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2019 DIGILAW 1727 (ALL)

Om Tiwari v. Shikha Tiwari

2019-07-18

MANOJ MISRA, VIRENDRA KUMAR SRIVASTAVA

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JUDGMENT : 1. We have heard Sri B.D. Shukla for the appellant and have perused the record. 2. The instant appeal has been filed under Section 19 of the Family Courts Act, 1984 challenging the orders dated 02.05.2019 and 02.04.2019 passed by the Additional Principal Judge, Family Court, Court No.2, Kanpur Nagar in Matrimonial Case No.1026 of 2008 filed under Section 13 of the Hindu Marriage Act, 1955. 3. By order dated 02.04.2019, on application of defendant-respondent, an additional issue was framed, that is, "whether the defendant is entitled to permanent alimony". 4. By order dated 02.05.2019, the Application 73-Ga filed by the plaintiff-appellant to strike off the aforesaid issue was rejected. 5. Assailing the orders dated 02.04.2019 and 02.05.2019, the learned counsel for the appellant has urged that the issue relating to entitlement for permanent alimony does not arise from the pleadings of the parties and is to be considered at the time of final decision of the case and, therefore, the same should not be made an issue for adjudication at this stage. He has invited attention of the Court to sub-section (1) of Section 10 of the Family Courts Act, 1894 which provides that subject to the other provisions of the Act and the rules, the provisions of the Code of Civil Procedure, 1908 and of any other law for the time being in force shall apply to the suits and proceedings [other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)] before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a civil court and shall have all the powers of such court. 6. It has been urged that since the issues are to be determined on the basis of the pleadings of the parties, in absence of any pleading in the written statement with regard to permanent alimony, framing additional issue in that regard is not legally justified and, therefore, the court below was not justified in rejecting the application filed by the appellant to strike off the additional issue. 7. We have perused the provisions of the Family Courts Act, 1984 (for short the Act). Sub-section (3) of Section 10 of the Act is of relevance. 7. We have perused the provisions of the Family Courts Act, 1984 (for short the Act). Sub-section (3) of Section 10 of the Act is of relevance. Sub-section (3) of Section 10 of the Act provides as follows:- "(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other." 8. As noticed above, sub-section (3) of Section 10 of the Act enables a Family Court to determine its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other. This power is notwithstanding the provisions contained in sub-sections (1) and (2) of Section 10. 9. As per Section 25 of the Hindu Marriage Act, 1955, the prayer for permanent alimony is to be accorded consideration by the Court 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. There is nothing in Section 25 of the Hindu Marriage Act, 1955 which may suggest that an application for permanent alimony cannot be filed during the suit proceeding. Though, once filed, it is to be addressed at the time of passing the decree or at any time subsequent thereto. Therefore, if any such application is filed, framing an issue in that regard is not prohibited. Though, such issue would have to be addressed at the time of final decision of the petition. Thus, if any such issue has been framed in a divorce petition, it is expected that the Family Court would decide the same at the time of deciding the petition or any time thereafter. 10. In the instant case, the defendant-respondent had filed an application under Section 25 of the Hindu Marriage Act for permanent alimony. Under the circumstances, on her application, that additional issue was framed. 11. 10. In the instant case, the defendant-respondent had filed an application under Section 25 of the Hindu Marriage Act for permanent alimony. Under the circumstances, on her application, that additional issue was framed. 11. As mere framing of an issue does not cause prejudice to any party, rather it enables a party to appropriately address the issue and to lead evidence so that the court could arrive at the truth and appropriately settle the matter, we are of the view that framing such an issue by a Family Court is within its power conferred upon it by sub-section (3) of Section 10 of the Family Courts Act. 12. For the reasons recorded above, we do not find any merit in the submission made by learned counsel for the appellant. The appeal is dismissed.