Research › Search › Judgment

Rajasthan High Court · body

2023 DIGILAW 1509 (RAJ)

Ritu Sharma v. Rakesh Sharma

2023-08-08

ARUN BHANSALI, RAJENDRA PRAKASH SONI

body2023
ORDER : This appeal is directed against the judgment dated 07.01.2023 passed by the Family Court, Rajsamand, whereby the application filed by the appellant under section 25 of the Hindu Marriage Act, 1955 ('the Act'), has been rejected. 2. The application was filed by the appellant with the submissions that the respondent - husband of the appellant had filed an application under Section 13 of the Act seeking dissolution of marriage at Family Court, Udaipur on 15.01.2015, which came to be transferred to Family Court, Rajsamand. 3. In the said petition, the appellant filed a counter claim and sought restitution of conjugal rights under Section 9 of the Act. The petition filed by the respondent was decided on 12.04.2017, wherein the petition seeking dissolution of marriage was dismissed and the application filed by the appellant seeking restitution of conjugal rights was allowed. 4. It was, inter-alia, claimed that the appellant was married to the respondent, they have a son Harshal and the appellant is living at her parental home at Kankroli since March, 2012. It was further indicated that despite the decree passed by the Family Court under Section 9 of the Act on 12.04.2017, the respondent has not taken her to the matrimonial home and no efforts have been for restitution of conjugal rights. Further submissions were made seeking grant of Rs.50,000/- per month as permanent maintenance and Rs.50,000/- towards cost. 5. The application filed under Section 25 of the Act was contested by the respondent denying all the averments made in the application including the allegation pertaining to the income. 6. Based on the pleadings of the parties, the Family Court framed two issues. On behalf of the appellant, she herself was examined and produced four documents. As the respondent did not comply with the order for grant of interim maintenance, his defence was struck off and his evidence was closed. 7. After hearing the parties, the Family Court analyzed the evidence of parties and came to the conclusion that as the petition seeking dissolution of marriage filed by the respondent under Section 13 of the Act was dismissed on 12.04.2017, in view of the judgment of Hon'ble Supreme Court in Chand Dhawan v. Jawaharlal Dhawan : (1993) 3 SCC 406 , as only in the case of decree of divorce, permanent maintenance can be allowed, dismissed the application filed under Section 25 of the Act. 8. 8. Learned counsel for the appellant made submissions that the judgment impugned is based on a total misinterpretation of judgment in the case of Chand Dhawan (supra), wherein even in a case where a petition under Section 9 of the Act has been accepted, the application under Section 25 of the Act would be maintainable and therefore, the judgment impugned deserves to be set-aside. 9. Reliance was also placed on Rameshchandra Rampratapji Daga v. Rameshwari Rameshchandra Daga : (2005) 2 SCC 33 . 10. Learned counsel for the Respondent attempted to make submissions that the appellant is not entitled to maintain the application under Section 25 of the Act as the marriage between the parties subsists and her only remedy is under section 18 of the Hindu Adoptions and Maintenance Act, 1956 ('the Act of 1956') and therefore, the Family Court was justified in rejecting the application. It was prayed that the appeal be dismissed. 11. We have considered the submissions made by learned counsel for the parties and have perused the material available on record. 12. The facts are undisputed, wherein the respondent - husband filed proceedings seeking dissolution of marriage under Section 13 of the Act, wherein by way of counter claim the appellant filed proceedings under Section 9 of the Act seeking restitution of conjugal rights. While the petition filed by the respondent - husband came to be dismissed, the petition filed by the appellant - wife seeking restitution of conjugal rights came to be decreed by the Family Court by judgment dated 12.04.2017. It is also not in dispute that the decree for restitution of conjugal rights remains un-executed as the respondent is not prepared to keep the appellant and their son with him. 13. The Family Court while considering the application after analyzing the evidence abruptly after referring the judgment in the case of Chand Dhawan (supra) rejected the petition seeking permanent maintenance without even referring to the relevant part of the judgment. 14. The dismissal of the proceedings under Section 25 of the Act only on the ground that once the proceedings for dissolution of marriage have been dismissed, proceedings under Section 25 of the Act are non-maintainable, is a result of total misreading of judgment in the case of Chand Dhawan (supra). 15. The relevant part of the judgment, which deals with the present circumstances, inter-alia, reads as under :- 23. ...... ...... 15. The relevant part of the judgment, which deals with the present circumstances, inter-alia, reads as under :- 23. ...... ...... ..... 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 chance 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." (emphasis supplied) 16. 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." (emphasis supplied) 16. A bare perusal of the above ratio of the judgment reveals that if claim to permanent maintenance is based on the supposition that her marital status has been affected by passing a decree for restitution of conjugal rights in her favour, the court can invoke its ancillary or incidental power to grant permanent maintenance. As in the present case, admittedly, the decree for restitution of conjugal rights has been passed by the Family Court in favour of the appellant, she is entitled to maintain proceedings under Section 25 of the Act. 17. In the case of Rameshchandra Rampratapji Daga (supra), the Hon'ble Supreme Court laid down that even in a case where marriage has been declared null and void under Section 11 of the Act, permanent maintenance can be granted to a spouse as the words 'any decree' in sub-section (1) of Section 25 includes all kinds of decrees such as those contemplated under Sections 9, 10, 11, 12 & 13 of the Act. 18. So far as the plea raised by learned counsel for the respondent that the appellant can only seek maintenance under Section 18 of the Act of 1956 is concerned, the said argument has been noticed only for rejection as once the application under Section 25 is maintainable, the choice lies with the applicant as to whether she approaches the Court under Section 25 of the Act or Section 18 of the Act of 1956. 19. In view of the above discussion, the appeal is allowed. The judgment and decree dated 07.01.2023 passed by the Family Court, Rajsamand is quashed and set-aside. The matter is remanded back to the Family Court, Rajsamand to hear and decide the petition on merits. As the matter has already remained pending for over six years with the said Court and the respondent-husband has not paid any interim maintenance, the Family Court is directed to decide the matter, after hearing both the parties, within a period of two months, from the date the parties appear before the Family Court. 20. As the matter has already remained pending for over six years with the said Court and the respondent-husband has not paid any interim maintenance, the Family Court is directed to decide the matter, after hearing both the parties, within a period of two months, from the date the parties appear before the Family Court. 20. The parties are directed to appear before the Family Court, in the first instance, on 11.09.2023.