Gurdeep Singh vs Daljit Kaur

V.K. Jhanji, J.—This appeal is by the husband, directed against judgment dated 1.6.1989 passed by the Additional District Judge, Hoshiarpur, on an application filed by the respondent-wife u/s 25 of the Hindu Marriage Act, directing the appellant to pay maintenance/permanent alimony to his wife, Daljit Kaur.

Gurdeep Singh, appellant herein, filed a divorce petition u/s 13 of the Hindu Marriage Act against his wife, Daljit Kaur. During the pendency of said proceedings, Daljit Kaur filed an application u/s 25 of the Act against her husband alleging that she has got no source of income nor she is guilty of any such conduct which disentitles her to receive maintenance and therefore, she is entitled to claim permanent alimony u/s 25 of the Act at the rate of Rs. 1,000/- per month. Petition u/s 25 of the Act was registered separately by the order of Shri S.K. Chopra, the then Additional District Judge, Hoshiarpur. Before the petition u/s 25 could be decided on merits, petition for divorce was dismissed. Petition u/s 25 of the Act was resisted by the husband on the ground that the same is not maintainable as his wife is already getting maintenance at the rate of Rs. 450/- per month u/s 125, Criminal Procedure Code. On the basis of the pleadings of the parties, the following issues were framed by the learned Additional District judge:

(1) Whether Daljit Kaur is entitled to permanent alimony ? If so, to what extent ?

OPP

Relief.

On the basis of evidence on record, the learned Additional District Judge vide Judgment dated 1.6.1989 decided issue No. 1 in favour of the wife and held the wife to be entitled to one-third share of salary of Gurdeep Singh as maintenance/permanent alimony u/s 25 of the Act. He consequently directed Gurdeep Singh to pay maintenance/permanent alimony at the rate of Rs. 770/- per month from the date of application, i.e. 14.8.1987 and at the rate of Rs. 840/- per month w.e.f. 1.3.1989. The sum of Rs. 450/-per month which was being paid to Daljit Kaur u/s 125, Criminal Procedure Code was ordered to be adjusted from the maintenance/alimony granted by order passed on a petition u/s 25 of the Act. Hence, the present appeal.

In this appeal, it has been contended by Counsel for the appellant that petition u/s 25 of the Act is not maintainable inasmuch as petition u/s 25 is maintainable only if a decree has been passed under the Act. According to the Counsel, petition u/s 13 of the Act was dismissed and no decree as contemplated u/s 13 of the Act was ever passed. It is the contention of the Counsel that if the petition for divorce is dismissed, then no application u/s 25 of the Act is maintainable. Counsel contended that the matter is squarely covered by a judgment of Supreme Court in Smt. Chand Dhawan v. Jawaharlal Dhawan (1993) 2 DMC 110.

A Division Bench of this Court in Jawahar Lal Vs. Chand Dhawan, has held that permanent alimony can be granted only when "decree" is passed. The Court held that power to grant alimony can only be exercised when the Court is faced with the problem of settling the mutual rights of the parties after the matrimonial ties have been determined or varied by the passing of the kind of decree mentioned in Sections 9, 10, 11 and 13 of the Act, and not in other cases. In this regard, reliance was placed on a judgment of the Delhi High Court in Sushma v. Satish Chander AIR 1984 HL 124. Subsequently the Apex Court has affirmed the view taken by a Division Bench of this Court in Jawahar Lal''s case (supra). In view of this binding precedent, the judgment under appeal is to be set aside.

Consequently, this appeal is allowed and the impugned judgment is set aside. However, it is made clear that the maintenance, if any, realised by the respondent pursuant to the judgment under appeal shall not become recoverable and it shall remain open to the respondent to seek her claim of maintenance in accordance with law.