Jawahar Lal vs Chand Dhawan

J.V. Gupta, C.J.—This order will also dispose of Civil Revision Petition No. 2998 of 1990, as both of them have arisen out of the same order of the Additional District Judge, Amritsar, whereby on an application u/s 24 of the Hindu Marriage Act (hereinafter called the Act), the wife was allowed Rs. 2,000 as maintenance pendente lite and Rs. 6,000 as litigation expenses.

The controversy between the parties is with regard to the jurisdiction of the Court to grant permanent alimony u/s 25 of the Act in the context of the dismissal of the petition u/s 13B of the Act, for divorce by mutual consent. On August 23, 1985, the petition for dissolution of the marriage by a decree of divorce u/s 13B of the Act was filed in the Court of the Additional District Judge, Amritsar: The said application was dismissed as withdrawn on August 9, 1987, which order reads as under :

"The applicant and the Counsel for the parties have made their statements. As per their statements recorded separately, the main application u/s 13 of the Hindu Marriage Act and also application u/s 24 and u/s 26 of the Act are dismissed as withdrawn. The parties are left to bear their own costs. File be consigned".

It has been stated at the bar and not disputed that after the withdrawal of the said application u/s 13B, the husband filed a petition for divorce against his wife which is pending in the Court at Ghaziabad where the parties are said to have last resided. Meanwhile the wife Smt. Chand Dhawan filed an application u/s 25 of the Act, for permanent alimony. There she also moved an application u/s 24 of the Act for maintenance pendente lite which was allowed as observed earlier. Both the parties feeling aggrieved have filed these two separate petitions. The case has been referred to this Bench by the learned Single Judge because of the divergent judicial opinion expressed by this Court on the question whether an application u/s 25 of the Act, was maintainable when no decree for divorce as such was passed and the petition u/s 13B of the Act, for grant of divorce by mutual consent, was dismissed as withdrawn.

The learned Counsel for the petitioner submitted that the application u/s 25 is only maintainable if a decree has been passed under the Act. According to the learned Counsel, a decree means either a decree for divorce or a decree for restitution of conjugal rights as contemplated from Sections 9 to 13 of the Act. If the petition for divorce etc. is dismissed then no application u/s 25 of the Act is maintainable, as no decree can be said to have been passed In support of the contention, reliance was placed on Sushma v. Satish Chander, (1984) 86 PLR 16; Durga Dass v. Smt. Tara Rani, 1971 P&H 141 (F.B.); Guriant Singh v. Nachhattar Kaur; 1981 ILR 246 (F.B.); Gurcharan Kaur Vs. Ram Chand, ; Sarda Bai v. Shabti Lal, 1989 (1) ILR 110; Ranganatham v. Shyamala, 1990(1) ILR 474 ; Vinod Chandra Sharma Vs. Smt. Rajesh Pathak, and Harcharan Singh v. Nachhattar Singh, (1987) 2 ILR 184=11 (1987) DMC 305.

On the other hand, the learned Counsel for the respondent submitted that the word "decree" In Section 25 of the Act, means the decree-whether dismissing the petition for divorce etc. as such or passing any other decree. According to the learned Counsel, the term "decree" has to be given the same meaning as provided udder the Code of Civil Procedure, (hereinafter called the Code). In support of the contention, the learned Counsel relied upon Smt. Swaran Lata v. Sukhvinder Kumar, 1986(1) HLR 363: (1986) DMC 181 Silla Jagannadha Prashad alias Ramu v. Silla Lalitha Kumari, 1988(1) ILR 26: 1988) DMC 319 (DB) and Manilal Veltj Ganger v. Smt. Bhanumati Manjlal Ganger, 1987 (1) ILR 229: (1987) DMC 205.

