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

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What is distinction between grant of maintenance to wife u/s. 18 of The Hindu Adoption and Maintenance Act, u/s. 25 of The Hindu Marriage Act and u/s. 125 of The Code of Criminal Procedure?

 Maintenance for a wife in India can be sought under various legal provisions, depending on the circumstances and the specific law applicable. The Hindu Adoption and Maintenance Act, the Hindu Marriage Act, and the Code of Criminal Procedure (CrPC) each provide a distinct framework for the grant of maintenance to a wife. Here's a distinction between these three provisions:

1. The Hindu Adoption and Maintenance Act, 1956 (Section 18):

• Applicability: This Act applies to Hindus, including Sikhs, Jains, and Buddhists, and is primarily concerned with maintenance obligations within the family.

• Eligibility: Section 18 of the Hindu Adoption and Maintenance Act primarily deals with the maintenance of a wife by her husband. A wife, who is unable to maintain herself, can seek maintenance from her husband under this provision.

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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.

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

 We have given our thoughtful consideration to the issue and are satisfied to hold that the question whether permanent alimony can be granted or not if the application for divorce itself had been dismissed is no more res-integra and stands decided in MANU/SC/0538/1993 : (1993) 3 SCC 406 (Chand Dhawan (Smt.) Vs. Jawaharlal Dhawan) followed in Ramesh Chandra Rampratapji Daga (supra).

9. In Chand Dhawan (supra) the application for mutual divorce filed under Section 13B of the Act was dismissed. The husband then filed an application for divorce under Section 13 of the Act inter alia on grounds of adultery. The order for maintenance pendente lite not having been complied led to stay of the divorce proceedings till compliance. The wife then filed an application for permanent alimony under Section 25 of the Act. After considering the provisions of Section 25 of the Act and noticing the divergence of views taken by different High Courts it was held as follows:

"25. We have thus, in this light, no hesitation in coming to the view that when by court intervention under the Hindu Marriage Act, affection or disruption to the marital status has come by, at that juncture, while passing the decree, it undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at that time. It also retains the power subsequently to be invoked on application by a party entitled to relief. And such order, in all events, remains within the jurisdiction of that court, to be altered or modified as future situations may warrant. 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

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