P. Shankar vs Smt. P. Vasanthi

P. L. N. SARMA, J.—The husband is the appellant in this appeal. Originally he filed O.P. No. 148 of 1984 on the file of the IIIrd Addl. Judge, City Civil Court, Secunderabad seeking divorce on the grounds of cruelty and desertion. Pending the said application, the wife filed I.A. No. 707 of 1992 under S. 25 of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act") seeking permanent alimony. After trial, O.P. No. 148 of 1984, filed by the husband for divorce, was dismissed by the learned trial Judge. In the same judgment, the learned Judge allowed I.A. No. 707 of 1992 filed by the wife and granted a sum of Rs. 700/- per month as permanent alimony both to her (wife) as well as their female child with effect from the date of the order, i.e., 16-7-3992.

The husband filed C.M.A. No. 1062 of 1992 questioning the order of the learned trial Judge dismissing the application filed by him for divorce. We have already dismissed the said appeal by our judgment dated 21-7-1994.

The present C.M.A. is filed against the order passed by the learned Judge in I.A. No. 707 of 1992 granting permanent alimony as mentioned above.

The only ground raised by the learned counsel appearing for the husband-appellant is that the jurisdiction under S. 25 of "the Act" can only be exercised by the Court while granting a decree for divorce, nullity, restitution of conjugal rights and the like and not when the application filed for those reliefs is dismissed by the lower Court. In other words, the contention is that when an application filed seeking reliefs under the provisions of "The Act" is dismissed, no relief can be granted under S. 25 of "The Act" even at the instance of the respondent who succeeded in the proceeding.

In support of the said contention, the learned counsel relied upon, the judgments reported in Ranganatham Vs. Shyamala, ; Sattayya v. Ammannanima (1971) 1 ALT233 ; Minarani Majumdar Vs. Dasarath Majumdar, and Patel Dharamshi Premji Vs. Bai Sakar Kanji, . The judgments reported in Ranganatham v. Shyamala (cited supra) and Minarani v. Dasarath (cited supra) do support the contention of the learned counsel.

On the other hand, the learned counsel appearing for the respondent-wife, relying upon ajudgment of a Division Bench of this Court reported in Silla Jagannadha Prasad Vs. Silla Lalitha Kumari, , contended that even when the application filed Seeking relief under the provisions of "the Act" is dismissed, yet at the instance of the respondent, permanent alimony can be granted under S. 25 of "the Act". This decision is directly in point and fully supports the contention of the learned counsel for the respondent.

But there is a judgment of the Supreme Court reported in Chand Dhawan (Smt) Vs. Jawaharlal Dhawan, which squarely covers the present case. In the said case, it was held that "any decree" occurring in S. 25 of "the Act" takes in only decrees granting reliefs which disturb the marriage, or confer or take away any lega I character or status relating to the marriage, and the decree of dismissal of the application will not fall within the meaning of "any decree".

This decision of the Supreme Court, while approving the decisions referred to supra (1 to 4) and others specifically overruled the view taken in Silla Jagannadha Prasad Vs. Silla Lalitha Kumari, . It would be relevant to refer to the observations of the learned Judges of the Supreme Court in this connection which arc as under ( AIR 1993 SCW 2548) :

"The matrimonial Court, a Court of special jurisdiction, is not meant to pronounce upon a claim of maintenance without having to go into the exercise of passing a decree, which implies that unless it goes onwards, moves or leads through, to affect or disrupt the marital status between the parties. By rejecting a claim, the matrimonial Court does make an appealable decree in terms of Section 28, but that neither affects nor disrupts the marriage. It certainly does not pass a decree in terms of Section 25 for its decision has not moved or done anything towards, or led through, to disturb the marriage, or to confer or take away any legal character or status."

The learned Judges of the Supreme Court held that when an application, filed for any one of the reliefs under the Hindu Marriage Act, is dismissed, then application under S. 25 of "(he Act" will not lie. In the present case, husband filed O. P. No. 148 of 1984 on the file of IIIrd Additional Judge, City Civil Court, Secunderabad seeking divorce on the ground of cruelty and desertion and the same was dismissed by the trial Couri. However, on the application of the wife, the lower Court granted permanent alimony. Husband filed C.M.A. No. 1062 of 1992 questioning the dismissal of his application for divorce as well as the present appeal questioning the order of the trial Court granting permanent alimony.

C.M.A. No. 1062 of 1992 filed against the main order dismissing the application for divorce was dismissed by us. Having regard to j the fact that the application filed for divorce is dismissed, there is no decree within the meaning of "any decree" in S. 25 of "the Act". Therefore, the application filed by the wife for permanent''alimony under S. 25 of "the Act" will not lie.

For the foregoing reasons, the appeal is allowed and the order of the learned trial Judge granting permanent alimony is set aside. There is be no order as to costs.

Appeal allowed.