The impugned orders are assailed in the backdrop of the common fact that the said orders are not sustainable, since the relationship between the husband and wife is already extinguished by a decree of divorce passed on 17/01/2015.
14. A conjoint reading of both the provisions, would reveal
that both the sections in the Act of 1955 are enabling provisions
and confer a right on the indigent spouse to claim maintenance
either pendente lite or in the nature of permanent alimony and
maintenance.
15. The words applied in Section 25 of the Act of 1955 permit
any court exercising jurisdiction under this Act, i.e. under
Sections 9 to 13, at the time of passing any decree or at any time
subsequent thereto, on an application made to it, by either of the
spouse pay to the applicant for her/his maintenance, either gross
sum or monthly or periodical sums for not exceeding the life of
the applicant, having regard to the income and the other
property, etc. The term used “at any time subsequent thereto”
cannot be made redundant, by giving constricted meaning to the
words “wife or husband”, applied in Section 25 of the Act of
1955 and this can be said so, in the wake of sub-sections (2) and
(3) of Section 25, which empower the court to vary, modify or
rescind the amount of permanent alimony and maintenance as
awarded under sub-section (1) and, on existence of the
circumstances set out in sub-section (3), order granting
permanent alimony and maintenance can be varied and modified
or rescinded as the court may deem just and proper.
Sub-sections (2) and (3) of Section 25 are thus indicative
of the fact that if at the time of decree, an application is made or
at any subsequent time of the passing of the decree, an
application is made, claiming maintenance by either of the
spouse, the court is empowered to grant the claim, which is just
and proper and the payment can be secured if necessary, by
creating charge on the immoveable property of the respondent.
If sub-section (1) is given a restrictive meaning as attempted to
be canvassed by Mr. Thombre, then the words used “at any time
subsequent thereto” would become redundant, which cannot be
the intention of the legislature. The legislature does not use the
words in vacuum and when it specifically permits the exercise of
power of granting permanent alimony and maintenance on the
court exercising jurisdiction under the Act, at the time of passing
of the order or at any time subsequent thereto, it is open for the
court to grant such maintenance at the time of passing the decree
or even subsequent to the decree being passed. The provision
cannot be read to constrict it, if the relationship between the
husband and the wife is severed and as per Mr. Thombre, on
divorce, they no longer remain husband and wife. Section 25 is
not only restricted to a decree of divorce, but the decree can also
be for restitution of conjugal rights under Section 9, the decree
can also be for judicial separation under Section 10 or the decree
can also be for divorce under Section 13 or the decree can also
be for a divorce by mutual consent under Section 13B. In the
contingency other than the one covered by a decree of divorce,
the parties are still husband and wife, when a decree for
restitution of conjugal rights or judicial separation is passed. The
scope of Section 25, therefore, cannot be restricted by holding
that on divorce / dissolution of marriage, the wife or the husband
cannot bring such proceedings.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2527 OF 2021
Bhagyashri w/o. Jagdish Jaiswal Vs. Jagdish S/o. Sajjanlala Jaiswal & Anr.
CORAM : SMT. BHARATI DANGRE, J.
DATED : 26TH FEBRUARY, 2022.
1. The petitioner-wife is aggrieved by the order passed by the
2nd Joint Civil Judge, Senior Division, Nanded, dated 08/08/2017
and also by the order dated 06/12/2019 passed below Exh.-23 in
the very same proceedings. The impugned orders are assailed in
the backdrop of the common fact that the said orders are not
sustainable, since the relationship between the husband and wife
is already extinguished by a decree of divorce passed on
17/01/2015.
2. The marriage between the petitioner and the respondent
was solemnized on 17/04/1992 and, on the wife filing a petition
under Section 13 of the Hindu Marriage Act, 1955 (for short,
“the Act of 1955”) seeking dissolution of marriage on the
ground of cruelty and desertion, the petition was allowed and the
marriage between the parties came to be dissolved on
17/01/2015 by the 2nd Joint Civil Judge, Senior Division,
Nanded. The decree of divorce was directed to be drawn
accordingly.
