Important judgments on permanent Alimony under S 25 of Hindu Marriage Act and Muslim law

 

1) Whether faithful mistress can be granted permanent alimony?

It is fundamental principle of law that in order to claim a relief from the Court of law, there must be a legal right based on a legal status. When the status of a woman as "wife" is not recognized by provisions of the Act, which confers the right for permanent alimony, she cannot be entertained for grant of relief in the absence of recognition of her status by the Act.

24. For the reasons discussed above, with due respect, it is held that the decisions of the Bombay High Court, upholding right of maintenance to "illegitimate wife" (or "faithful mistress") by liberal construction of word "wife" as contained in section 25 of HM Act, cannot be said to be a good law and are required to be overruled to that extent.

Bombay High Court

Bhausaheb @ Sandu S/O Raghuji ... vs Leelabai W/O Bhausaheb Magar on 7 July, 2003

Equivalent citations: AIR 2004 Bom 283, II (2004) DMC 321, 2003 (4) MhLj 1019

Bench: N Dabholkar, A Naik, N Patil.

https://www.lawweb.in/2012/02/permanent-alimony-under-hindu-marriage.html

2) Whether court can grant permanent maintenance without disruption of Marital status?

The right of permanent maintenance in favour of the husband or the wife is dependent (in the Court passing a degree of the kind envisaged under Ss. 9to 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 ancilliary or incidental to such affectation or disruption.

Supreme Court of India

Smt. Chand Dhawan vs Jawaharlal Dhawan on 11 June, 1993

Equivalent citations: 1993 SCR (3) 954, 1993 SCC (3) 406

Bench: Punchhi

https://www.lawweb.in/2012/11/marital-status-has-to-be-affected-or.html

3) Whether decree for permanent alimony extinguishes with death of husband?

In the matter of Mrs. Aruna Basu Mullick vs. Mrs.
Dorothea Mitra AIR 1983 SC 9164,
 it has been held by the Supreme Court
that a decree for alimony passed under Section 37 of the
Special Marriage Act, 1954 does not extinguish with the
death of the husband/judgment debtor. The assets left
behind by him are liable to be proceeded against in the
hands of his legal heirs for satisfaction of the decree for
maintenance. 

HIGH COURT OF CHHATTISGARH, BILASPUR
FAM No. 103 of 2015
 Arial I Kumar S/o Late Ismail Kumar (Dead) 
V
 Shrimati Shikha Kumar W/o Late Arial I Kumar 
Coram:
Hon'ble Shri Justice Prashant Kumar Mishra
Hon'ble Shri Justice Anil Kumar Shukla
Dated: 07/11/2016
Citation: AIR 2017 Chhatis 7.

https://www.lawweb.in/2017/05/whether-decree-for-permanent-alimony.html

4) Whether permanent alimony can be granted after dismissal of divorce petition?

 In contrast, without affectation or disruption of the marital status, a Hindu wife sustaining` that status can live in separation from her husband, and whether she is living in that state or not, her claim to maintenance stands preserved in codification under section 18(1) of the Hindu Adoptions and Maintenance Act. The court is not at liberty to grant relief of maintenance simplicitor obtainable under one Act in proceedings under the other. As is evident, both the statutes are codified as such and are clear on their subjects and by liberality of interpretation inter-changeability cannot be permitted so as to destroy the distinction on the subject of maintenance."

IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

D.B. Civil Miscellaneous Appeal No. 4700/2016

Decided On: 09.02.2017

Poonam Joshi Vs. Archana Joshi

Hon'ble Judges/Coram:
Navin Sinha, C.J. and Vijay Kumar Vyas, J.
Citation: AIR 2017 Raj 162.

https://www.lawweb.in/2017/12/whether-permanent-alimony-can-be.html

5) Whether wife can initiate proceeding for permanent alimony after decree of divorce?

 In the event the permanent alimony has not been granted probably for the reason that no such application was moved and pressed for, the same can be applied even after passing of the decree. Section 25 of the Act itself envisages that the wife can initiate proceedings for grant of permanent alimony even after the decree of divorce. Therefore, the Court does not become functus officio with the passing of the decree and continues to have jurisdiction to award alimony even thereafter.

IN THE HIGH COURT OF ALLAHABAD

First Appeal No. 402 of 2018

Decided On: 24.05.2018

Poonam Sharma  Vs.  Vishnu Kumar

Hon'ble Judges/Coram:

Pankaj Mithal and Rajiv Joshi, JJ.

