Susheela vs R. Jagannadham

Chandra Reddy, C.J.—This appeal is filed against the order of the Chief Judge, City Civil Court, dismissing a petition u/s 25 of the Hindu Marriage Act for granting a permanent alimony of Rs. 100/- per mensem.

In O. P. No. 73 of 1959, the appellant sought dissolution of her marriage on the ground of impotency of the husband. She also prayed for permanent alimony at a particular rate. While granting a decree for dissolution of marriage, the Chief Judge, City Civil Court, disallowed the claim for permanent alimony, as no evidence was led by the wife regarding the circumstances which would justify the grant of permanent alimony. These orders have become final, as neither party has questioned that part of the judgment which went against him or her. Sometime later, the application giving rise to this appeal was filed.

The trial Judge dismissed the petition for the grant of permanent alimony and observed:

"It is purely within the discretion of the Court to grant alimony or not having regard to the circumstances of each case, So far as this case is concerned, the petitioner has not adduced any evidence in this regard, though a specific issue was framed in O. P. No. 73 of 1959 itself. I do not think, It would be in the interests of justice to grant permanent alimony to the petitioner."

It is this order that is under appeal now.

It is argued by Sri Ugle, learned counsel for the appellant that the learned Judge erred in dismissing the petition on the ground that it was not in the Interest of justice to grant permanent alimony without affording an opportunity to his client to lead any evidence regarding the circumstances of herself and of the respondent. It is true that the last part of the order is not happily worded; but that does not entitle the appellant to claim a reversal of the order of the trial Court. The relief of permanent alimony was refused to the appellant on an earlier occasion and that became final. The argument of the learned counsel for the appellant that that would not stand in the way of her making another application is based upon Section 25 of the Hindu Marriage Act. We do not think that the provisions of Section 25 can lend any countenance to the theory propounded by him. That section reads :

"(1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall, while the applicant remains unmarried, pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum far a term not exceeding the life of the applicant as having regard to the respondent''s own income and other property, if any, the income and other property of the applicant and the conduct of the parties, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

(2) If the Court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under Sub-section (1), it may, at the Instance of either party, vary, modify or rescind any such order in such manner as the Court may deem just.

(3) If the Court is satisfied that the party in whose favour an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it shall rescind the order."

It Is abundantly clear from the terms of this section that it is only if no application was made earlier for the relief of maintenance that an application could be made at any time after the passing of the decree. It does not establish the proposition that although this request was negatived at the time of making the decree it could be renewed subsequently. It only postulates that if no request for alimony was made and granted at the time of the passing of the decree it could be made subsequent to the passing of the decree. It cannot support the argument that although the request was rejected at the time of the passing of the decree another request could be made later on. This contention involves the notion that any number of applications could be made for the same relief.

Sub-section (2) of Section 25 also cannot render any assistance to the appellant. On the other hand, it furnishes an effective answer to the argument of the learned counsel for the appellant. That section enables either of the parties to make another application if there is a change in the circumstances of either party at any time after the order was made under Sub-section (1), but not otherwise. Surely, it is open to the appellant to establish that since the dismissal of the petition for alimony on the earlier occasion a change in the circumstances of either herself or her husband had occurred. But, without indicating that there was a change of circumstances as contemplated by Sub-section (1) of Section 25, the appellant could not maintain an application for the same relief on identical circumstances. We, therefore, do not find any justification to interfere with the order under appeal.

The appeal is dismissed but there will be no order as to costs.