3. Since I am not concerned with the merits of the said
decree, I do not delve deep into it.
After passing of the decree of divorce, the respondenthusband
filed Hindu Marriage Petition No.46 of 2015 claiming
for grant of permanent alimony from the petitioner-wife at the
rate of Rs. 15,000/- per month. This application being filed
under Section 25 of the 1955 Act, pleaded that since the
marriage being dissolved by a decree of divorce, the application
is filed as the respondent-husband is not having any source of
income and the petitioner-wife, on the contrary had acquired the
educational qualification of M.A., B.Ed. and, on completion of
education, is serving at Shri Datta Mahavidyalaya, Talni, Taluka
Hadgaon. It is specifically pleaded that in order to encourage the
wife to obtain the degree, the husband managed the household
affairs, keeping aside his own ambition. It is pleaded that prior
to her employment, she was taking tuition classes and earning
income for the family. The respondent-husband claims that he
was working with the father of the petitioner-wife at Manatha
and, with the aid and assistance of her parents, he would
contribute some amount for the well being of the family.
4. The respondent-husband pleads that he suffered
humiliation and harassment in the marital relationship as the
petitioner-wife, with a malafide and dishonest intention, filed
petition for divorce, which was decreed. It is specifically
pleaded that the respondent is neither doing any job, nor does he
possess any moveable or immoveable property or has any
independent income. It is also pleaded that he is also not
keeping good health and unable to secure any job for earning his
livelihood. As against this, the petitioner-wife earns a salary of
Rs.30,000/- per month and also possesses valuable household
articles and immoveable properties.
5. In the backdrop of the aforesaid averments in the petition,
the respondent-husband claims maintenance of Rs.15,000/- per
month from the wife, from the date of filing of the petition. The
prayer in the said petition reads as under:
“1. That the respondent may be directed
to pay permanent alimony / maintenance to
the petitioner at the rate of Rs. 15,000/- per
month from the date of filing of this Petition.
2. The charge of maintenance to be created on
the salary of respondent.”
6. In the said marriage petition, an application is filed by the
respondent-husband under Section 24 of the 1955 Act, claiming
maintenance pendente lite, the application being registered as
Exh.-14.
In the said application, interim maintenance, till disposal of
the main proceedings filed by the respondent-husband under
Section 25 of the 1955 Act, claiming permanent alimony /
maintenance, is sought.
7. The claim of the husband was strongly opposed by the
petitioner-wife, by submitting that the husband is running a
grocery shop and he also owns an auto rickshaw and earns
income by leasing out the same. It is denied that the husband is
dependent upon the wife and it is specifically pleaded that there
is a daughter born out of the wed-lock, who is dependent on the
wife and, therefore, the claim of maintenance by the husband is
prayed to be rejected, with costs of Rs.10,000/-.
8. The application filed vide Exh.-14, claiming interim
maintenance, is allowed by the 2nd Joint Civil Judge, Nanded, on
08/08/2017 by the following order:
“The respondent is hereby directed to pay
Rs.3,000/- per month (Rs. Three Thousand
only) to the applicant towards maintenance
pendent lite from the date of application till
disposal of the petition.”
9. While passing the above order, the learned Judge records
that, since the proceedings filed under Section 25 of the Act of
1955 are pending, the application under Section 24 is
maintainable and by relying upon the facts and figures presented
and by recording that whether the applicant-husband is entitled
for claiming permanent alimony from the respondent-wife, will
be decided on merits during trial, the application claiming
interim maintenance, came to be granted.
10. Another order assailed before me, is passed below Exh.-
23, which takes the earlier order passed by the learned Judge on
08/08/2017 forward, in the wake of the request of the respondent
that a warrant for recovery of arrears may be issued against the
petitioner-wife and the amounts due and payable, be deducted
from her salary and deposited before the court.
