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2021 DIGILAW 7 (JK)

Vijay Kumari v. Ashwani Kumar

2021-02-03

PANKAJ MITHAL, RAJNESH OSWAL

body2021
JUDGMENT : Pankaj Mithal, C.J. 1. The wife Smt. Vijay Kumari has preferred this Letters Patent Appeal (LPA) against the order dated 27.07.2020 passed by the learned single Judge rejecting her application for enhancement of permanent alimony in an appeal arising out of the judgment and order of the court of first; instance in a divorce case. 2. The matrimonial dispute between the appellant and her husband Ashwani Kumar came up for consideration in a divorce case. The divorce petition was dismissed whereupon the respondent husband preferred an appeal before the High Court. The appeal was allowed and a consent decree of divorce and a permanent alimony was passed on 27.07.2020 by the learned single Judge. 3. The appellant wife was allowed permanent alimony @ Rs. 1000/- per month. 4. The said judgment and order of the learned single Judge passed with the consent of the parties became final and conclusive as no one challenged it any further, rather the appellant wife started accepting the alimony so fixed. 5. The appellant wife moved an application before the Additional District Judge (Matrimonial Cases), Jammu on 28.07.2010, i.e., after ten years of the decree of divorce, for the enhancement of alimony as envisaged under Section 25 of the Hindu Marriage Act, 1955/Sec-tion 31 of the Jammu and Kashmir Hindu Marriage Act., 1980. 6. The application was rejected as not maintainable as the decree of divorce was passed by the High Court. Accordingly, appellant wife preferred an application under Section 31 of the Jammu and Kashmir Hindu Marriage Act, 1980/Section 25 of the Hindu Marriage Act, 1955 for the enhancement of the alimony before the High Court. The said application has been rejected by the learned single Judge by the order impugned dated 27.07.2020 holding that as the permanent alimony was fixed with the consent of the parties, the same is not liable to be modified and that the provisions of Section 31 (2) of the Jammu and Kashmir Hindu Marriage Act, 1980 would not come in operation as the same are applicable only when the permanent alimony is fixed on merits. In other words, the application was rejected on the ground that it is not maintainable against the consent order. 7. In other words, the application was rejected on the ground that it is not maintainable against the consent order. 7. In this Letters Patent Appeal, two preliminary issues arise, namely; i) Whether the appellant wife is entitled to maintain an application for enhancement of permanent alimony even though the same has been fixed by consent of the parties; ii) Whether the Letters Patent Appeal is maintainable against the order impugned which has been passed by the learned single Judge in exercise of his appellate power. 8. There is no dispute to the fact that the decree of divorce passed vide judgment and order dated 13.10.2000 by the learned single Judge was with the consent of both the parties fixing permanent alimony @ Rs. 1000/- per month. Thus, in the normal circumstances, the said order cannot be challenged any further either by means of an appeal or revision or otherwise. Notwithstanding the above, Section 31 (2) of the Jammu and Kashmir Hindu Marriage Act, 1980 which is in pari materia with Section 25 (2) of Hindu Marriage Act, 1955 provides that if a court is satisfied that there is a change in the circumstances of either party at any time after the order of permanent alimony was made, it may at the instance of the either party, vary, modify or rescind or any such order in such manner as may be deemed just by the court. This provision gives recurring cause of action to either of the parties to the matrimonial dispute to have the order or permanent alimony, varied, modified or rescinded. 9. The aforesaid provision lays down no rider that such power cannot be exercised if the order has been passed earlier with the agreement of the parties. 10. This may be for the reason that the consent given at one point of time may not remain to be an appropriate one with the passage of time and in the changed circumstances and therefore parties be left free to have the order modified or rescinded subject to the satisfaction of the court of the changed circumstances. 11. In a way, the aforesaid statutory provisions empower the parties to get the order fixing the permanent alimony revised subsequently if there is a change in circumstances. 11. In a way, the aforesaid statutory provisions empower the parties to get the order fixing the permanent alimony revised subsequently if there is a change in circumstances. The said entitlement of the parties cannot be taken away merely for the reason that earlier fixation of permanent alimony was by consent as any agreement or consent would not override or do away with the statutory provisions rather would be void. 12. In the case of Smt. P. Archana alias Atchamamba v. Varada Siva Rama Krishna, AIR 2008 (AP) 216 , a similar controversy had come up before the Division Bench of that High Court and it was held that enhancement of maintenance under Section 25 (2) of the Hindu Marriage Act is a substantive right which cannot be denied merely on the ground of earlier agreement of the parties at the time of passing of the divorce decree. The Division Bench further relying upon one another decision of the Division Bench went on to hold that even an agreement by the parties not to seek enhancement in permanent alimony would not debar them from claiming higher rate of maintenance if there was change in the circumstances as it would run contrary to. the statutory provisions. 13. A similar view was expressed by the Himachal Pradesh High Court in the case of Kubja Devi v. Isher Dass, AIR 2017 HP 21 wherein it has been held that the maintenance fixed by the order of the court can be enhanced in changed circumstances under Section 25 (2) of the Hindu Marriage Act and that the principle of estoppel would not be attracted. It was also observed that if the maintenance has been fixed by way of settlement in the compelling circumstances with the passage of time and due to rise in cost of living if the wife is not finding it sufficient to maintain herself, she is entitled to seek enhancement. 