Shyamlal Meena vs Smt. Durgabai Meena

N.K. Mody, J.—Being aggrieved by judgment and decree dated 26-7-07 passed by Additional District Judge, Jaora, District Ratlam in Civil Suit No. 60-A/05, whereby the application filed by the appellant for divorce was dismissed by the learned Trial Court and it was directed that the appellant shall pay a sum of Rs. 3,000/- per month as permanent alimony, the present appeal has been filed.

Learned Counsel for appellant submits that grievance of the appellant is that no direction can be issued by the learned Court below regarding payment of permanent alimony where the suit for divorce has been dismissed. Learned Counsel further submits that since in the present case the petition for divorce was dismissed, therefore, learned Court below committed jurisdictional error in holding the appellant liable for payment of permanent alimony @ Rs. 3,000/- per month. Learned Counsel further submits that as per proceedings initiated by the respondent for maintenance u/s 125, Cr.PC registered as M.Cr.C. No. 142/05 was dismissed by Judicial Magistrate First Class Mandsaur vide order dated 24-8-06 against which Criminal Revision was filed by the respondent which was registered as Criminal Revision No. 197/06 and the same was dismissed on 13-7-07 on the ground that respondent is not residing with the appellant without any sufficient cause. It is submitted that in the facts and circumstances of the case, learned Court below committed error in holding the appellant liable for payment of permanent alimony.

Learned Counsel for respondent submits that there is no bar for issuance of direction of permanent alimony, when the suit for divorce is dismissed. Learned Counsel submits that the direction issued, was passed on the application filed by the respondent. It is also submitted that after holding inquiry regarding financial status of the appellant learned Court below has issued the impugned direction which requires no interference. Hence the appeal deserves to be dismissed.

Learned Counsel for respondent placed reliance on a decision in the matter of Silla Jagannadha Prasad Vs. Silla Lalitha Kumari, , wherein Division Bench of Andhra Pradesh High Court has held that Section 25 of the Hindu Marriage Act empowers every Court deciding a matrimonial matter to give the relief of maintenance to either party irrespective of the fact whether the petition for any of the reliefs mentioned in Sections 9 to 13 of that Act is dismissed or allowed, whether the reliefs are granted or declined.

In response to it learned Counsel for appellant placed reliance on a decision of Hon''ble Apex Court in the matter of Chand Dhawan (Smt) Vs. Jawaharlal Dhawan, , wherein Hon''ble Apex Court has held that "the Hindu Marriage Act preserved the right of permanent maintenance in favour of the husband or the wife, as the case may be, dependent on the Court passing a decree of the kind as envisaged under Sections 9 to 14 of the Act. When by Court intervention under the Hindu Marriage Act, affectation of disruption to the marital status has come by, at that junction, while passing the decree, it 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. Without the marital status being affected or disrupted by the Matrimonial Court, under the Hindu Marriage Act the claim of permanent alimony was not to be valid as ancillary or incidental to such affectation or disruption. 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. It was further observed by the Hon''ble Apex Court that 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 u/s 18(1) of the Hindu Adoptions and Maintenance Act. Relief to the wife may also be due u/s 125 of the Code of Criminal Procedure. But this is a measure in the alternative to provide for destitute wives.

However, the Court is not at liberty to grant relief of maintenance simpliciter obtainable under one Act (Hindu Adoptions and Maintenance Act) in proceedings under the other (Hindu Marriage Act). Both the statutes viz., the Hindu Marriage Act and the Hindu Adoptions and Maintenance Act codified as such 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. These two enactments keeping apart, the remaining two, i.e., Hindu Succession Act, 1956 and Hindu Minority and Guardianship Act, 1956 are a package of enactments, being part of the one socio-legal scheme applicable to Hindus. When distinctive claims are covered distinctly under two different statutes and agitable in the Courts conceived of thereunder, the plea that when a claim is otherwise valid, choosing of one forum or the other should be of no consequence, cannot be sustained. These are not mere procedural technicalities or irregularities, but are matters which go to the root of the jurisdiction.

By this judgment Hon''ble Apex Court over-ruled the decision given by Andhra Pradesh High Court. In another decision of this Court in the matter of Badri Prasad Vs. Smt. Urmila Mahobiya, , it was held that permanent alimony to wife cannot be granted if a petition for divorce between the parties is dismissed.

In the matter of Rameshchandra Rampratapji Daga Vs. Rameshwari Rameshchandra Daga, , the Hon''ble Apex Court has observed that Section 25 of the Hindu Marriage Act is an enabling provision. It empowers the Court in a matrimonial case to consider facts and circumstances of the spouse applying and decide whether or not to grant permanent alimony or maintenance. It was also observed that when the legislature has used such wide expression as ''at the time of passing of any decree''. It encompasses within the expression all kinds of decrees such as restitution of conjugal rights u/s 9, judicial separation u/s 10, declaring marriage as null and void u/s 11, annulment of marriage as voidable u/s 12 and divorce u/s 13. It was also observed by the Hon''ble Apex Court that it is with the purpose of not rendering a financially dependant spouse destitute that Section 25 enables the Court to award maintenance at the time of passing any type of decree resulting in breach in marriage relationship.

In the present case from perusal of the record it is evident that vide order dated 13-7-06 interim maintenance was awarded @ Rs. 500/- per month from the date of the order and Rs. 1,000/- as litigation expenses. No issue was framed regarding entitlement of the respondent for permanent alimony. Apart from this the petition filed by the appellant for divorce was dismissed. In the circumstances the direction of the learned Court below for payment of permanent alimony was beyond jurisdiction of the Court and learned Court below committed error in awarding permanent alimony @ Rs. 3,000/- per month.

In view of this appeal stands allowed. Part of the judgment and decree whereby permanent alimony has been awarded @ Rs. 3,000/- per month is set aside. However, it is made clear that respondent is at liberty to take appropriate steps for grant of maintenance and if any proceedings are initiated by the respondent then the Competent Authority shall proceed with the same at the earliest in accordance with law. No order as to costs.