The application is granted on 06/12/2019, with the
following order:
“1) Issue letter to the Headmaster of Shri
Datta High School, Talni, Tq. Hadgaon, Dist.
Nanded to deduct Rs.5,000/- from monthly
salary of respondent and send said amount to
this court per month till further orders towards
recovery of arrears of maintenance pendent
lite.”
Both the above orders are subject matter of challenge in
the present writ petition.
11. Heard the learned counsel Mr. Tombre for the petitionerwife,
who would submit that since the marriage between the
petitioner and the respondent is dissolved by a decree of divorce,
the proceedings for permanent alimony and maintenance under
Section 25 of the Act of 1955, are not maintainable and by
referring to the wording used in the said section - “husband or
the wife”, the submission advanced is, on dissolution of
marriage, no such application can be entertained. The learned
counsel would further submit that by directing the wife to pay
maintenance to the husband after dissolution of marriage by a
decree of divorce, would amount to traversity of justice and once
the relationship between the husband and wife is severed by a
decree of divorce, there cannot be any claim made by anyone of
them against each other.
Per contra , the learned counsel Mr. Mewana would
submit that the provision contained in Section 25 of the Act of
1955 do not depend upon the outcome of the relationship
subsequent to divorce, since the section use the word “at any
time subsequent thereto” and therefore, the embargo that the
applicant as the husband, after dissolution of marriage cannot
be denied, the benefit flowing from Section 25 of the Act of
1955.
12. At the outset, I must state that the impugned orders have
been passed by the learned judge on an application filed under
Section 24 of the Act of 1955, claiming maintenance pendente
lite. Section 24 of the Act of 1955 reads thus:
24. Maintenance pendente lite and
expenses of proceedings. - Where in any
proceeding under this Act it appears to the
court that either the wife or the husband, as
the case may be, has no independent income
sufficient for her or his support and the
necessary expenses of the proceeding, it may,
on the application of the wife or the husband,
order the respondent to pay to the petitioner
the expenses of the proceeding, and monthly
during the proceeding such sum as, having
regard to the petitioner’s own income and the
income of the respondent, it may seem to the
court to be reasonable:
[Provided that the application for the
payment of the expenses of the proceeding and
such monthly sum during the proceeding,
shall, as far as possible, be disposed of within
sixty days from the date of service of notice on
the wife or the husband, as the case may be.”
By reading of the aforesaid, it is clear that the application
can be filed under Section 24 of the Act of 1955, in the pending
proceedings under the Act and it may cover proceedings under
Section 25 of the Act of 1955 for permanent alimony and
maintenance.
13. Section 25 of the HM Act, which is the provision for
permanent alimony and maintenance, reads thus:
“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 subsection
(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].”
14. A conjoint reading of both the provisions, would reveal
that both the sections in the Act of 1955 are enabling provisions
and confer a right on the indigent spouse to claim maintenance
either pendente lite or in the nature of permanent alimony and
maintenance.
15. The words applied in Section 25 of the Act of 1955 permit
any court exercising jurisdiction under this Act, i.e. under
Sections 9 to 13, at the time of passing any decree or at any time
subsequent thereto, on an application made to it, by either of the
spouse pay to the applicant for her/his maintenance, either gross
sum or monthly or periodical sums for not exceeding the life of
the applicant, having regard to the income and the other
property, etc. The term used “at any time subsequent thereto”
cannot be made redundant, by giving constricted meaning to the
words “wife or husband”, applied in Section 25 of the Act of
1955 and this can be said so, in the wake of sub-sections (2) and
(3) of Section 25, which empower the court to vary, modify or
rescind the amount of permanent alimony and maintenance as
awarded under sub-section (1) and, on existence of the
circumstances set out in sub-section (3), order granting
permanent alimony and maintenance can be varied and modified
or rescinded as the court may deem just and proper.
