IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA
AT CHANDIGARH
FAO No.M-59 of 2007 (O&M)
Date of decision : 3.9.2009
Colonel Surinder Pal Singh Mahi
... Appellant
Versus
Jaswinder Kaur
...Respondent
CORAM : HON'BLE MR.JUSTICE VINOD K. SHARMA
Present: Mr.Tribhuwan Dahiya, Advocate
for the appellant.
Mr.H.S.Saini, Advocate for
Mr.D.R.Sharma, Advocate
for the respondent.
Vinod K. Sharma, J. (Oral)
This is husband’s appeal against the impugned part of the
judgment and decree dated 3.1.2007 passed by the matrimonial Court vide
which while accepting the petition filed by the petitioner-appellant under
Section 13 (1) (a) and (b) of the Hindu Marriage Act for the grant of divorce,
he has been directed to pay Rs.3 lacs as permanent alimony to the respondent-
wife.
The appellant sought divorce on the ground of cruelty. The
Court held that respondent had treated the appellant with cruelty and decreed
the petition. The relief clause of the order passed by the Additional District
Judge, Chandigarh reads as under:-
“As a result of my findings returned above, the petition
succeeds and is allowed with no order as to costs, and
marriage solemnized between the parties on 23.7.2000 is
ordered to be dissolved with effect from today subject
however to the petitioner paying a sum of Rs.3 lacs as
permanent alimony to the respondent within 3 months
from today. Decree sheet be drawn and file be consigned
to the records after due compilation.”
FAO No.M-59 of 2007 (O&M) 2
Learned counsel for the appellant contends that grant of
permanent alimony of Rs.3 lacs by the learned Additional District Judge,
Chandigarh cannot be sustained in law and it is in violation of the provision
of Section 25 of the Hindu Marriage Act.
Section 25 of the Act reads as under:-
“25. Permanent alimony and maintenance.
(1)Any court exercising jurisdiction under his 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 pay to the applicant for her or his
maintenance and support such gross sum or such monthly
or periodical sum for 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, the conduct of the parties and other
circumstances of the case, 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 re-married 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 may at the
instance of the other party vary, modify or rescind any such
order in such manner as the court may deem just.”
The contention of learned counsel for the appellant is, that in
absence of the application, the Court is not competent to grant permanent
alimony. This contention of the learned counsel for the appellant cannot be
FAO No.M-59 of 2007 (O&M) 3
accepted. A reading of Section 25 of the Hindu Marriage Act clearly
stipulates that any Court exercising jurisdiction under the Act, at the time of
passing of any decree, can grant permanent alimony to the party entitled
thereto. The requirement of application would only arise in case after the
decree, the alimony is claimed under Section 25 of the Act by either of the
parties. Section 25 stipulates:-
1) Any Court exercising jurisdiction under this act, may, at
the time of passing any decree
or
at any time subsequent thereto, an application made to it
for the purpose by either the wife or the husband, as the
case may be, order that the respondent shall pay to
applicant for her maintenance and support such gross sum
or such monthly or periodically sum for a term not
exceeding the life of the applicant as, having regard to
respondent’s own income and other property if any, the
income and other property of the applicant the conduct of
the parties and other circumstances, it may seem to Court
to by just, and any such payment may be received, if
necessary by a change on immovable property of the
respondent.
2) ............
3) ............
The first contention of learned counsel for the appellant that in
absence of application, no alimony could be granted is therefore rejected.
Learned counsel for the appellant also contends that while
adjudicating the question of permanent alimony, the Court was required to
take into consideration the income of the respondent. The contention of
learned counsel for the appellant therefore, is that in this case, the application
moved by the respondent-wife for grant of maintenance pendente lite under
Section 24 of the Hindu Marriage Act during the pendency of the petition was
FAO No.M-59 of 2007 (O&M) 4
rejected, as the respondent is employed as lecturer, though it is claimed by the
respondent that she is employed as teacher.
There is force in this contention of learned counsel for the
appellant. Section 25 of the Hindu Marriage Act stipulates that while granting
permanent alimony, Court is required to take into consideration the income
and property, if any, of the respondent.
The impugned part of the judgment and decree does not take
note of the fact that respondent is employed nor the basis of assessment and
alimony granted is disclosed.
This appeal is allowed. The impugned part of the judgment and
decree granting permanent alimony to the respondent is ordered to be set
aside. The decree of divorce is made absolute as it has not been challenged by
the respondent.
However, this shall not bar the respondent to move an
application under Section 25 of the Hindu Marriage Act for grant of
permanent alimony, in case she is entitled to, in accordance with law.
[ Vinod K. Sharma ]
Judge
03.09.2009
sd