Ekta Sharma vs Deepak Sharma

The appellant wife has preferred this appeal u/s 28 of Hindu Marriage Act, 1955 challenging the order dated 01.11.2013 passed by the Principal Judge, Family Court, Gwalior in Case No. 25-A/2012 (HMA).

The brief facts just necessary for the decision of this appeal is that the marriage of the appellant and the respondent was solemnized on 10.2.2000 at Gwalior observing the Hindu customs. Appellant had filed a Suit u/s 13B of Hindu Marriage Act, 1955, numbered as 149-A/2006 MHA for a decree of divorce by mutual consent. This application was decided on 17.11.2006 and a decree of divorce was granted.

The appellant filed an application u/s 25 of the Hindu Marriage Act, 1955, on 26.09.2011 for grant of alimony @ 5000/- rupees per month. In this proceeding, an application u/s 151 C.P.C. was filed by the respondent/non-applicant claiming that on the basis of a consent decree their marriage was dissolved. The proceeding u/s 125 C.P.C. pending before the Judicial Magistrate First Class, Ambah, was also rejected on 6.7.2011. In this background, the present petition for alimony is not maintainable. The learned Trial Court after hearing both the parties allowed the application u/s 151 C.P.C. and observed that after five years of the consent decree for divorce, this application has been filed, the consent decree was not challenging within 30 days, hence, this application for maintenance is not tenable.

The applicant/wife has assailed this order on the ground that the order is without jurisdiction, without application of mind and bad in the eyes of law. The applicant/wife has no means of livelihood. Even after a decree of divorce, the wife is entitled to get maintenance, the impugned order of the Family Court is, therefore, without jurisdiction and deserves to be set-aside. It has been prayed to allow this appeal and to grant maintenance.

It is evident that the appellant and the respondent are husband and wife. There was a decree of divorce on mutual agreement. There has been catena of cases in which it has been held that a divorcee wife is entitled to receive maintenance/alimony. (See, Pandit Rao Chiny Vs. Gayabai (2002) II DMC 631 Captain Ramesh Chander Kaushal Vs. Mrs. Veena Kaushal and Others, At the time of consent decree for divorce if at all the applicant/wife has stated that she forego the maintenance, even then, she can claim maintenance because it is a statutory right. It cannot be over looked. There was no lump sum alimony decided at the time of the "consent decree".

The wife cannot bind herself to forego a right of maintenance since it is a statutorily enforceable right. However, if there is a settlement between the parties as regarding settlement of a certain amount and other benefits to be conferred as per the agreement. The Court is not precluded from adjudicating on the enforceability of such agreement between the spouses. In this circumstances, the learned Family Court has a jurisdiction to look into the circumstances under which such an agreement was reached and must arrived at a decision, given the totality of the facts. The case of Ravi Singhal and Others Vs. Manali Singhal and Another, can be profitably referred in this regard.

The words used in Section 25 of the Hindu Marriage Act, 1955, regarding permanent alimony and maintenance " Any Court exercising the jurisdiction under this Act may, at the time of passing any decree............ " undertakes that after the passing of a decree or at any time subsequent thereto, on application made to it for the purpose at any time subsequent thereto an application can be filed for permanent alimony.

For the above reasons, we deem it proper to remand the case to the learned Family Court for decision afresh.

We allow the appeal partially setting aside the impugned order dated 1.11.2013 to remand the case to the Family Court Gwalior with the direction that parties be afforded opportunity to adduce evidence and decide the matter afresh according to law.

The parties are directed to make themselves present before the learned Trial Court on 30.08.2014.

Office is directed to send the record earliest.