Sub-sections (2) and (3) of Section 25 are thus indicative
of the fact that if at the time of decree, an application is made or
at any subsequent time of the passing of the decree, an
application is made, claiming maintenance by either of the
spouse, the court is empowered to grant the claim, which is just
and proper and the payment can be secured if necessary, by
creating charge on the immoveable property of the respondent.
If sub-section (1) is given a restrictive meaning as attempted to
be canvassed by Mr. Thombre, then the words used “at any time
subsequent thereto” would become redundant, which cannot be
the intention of the legislature. The legislature does not use the
words in vacuum and when it specifically permits the exercise of
power of granting permanent alimony and maintenance on the
court exercising jurisdiction under the Act, at the time of passing
of the order or at any time subsequent thereto, it is open for the
court to grant such maintenance at the time of passing the decree
or even subsequent to the decree being passed. The provision
cannot be read to constrict it, if the relationship between the
husband and the wife is severed and as per Mr. Thombre, on
divorce, they no longer remain husband and wife. Section 25 is
not only restricted to a decree of divorce, but the decree can also
be for restitution of conjugal rights under Section 9, the decree
can also be for judicial separation under Section 10 or the decree
can also be for divorce under Section 13 or the decree can also
be for a divorce by mutual consent under Section 13B. In the
contingency other than the one covered by a decree of divorce,
the parties are still husband and wife, when a decree for
restitution of conjugal rights or judicial separation is passed. The
scope of Section 25, therefore, cannot be restricted by holding
that on divorce / dissolution of marriage, the wife or the husband
cannot bring such proceedings.
16. The provision of maintenance / permanent alimony being a
beneficial provision for the indigent spouse, the said section can
be invoked by either of the spouse, where a decree of any kind
governed by Sections 9 to 13 has been passed and marriage tie is
broken, disrupted or adversely affected by such decree of the
court. The scope of Section 25 of the Act of 1955 cannot be
constricted by not making it applicable to a decree of divorce
being passed between the husband and wife.
The Hon’ble Apex Court in case of Chand Dhawan v.
Jawaharlal Dhawan (1993) 3 SCC 406 , took note of divergent opinions, in respect of the words applied in Section 25- “at the time of passing any decree or at any time subsequent thereto” and recorded as under:
“6. Right from its inception, at the unamended
stage, the words "at the time of passing any decree
or any time subsequent thereto" posed difficulty.
The majority of the High Courts in the country
took the view that those words indicated that an
order for permanent alimony or maintenance in
favour of the wife or the husband could only be
made when a decree is passed granting any
substantive relief and not where the main petition
itself is dismissed or withdrawn. It was also
gathered that if no request for alimony was made
at the time of passing the decree the same relief
could be sought subsequently on an application.
The relief of permanent alimony was deduced to
be ancillary or incidental to the substantive relief,
and it was given to the party to whom such relief
was due. The expression "any decree" was viewed
to have been used having regard to the various
kinds of decrees such as decree for Restitution of
Conjugal Rights, Judicial Separation, Nullity of
Marriage, and Divorce, which could be passed
either on context or consent.”
17. After referring to the various decisions from the High
Courts, interpreting the aforesaid terminology in paragraph
No.23, the Apex Court has observed as under:
“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 fulfill 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 change" or alter
the order in view of the changed circumstances.
Thus the whole exercise is within the gammit 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; disputed 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.”
18. In the wake of the above observations, since Section 25
has to be looked upon as a provision for destitute wife/husband
the provisions will have to be construed widely so as to salvage
the remedial intailments, the contention of the learned counsel
cannot be accepted and it is open for the court to decide the
application filed by the husband under Section 25 of the 1955
Act, seeking monthly maintenance, by way of final proceedings,
pending which, the application for interim maintenance filed
under Section 24 of the Act of 1955, has been rightly entertained
by the learned Judge and the husband has been held entitled to
interim maintenance while the proceedings under Section 25 are
pending.
19. Both the impugned orders do not warrant any interference
and, by upholding the same, the writ petitions are dismissed.
[SMT. BHARATI DANGRE, J.]
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