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2017 DIGILAW 1445 (GAU)

Khitish Debnath v. Bithi Debnath

2017-11-16

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT : Ajit Singh, J. 1. This appeal is by the husband, whose petition for divorce against respondent-wife, has been dismissed vide impugned judgment and decree dated 1.10.2015 passed in Title Suit (M) No.7/2010 by the Additional District Judge No.2, (FTC) at Tinsukia. By the impugned judgment and decree, the husband has also been ordered to pay Rs.10,000/- per month as maintenance allowance to wife, or in the alternative, Rs.10,00,000/- as permanent alimony. 2. The husband was married on 15.2.2006 to wife whereafter, she gave birth to a girl child. According to the husband, wife treated him with cruelty and even left his company without any sufficient cause. On these grounds, he filed a petition for divorce under Section 13 of the Hindu Marriage Act, 1956 against wife. The wife, in reply, denied both the grounds of cruelty and desertion and prayed for dismissal of petition for divorce. She, however, did not seek any relief for maintenance allowance or permanent alimony. 3. The trial court, on the basis of pleadings, framed the following issues :- (i) Whether the petitioner was subjected to cruelty by the respondent? (ii) Whether the respondent voluntarily left the company of the petitioner and without any reasonable ground has refused to continue to live with the petitioner? (iii) Whether the petitioner is entitled to get decree as prayed for? (iv) To what other relief/reliefs the parties are entitled to? 4. The trial court then, after appreciating the evidence brought on record, held that neither the ground of cruelty nor of desertion is proved by the husband and by the impugned judgment and decree dismissed his petition. But the trial court directed the appellant to pay Rs.10,000/- per month as maintenance allowance, or in the alternative, Rs.10,00,000/- towards permanent alimony to wife. Aggrieved with the judgment and decree, the appellant has filed the present appeal. 5. During the course of arguments, the learned counsel for the appellant did not press the appeal for a decree of divorce and expressed satisfaction with the findings of the trial court rejecting both the grounds of cruelty and desertion against wife. The learned counsel however vehemently argued that once the trial court dismissed the divorce petition by the impugned judgment and decree, it had no jurisdiction to order either for payment of maintenance allowance or permanent alimony by the husband to wife. The learned counsel however vehemently argued that once the trial court dismissed the divorce petition by the impugned judgment and decree, it had no jurisdiction to order either for payment of maintenance allowance or permanent alimony by the husband to wife. In support of his submission, learned counsel also relied upon the decision of the Supreme Court rendered in Chand Dhawan (Smt.) vs. Jawaharlal Dhawan (1993) 3 SCC 406 . 6. The case of Chand Dhawan (Smt.) vs. Jawaharlal Dhawan (supra) is directly on the point. In this case, the Supreme Court has very clearly settled the legal position that in case of dismissal of petition of the husband under any of the provisions of Sections 9 to 14 of the Hindu Marriage Act, no alimony or maintenance can be granted to wife. 7. We, therefore, having regard to the above referred decision and the statement made on behalf of the appellant, confirm the findings of the trial court insofar as it relates to dismissal of petition for divorce is concerned, but set aside the order directing the appellant to pay Rs.10,000/- per month as maintenance allowance, or in the alternative, Rs.10,00,000/- as permanent alimony to wife. 8. The appeal is partly allowed. The decree be modified accordingly.