeal is that whether permanent alimony can be awarded by the trial Court in the absence of application filed by the contesting party in this regard, which is a requirement under section 25 of Hindu Marriage Act, 1955. 5. We have perused the record of the case. There is no application filed on behalf of the respondent in regard to grant of permanent alimony. The trial Court has also not mentioned the fact that whether any application or prayer was made by the respondent in regard to grant of permanent alimony in terms of section 25 of Hindu Marriage Act, 1955 by the respondent. 6. We have also perused the written statement filed by the respondent. There is no prayer in the written statement filed by the respondent in regard to grant of permanent alimony. The Court in the matter of Mahesh Prasad V. Chhoti Bai, reported in 2003(2) MPLJ 560 has held as under : 10. 6. We have also perused the written statement filed by the respondent. There is no prayer in the written statement filed by the respondent in regard to grant of permanent alimony. The Court in the matter of Mahesh Prasad V. Chhoti Bai, reported in 2003(2) MPLJ 560 has held as under : 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. Section 25 of Hindu Marriage Act, 1955 reads as under : 25. Permanent alimony and maintenance. (1) Any count 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 any support such gross sum of such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent 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. 7. In view of the decision pronounced by this Court in the matter of Mahesh Prasad v. Chhoti Bai and section 25 of the Hindu Marriage Act, 1955 in regard to grant of permanent alimony, in our opinion, the Court cannot exercise its jurisdiction in regard to grant of permanent alimony under section 25 of Hindu Marriage Act, 1955 if there is no application in this regard filed by the party or there is no pleading in the written statement. Consequently, the appeal is allowed and the judgment and decree dated 30.9.2008 passed by the trial Court in regard to grant of permanent alimony of Rs.1,00,000/- (Rupees One lac) is hereby set aside. If the appellant had deposited an amount of Rs.50,000/- (Rs.Fifty thousands), as ordered by this Court vide interim order dated 26.11.2008, the same shall be returned back to the appellant. No order as to costs.