Saturday, 16 January 2021

Whether court can grant permanent alimony to wife on her oral prayer?

 With regard to question under consideration before this

court, various other High Courts including this High Court have

held that the word ‘application’ as referred to in Section 25 of the

Act i.e. 'on application made to it' does not specify as to whether it

is oral application or application in writing. It is also held that

broader view of Section 25 of the Act is to be taken considering the

object and purpose for inclusion of this provision in the Act.

9. The Madras High Court in the case of Umarani Vs. D.

Vivekannandan reported in 2000 SCC Online Mad 50 held that

there is no need of written application under Section 25 of the

Hindu Marriage Act, 1955 and permanent alimony and maintenance

can be granted on the basis of oral application. The relevant para

No. 10 in this judgment reads thus :

“10. It is true that Section 25 of the Act

contemplates an application for the said purpose.

When the lower court has not disposed of Section

24 application in time and has disposed of along

with the main application, it should have disposed

of the application under Section 25 also.

Therefore, one more litigation could be avoided

and on the basis of very same order, the

maintenance could be provided for the wife and

child. From the conduct of the respondent, it is

clear that he will not pay the maintenance which is

legally due to the petitioner. Under these

circumstances, asking the petitioner to file another

application under Section 25 or asking to file a

separate suit and again seeking indulgence of the

Court below will be harsh. The Act also does not

say that there should a written application. It only

says that an application made to it. It can also be

on the basis of oral application.........”

For the reasons aforestated, in the opinion of this Court,

the ‘application’ as referred to in Section 25 of the Act implies any

application either in writing or oral for the prayer of permanent

alimony and maintenance. The mode and form of the application

u/s 25 of the Act for claiming permanent alimony is immaterial.

What is essential is the material before the court to decide the same.

The court cannot pass any order of permanent alimony and

maintenance in vacuum. The court has to consider the parameters

as guided in the provision itself. The relief is incidental in nature

and it is not the substantive relief.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

SECOND APPEAL NO. 125 OF 2019

Vijayashree Ganesh Ingle, Vs Dr. Nishant Arvind Kale,


CORAM : PUSHPA V. GANEDIWALA, J.

DATED : JANUARY 08, 2021.


Heard Shri R.L. Khapre, learned Senior counsel for the

appellant and Shri Onkar Ghare, learned counsel for the

respondent.

2. This appeal challenges the judgment and decree in

R.C.A. No. 33/2018 dated 07/12/2018 passed by the Ad-hoc

District Judge-1, Khamgaon, Dist. Buldhana which dismissed the

appeal and confirmed the judgment and decree dated 20/12/2017

in H.M.P. No. 78/2017, passed the Court of Civil Judge, Senior

Division, Khamgaon which failed to consider the prayer for

permanent alimony of the appellant-wife while decreeing divorce by

mutual consent.

3. This Court admitted the appeal on the following

substantial questions of law :

(i) Whether it is necessary for the wife to

file application in writing to grant permanent

alimony under Section 25 of the Hindu

Marriage Act, 1955?

(ii) Whether wife can claim maintenance

under Section 25 of the Hindu Marriage Act,

1955, as she is divorcee, after passing the

decree of divorce ?

4. With regard to the substantial questions of law at serial

No. 2, both the learned counsel are at consensus that Section 25 of

the Act does permit the divorcee spouse to claim maintenance from

the other spouse even subsequent to the passing of the decree of

divorce, subject to certain conditions specified therein. Hence, there

is no need to discuss on this question. For ready reference text of

Section 25 of the Act is reproduced below:


“25. Permanent alimony and maintenance :

1) Any court 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 and support such gross sum or such

monthly or periodical sum for a term not

exceeding the life of the applicant as, having

regard to the respondent's 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.

3) If the court is satisfied that the party in

whose favour an order has been made under this

section has re-married 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.]”

5. Before adverting to answer the first substantial

question of law, it would be necessary to have a glance at the

facts leading to filing of this appeal. The marriage between the

parties was solemnized on 25/03/2016. Since there was

matrimonial disharmony and differences between the parties

they moved a joint petition for divorce by mutual consent under


Section 13B of the Hindu Marriage Act, 1955 (hereinafter

referred to as “the Act”). The Court of Civil Judge, Senior

Division, Khamgaon dissolved the marriage between the parties

by recording its satisfaction that the parties have not been able

to live together. It is the grievance of the appellant / wife that

both the courts below have failed to consider her prayer for

permanent alimony under Section 25 of the Act.