 Citation : 2018 (130) ALR 490

https://www.lawweb.in/2018/12/whether-wife-can-initiate-proceeding.html

6) Whether wife can give up right to daughter to get maintenance?

It was certainly open to the wife to give up any claim
so far as maintenance or permanent alimony or stridhan but she
could not have given up the rights which vest in the daughter
insofar as maintenance and other issues are concerned.

We, therefore, exercising our powers under Article 142 of the
Constitution of India, set-aside Clause (6) of the Consent Terms.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.4031-4032 OF 2019

GANESH  Vs  SUDHIRKUMAR SHRIVASTAVA

Dated:APRIL 22, 2019.

https://www.lawweb.in/2019/05/whether-wife-can-give-up-right-to.html

7) Leading Supreme Court Judgment on grant of permanent alimony

In our considered opinion, as has been held by this Court in Chand Dhawan's case (supra), the expression used in the opening part of Section 25 enabling the 'Court exercising jurisdiction under the Act' 'at the time of passing any decree or at any time subsequent thereto' to grant alimony or maintenance cannot be restricted only to, as contended, decree of judicial separation under Section 10 or divorce under Section 13. When the legislature has used such wide expression as 'at the time of passing of any decree,' it encompasses within the expression all kinds of decrees such as restitution of conjugal rights under Section 9, judicial separation under Section 10, declaring marriage as null and void under Section 11, annulment of marriage as voidable under Section 12 and Divorce under Section 13.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1774 and 1775 of 2001

Decided On: 13.12.2004

Rameshchandra Rampratapji Daga Vs. Rameshwari Rameshchandra Daga

Hon'ble Judges/Coram:

D.M. Dharmadhikari and H.K. Sema, JJ.

Citation: (2005) 2 Supreme Court Cases 33 : (AIR 2005 SC 422)

https://www.lawweb.in/2019/07/leading-supreme-court-judgment-on-grant.html

8) Whether former husband of Muslim wife can refuse to pay permanent alimony to her if she remarries after divorce?

(G) When the Family Court makes an order of permanent alimony or for one time payment in the proceedings instituted by the wife for divorce, it is not founded on any stipulation that any part of the sum would be refunded either in whole or in part. Such sum is not granted on the condition against remarriage for all times to come or for any particular period. It is something different from the obligation to her husband to maintain his divorced wife for his life or until remarried. The permanent alimony in a way is an estimated sum in lump sum to discharge the husband from her future liabilities unconditionally.

 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/First Appeal No. 2012 of 2019 and Civil Application No. 1 of 2019 in R/First Appeal No. 2012 of 2019

Decided On: 19.03.2020

 Tarif Rashidbhai Qureshi Vs.  Asmabanu

Hon'ble Judges/Coram:

J.B. Pardiwala and V.B. Mayani, JJ.

Author: J.B. Pardiwala, J.

Citation: MANU/GJ/0734/2020.

https://www.lawweb.in/2020/12/whether-former-husband-of-muslim-wife.html

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

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.

https://www.lawweb.in/2021/01/whether-court-can-grant-permanent.html

10) Whether court can enhance permanent alimony if the court fixed it with the consent of parties?

 wherein it was held that

where the maintenance is fixed by a Court though the basis of it was an agreement, it would come directly under Section 25 of the Act. Thus, a party will be entitled to have an enhancement of

maintenance once such party proves that there has been a material change in the circumstances justifying the enhancement. Therefore, even if agreement relating to the quantum may be a part of the settlement but when the decree passed on adopting the said settlement it becomes the order under Section 25(1) of the Act, as such the Court has statutory jurisdiction under Section 25(2) to direct enhancement of the maintenance with changed circumstances. It was further held that neither the provisions of Section 11 of the CPC nor the principles of res judicata will bar a suit of maintenance on an enhanced rate for a different period under altered circumstances even though on an earlier occasion a maintenance decree has been passed and a certain rate of maintenance had been fixed thereunder. The reason being that such a decree as to the rate of maintenance is not final.

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

CMP No. 8958 of 2019 in FAO (HMA) No. 50 of 2001

Smt. Beasa Devi Vs  Sh. Shiv Dayal 

Coram:

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

Decided on 28.04.2021.

https://www.lawweb.in/2021/05/whether-court-can-enhance-permanent.html

11) Can the court entertain the husband's application for permanent alimony from the wife after the divorce decree?

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.

https://www.lawweb.in/2022/04/can-court-entertain-husbands.html

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