As regards this Court, the matter just came up for consideration in Gurcharan Kaur''s case (supra). In paragraph 7 of the judgment, it was observed therein:

"As regards the claim of alimony u/s 25 of the Act, the plain reading of the Section envisages a situation arising after the dissolution of marriage. It was clearly held in Durga Das Vs. Tara Rani, cited by learned Counsel for Gurcharan Kaur that an alimony application u/s 25(1) of the Hindu Marriage Act can be made after grant of a divorce decree".

However, similar point was raised in Smt. Swaran Lata''s case (supra). The above said judgment was not brought to the notice of the learned Single Judge. According to the said judgment, the words "pass any decree" would not mean acceptance of an application under Sections 9 to 13 of the Act but it would also include dismissal of an application under those Sections of the Act. According to the learned Judge some Courts have taken decision under the law as it stood before the amendment of 1976, that the dismissal of an application is not a decree and therefore, on dismissal of an application relief u/s 25 of the Act could not be granted to an unprovided spouse. At that time Section 28 of the Act which provided for appeals from decrees and orders was differently worded. All decrees and orders were made appealable and if dismissal of an application was not to be treated as a decree it could be treated as an order and appeal lay therefrom and thus some distinction on that basis could be made. But after the amendment of 1976 while all decrees have been made appealable u/s 28(1) of the Act, the appealable orders are only those which are passed u/s 25 or 26 of the Act. If dismissal of an application u/s 9 to 13 of the Act is not to be treated as a decree then it won''t be appealable at all under the Act. This anomaly, if any, has been removed by the amendment of 1976 with the result that even dismissal of application under Sections 9 to 13 of the Act are decrees. According to the learned Judge, the amendment has brought the proceedings under Sections 9 to 13 of the Act Pari materia with the proceedings before the civil Court because whether a suit is decreed or dismissed, decree is framed and is appealable as such.

We have heard the learned Counsel for the parties and have also gone through the case law cited at the bar.

The view taken by the learned Judge in Smt. Swaran Lata''s case (supra), is to be overruled. In this respect, we follow the earlier judgment of this Court in Gurcharan Kaur''s case (supra), as well as the judgment of the Delhi High Court in Sushma''s case (supra) where it was held that if the petition succeeds, a decree for restitution of conjugal rights, judicial separation, nullity or divorce has to be passed. But if the petition fails then no decree is passed i.e. the decree is denied to the applicant. Accordingly the words in Section 25 to the effect alimony can be granted when a decree is passed do not operate. That alimony can be granted on a proper construction of the Act only when a decree has been passed. If a decree is refused, then no order for alimony can be passed. The word "decree" is used in matrimonial cases in a special sense different from that in which it is used in the Code. The amendment made in Section 28 of the Act in the year 1976 is of no consequence as regards the interpretation of the words "passing any decree" occurring in Section 25 of the Act. The matter has been discussed in detail in the above-said judgment by the Delhi High Court. In paragraph 11 there of it has been held :

"Having examined the position before the Court from all possible angles, we have no doubt that the power to grant alimony contained in Section 25 of the Act 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 decrees mentioned in Sections 9, 10, 11 and 13 of the Act, and not in other cases".

A part from the above, in the present case, the petition u/s 13B of the Act, seeking divorce by mutual consent, was dismissed as withdrawn. The effect of that would be that there was no petition for divorce by mutual consent as such as the same was dismissing as withdrawn. The seeking of divorce by mutual consent is altogether different from claiming divorce otherwise u/s 13 of the Act. Talking this view, we respectfully differ with the view taken by the Andhra Pradesh High Court in Silla Jagannadha Prasad alias Ramu''s case (supra). As a result, it is held that since the petition u/s 13B of the Act, seeking divorce by mutual consent was dismissed as withdrawn and no final order was passed, the application u/s 25 of the Act, as such was not maintainable. If the application u/s 25 of the Act as such was not maintainable, the question of grant of maintenance u/s 24 of the Act, did not arise. Consequently, this revision petition succeeds. The impugned order is set aside and the application u/s 24 of the Act, is dismissed. Civil Revision Petition No. 2998 of 1990 also fails and is dismissed. No costs.