14. It is useful to quote Lord Atkin who observed "the Wife's right to future maintenance is a matter of public concern which she cannot barter away". If the aforesaid principle is followed, it is but obvious that no party to the matrimonial dispute even by agreement choose to give up their statutory right for future enhancement/reduction in maintenance and any contract to the contrary would not be valid in the eyes of law. 15. If the aforesaid principle is followed, it is but obvious that no party to the matrimonial dispute even by agreement choose to give up their statutory right for future enhancement/reduction in maintenance and any contract to the contrary would not be valid in the eyes of law. 15. In view of the aforesaid facts and circumstances, we are of the opinion that despite the fact that in the decree of divorce passed by the learned single Judge permanent alimony was fixed with the consent of the parties, the appellant wife, in accordance with the statutory provisions, is entitled to maintain the application seeking its enhancement as contemplated by Section 31 (1) of the Jammu and Kashmir Hindu Marriage Act, 1980/Sec-tion 25 of the Hindu Marriage Act, 1955. 16. Now coming to the second aspect of the matter, whether Letters Patent Appeal would lie against an order passed by the learned single Judge in an appeal before it. 17. Shri Ashwani Thakur, learned counsel for the appellant wife submits that the order impugned is not an order passed in exercise of appellate jurisdiction but an order on the original application of the petitioner. 18. The submission is bereft of merit inasmuch as the learned single Judge had passed the decree of divorce in an appeal arising from a matrimonial dispute decided by the Additional District Judge (Matrimonial Cases). It is in the said appeal that he had fixed the permanent alimony with the consent of the parties. The appellant wife applied for the enhancement of the said permanent alimony, may be by a separate application, but certainly in the appeal arising from the matrimonial dispute. An independent application for the above purpose is otherwise not maintainable. 19. Therefore, the order passed by him which has been impugned herein is an order passed in exercise of appellate jurisdiction. 20. It is well recognized that appeal is not as a matter of right. It is a creation of a statute. The right to appeal against the judgment and order of the single Judge of the High Court has been conferred by Clause 12 of the Letters Patent. The exercise of jurisdiction has to be within the scope of the authority enshrined in the provisions meant for intra court appeal. It is, therefore, imperative to examine the nature of jurisdiction that has been actually conferred by the Letters Patent. 21. The exercise of jurisdiction has to be within the scope of the authority enshrined in the provisions meant for intra court appeal. It is, therefore, imperative to examine the nature of jurisdiction that has been actually conferred by the Letters Patent. 21. Clause 12 of the Letters Patent reads as under:- "And we do further ordain that an appeal shall lie to the said High Court of judicature from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court., and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence of one Judge of the said High Court or one Judge or any Division Court and that notwithstanding anything herein before provided an appeal shall lie to the said High Court from a judgment of "one Judge of the said High Court or one Judge of any Division Court, a consistently with the provisions of the civil procedure code, made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of the Judges of the said High Court or of such division court shall be to us, our Heirs or Successors and be heard by our Board of Judicial Advisers for report to us." 22. A plain reading of the aforesaid clause would reveal that an appeal lies to the High Court of judicature from the judgment of one Judge of the said High Court but not in cases where judgment has been passed in exercise of appellate jurisdiction. 23. In the case before us, the order impugned is a judgment which has been passed by the learned single Judge of this Court in exercise of its appellate power, may be on an independent application. 23. In the case before us, the order impugned is a judgment which has been passed by the learned single Judge of this Court in exercise of its appellate power, may be on an independent application. The said order as such would be a judgment and order passed in exercise of appellate jurisdiction against which appeal would not lie under Clause 12 of the Letters Patent. 24. It is important to refer to Section 100-A, CPC in this regard. It reads as under:- "100-A. No further appeal in certain cases.- Notwithstanding anything contained in any Letters Patent for any High Court or in any instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment and decree of such single Judge." 25. A reading of the aforesaid provision would reveal that where an appeal is decided by a single Judge of the High Court, further appeal against it is barred in law. 26. At the cost of repetition, it is again pointed out that the single Judge had passed the order of permanent alimony which is sought to be revised while exercising power of an appeal in respect of an original decree/order and the order impugned is a consequential order. 27. In view of the above also, no appeal would he against the order impugned. 28. In the light of the discussion hereinabove, we are of the opinion that the present Letters Patent Appeal is not maintainable. It is accordingly dismissed with liberty to the appellant wife to take recourse to any other remedy, may be of applying afresh for the enhancement of permanent alimony, if so advised to her. 29. The appeal is dismissed. No order as to costs.