6. It is the contention of learned counsel for the appellant

that the appellant did not give up her right of permanent alimony

and maintenance. The appellant in her affidavit before the trial

Court has specifically stated that the respondent is serving as a

Medical Officer in Government Hospital at Murtizapur Dist. Akola

and drawing the salary of Rs. 80,000/- per month and is also having

a private practice and earning more than Rs. 1.00 lakh per month

from the same. He has also an irrigated land and earns more than

20 lakhs per month. It is further stated that at the time of passing

of the mutual consent divorce decree, it was prayed before the

Court to grant a permanent alimony to the appellant under Section

25 of the Act. The Court failed to consider the prayer for want of

application in writing and thereby rejected her prayer for

permanent alimony.

7. In first appeal before the District Judge, Khamgaon the

first appellate Court granted interim maintenance at the rate of Rs.

2000/- per month under Section 24 of the Act pending the decision

of the appeal. However, the first appellate Court refused to grant

permanent alimony u/s 25 of the Act and dismissed the appeal for

want of relationship of marriage subsisting between the parties.

8. With regard to question under consideration before this

court, various other High Courts including this High Court have

held that the word ‘application’ as referred to in Section 25 of the

Act i.e. 'on application made to it' does not specify as to whether it

is oral application or application in writing. It is also held that

broader view of Section 25 of the Act is to be taken considering the

object and purpose for inclusion of this provision in the Act.

9. The Madras High Court in the case of Umarani Vs. D.

Vivekannandan reported in 2000 SCC Online Mad 50 held that

there is no need of written application under Section 25 of the

Hindu Marriage Act, 1955 and permanent alimony and maintenance

can be granted on the basis of oral application. The relevant para

No. 10 in this judgment reads thus :

“10. It is true that Section 25 of the Act

contemplates an application for the said purpose.

When the lower court has not disposed of Section

24 application in time and has disposed of along

with the main application, it should have disposed

of the application under Section 25 also.

Therefore, one more litigation could be avoided

and on the basis of very same order, the

maintenance could be provided for the wife and

child. From the conduct of the respondent, it is

clear that he will not pay the maintenance which is

legally due to the petitioner. Under these

circumstances, asking the petitioner to file another

application under Section 25 or asking to file a

separate suit and again seeking indulgence of the

Court below will be harsh. The Act also does not

say that there should a written application. It only

says that an application made to it. It can also be

on the basis of oral application.........”

10. The Madhya Pradesh High Court in the case of

Surajmal Ramchandra Khati Vs. Rukminibai d/o Prabhulal reported

in 1999 SCC Online MP 87 held that merely because wife had not

presented a separate application praying for grant of permanent

alimony, it cannot be said that she is not entitled to the same. It is

further observed that the provisions of Section 25 of the Act have

been introduced for the purpose of protecting the interest of such

spouse against whom the court has passed the decree.

11. This Court in the case of Sadanand Sahadev Rawool Vs.

Sulochana Sadanand Rawool reported in 1989 SCC Online Bom 5

held that Section 25 of the Act when it speaks of an application does

not specify that the same has to be in writing. An application can be


in writing as also by word of mouth. Although this judgment is

overruled by the Apex Court on the point of entitlement of the

spouse to claim permanent alimony and maintenance even if the the

court dismisses the petition and does not pass any decree as

contemplated in Section 25 of the Act.

12. The Division Bench of the Punjab and Haryana High

Court in the case of Mukesh Kumar Vs. Sunita in FAO-M-46 OF

2010 while relying on the judgment in the case of Sadanand Rawool

(supra) and Surajmal (supra) held that the approach to be adopted

in matrimonial cases has to be practical and not based on mere

technicalities. The expression “on application made to it” occurring

in Section 25 of the Act should not be construed narrowly but

keeping in view the intent of the legislature in enacting this

provision. The purpose behind this provision appears to be to

safeguard the interest of the spouse against whom the decree had

been passed. It is further held that grant of permanent alimony and

maintenance under Section 25 of the Act is sine-qua-non if the

prayer made in that regard whether in writing or orally and there

can either be a separate written application claiming permanent

alimony and maintenance under Section 25 of the Act or in the

written statement or even by oral prayer.”


13. The learned trial Court, in the case in hand, rejected

her prayer for permanent alimony for want of separate application

in writing to that effect. As per Section 25 of the Act, the court

exercising jurisdiction under the Act, while passing decree under the

Act or subsequent thereto, on application being made to it, pass an

order for permanent alimony, having regard to the respondent's 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.

14. It would be apposite here to have a glance at the

procedure for passing the decree of divorce by mutual consent by

the trial court u/s 13B of the Act. Both parties have to move a joint

petition before court stating therein that they are residing separately

for a period of one year or more and they have not been able to

reside together and they have mutually agreed that the marriage

should be dissolved. The court registers the case and keep the

matter pending for second motion by the parties after six month or

more but not later than 18 months, if the case is not withdrawn in

the meantime. After six months or more but not later than 18

months, on the motion of both the parties, the court shall, on being

satisfied, after hearing the parties and after making such enquiries

as it deems fit, that a marriage has been solemnized and that the

averments in the petition are true, pass a decree of divorce by

mutual consent.

15. In terms of section 25 of the Act, for granting the relief

of permanent alimony, the court has to consider the respondent's

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.

16. In the cases of decree of restitution of conjugal rights,

decree of judicial separation, decree of nullity of marriage and

decree of divorce u/s 13 of the Act, it would be very easy for the

court to consider the aforementioned parameters for passing the

order for permanent alimony at the time of passing the decree even

by oral prayer made to it, as the court had an opportunity to

observe the conduct of the parties, to examine the oral and

documentary evidence before the court with regard to the financial

stability of the parties and other attending circumstances between

the parties.

17. However, in case of decree by mutual consent, if a relief for

permanent alimony is sought by one of the parties, there is no

occasion for the court to observe the conduct of the parties, to

examine their financial stability and other circumstances of the case

to pass any order of permanent alimony at the time of passing of

decree of divorce by mutual consent. In such cases, the party

claiming the right of permanent alimony , must bring before the

court the financial status of other side and other relevant

circumstances for consideration of the court. The question of mode

and manner of application is immaterial. What is essential, the

court should be able to comprehend the financial position and

conduct of both the parties to pass any order of permanent alimony,

though the relief is incidental to the main relief.

18. In the case in hand, undisputedly, the appellant

narrated the financial status of the respondent husband in her

affidavit before the court and she prayed to keep open the issue of

permanent alimony for its consideration later on. The trial court

could have postponed the passing of decree of mutual consent on

later date and could have granted opportunity of hearing to both

the sides on the issue of permanent alimony and decided the issue

of permanent alimony and divorce by mutual consent


simultaneously or alternatively could have kept open the question of

permanent alimony to be decided on later date and could have

passed the decree of divorce by mutual consent by keeping the

petition pending. There is absolutely no hurdle in passing two

judgments in a case.

19. In her affidavit the appellant has sufficiently narrated the

financial means and sources available with the respondent –

husband. Yet the learned trial Court ignored the same and

emphasised on technicality.

20. Surprisingly, the first appellate Court too without

reading the provision dismissed the appeal on a misplaced ground

that as the marital tie between the couple does not subsist, the

petitioner is not entitled for maintenance. While, the first appellate

Court in paragraph No. 9 has observed that the Court has discretion

for grant of permanent alimony at the time of passing the decree or

at any time subsequent thereto. The relevant part of appeal is

reproduced below :

“9.......... There is no quarrel that, the Court

exercising jurisdiction under the Hindu Marriage

Act, has discretion at the time of passing any

decree or at any time subsequent thereto, to grant

permanent alimony to one party by the other,

having regard to the various factors as stated in

the said provision of Section 25(1).”


21. In spite of above, it is very shocking that the prayer for

permanent alimony to the appellant was not considered in

accordance with law. The appellate court not only failed to read the

bare text of the provision but also failed to rely on any authority of

the higher courts before reaching the said conclusion. Given the

circumstances, the judgment and decree of the appellate court

needs to be set aside.

22. For the reasons aforestated, in the opinion of this Court,

the ‘application’ as referred to in Section 25 of the Act implies any

application either in writing or oral for the prayer of permanent

alimony and maintenance. The mode and form of the application

u/s 25 of the Act for claiming permanent alimony is immaterial.

What is essential is the material before the court to decide the same.

The court cannot pass any order of permanent alimony and

maintenance in vacuum. The court has to consider the parameters

as guided in the provision itself. The relief is incidental in nature

and it is not the substantive relief.

23. As the issue of permanent alimony has not been

decided by the trial Court, it would be appropriate to remand the

matter for deciding the same in accordance with law and

accordingly, the matter is remanded to the trial court. Parties to

appear before the trial court on 15.02.2021. I answer the substantial

questions accordingly.

24. Needless to say that the trial Court shall decide the

issue of permanent alimony on its own merits in accordance with

law without getting influenced by any of the above observations of

this Court.

25. With the above directions, the second appeal is allowed

with costs and disposed of accordingly.


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