JUDGMENT
Nirmal Yadav, J.
1. This is husband’s appeal challenging the findings of the trial Court only with regard to the relief clause.
2. The appellant-husband filed a petition under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the ‘Act’) for dissolution of marriage by way of a decree of divorce on the grounds of desertion and cruelty. The learned trial Court accepted the grounds of desertion and cruelty pleaded by the appellant and granted decree of divorce for dissolution of marriage. The learned trial Court, however, observed that it can not lose sight of the fact that the couple has three grown up and marriageable daughters born out of the wedlock. They cannot be left to bear the vagaries of life and, therefore, directed the appellant to perform certain obligations. It was directed that appellant-husband would transfer house No. 517-A situated in Mohalla Gher Sodhian, Patiala, where respondent-wife and three daughters were residing at that time, in the name of respondent-wife and three daughters in equal shares within one month from the date of the decree and in case, the house could not be transferred, then he would pay Rs. 5,00,000/- in cash to the respondent for purchase of a house in the name of herself as well as three daughters. The trial Court further directed the appellant-husband to pay Rs. 2,00,000/- each through bank draft for the marriage of three daughters. The trial Court also directed the appellant-husband to pay a sum of Rs. 2,000/- per month to the respondent-wife till she re-marriages, failing which the decree would be a nullity.
3. Learned counsel for the appellant, at the outset, argued that respondent-wife did not file any application claiming permanent alimony and maintenance, which is a condition precedent as provided under Section 25 of the Act. It is further argued that the trial Court could exercise its power of granting alimony only on filing of such an application by the wife. A decision to grant permanent alimony would require to consider the earnings of the appellant-husband, the conduct of the parties and other facts and circumstances of the case. The trial Court could not grant permanent alimony and maintenance unless both the parties were given opportunity to place material before Court supporting their claim. In support, the learned counsel referred to titled as D. Balakrishnan v. Pavalamant and Ors., and 1984 H.L.R. 489 titled as Meerabai v. Laxminarayan Mishra. The basic argument raised by learned counsel for the appellant is that ho conditional decree could be passed by the trial Court. The grant of maintenance should have been ordered independently while passing the decree of divorce for dissolution of marriage. The learned counsel further argued that trial court could not grant Rs. 2,00,000/- each for the marriage of three daughters under the provisions of Sections 24 and 25 of the Act. The maintenance could only be granted to the spouse concerned and not to the children. The learned counsel argued that decree of divorce is an executable decree in view of the provisions of Section 28-A of the Act. It is argued that where the decree or order relating to alimony or maintenance or expenses for the litigation is passed, it has to be treated as a money decree and has to be executed as per the provisions of the Civil Procedure Code. Any enforcement of the decree otherwise than by execution, is not maintainable.
4. In the present case, marriage between the parties was solemnised on 2.3.1975. The parties lived and cohabited together at Patiala upto 1988. Thereafter, the husband shifted to Jammu. Out of the wedlock, three daughters, namely, Parminder Kaur, Rupinder Kaur and Sumeet Kaur were born. Parties lived together upto 1992 and since then respondent-wife has been living separately. According to the appellant-husband, behaviour of respondent-wife was unbearable and uncalled for; the agony and tension thereof resulted into cruelty to him. The respondent persisted with her cruel behaviour and conduct, thereby he lost his mental peace. It is also pleaded that respondent-wife withdrew from the society of the appellant-husband without any reasonable cause.
5. On the other hand, the respondent-wife controverted the pleas taken in the petition. According to her, it is the appellant-husband who treated the respondent-wife with cruelty and deserted her after the birth of their third daughter. The husband tortured the wife on account of the fact that she was unable to deliver a male child. Even the house where respondent-wife and her three daughters were residing, was sold for Rs. 7,00,000/- and thereafter appellant-husband purchased a small house for Rs. 3,00,000/-. The appellant had shifted to Jammu with a motive to perform another marriage and respondent along with three daughters was never allowed to stay with him at Jammu. It was further pleaded that appellant-husband had filed a divorce petition at Jammu, which he got dismissed as withdrawn. Respondent-wife and her three daughters were waiting for the appellant for their protection. The appellant-husband sold away the house where the wife and daughters were living in order to harass them, and purchased a smaller house, which was not sufficient for their living. It is further pleaded that in the old house there were two shops, which were leased on rent and the said amount was sufficient for their daily needs. She had filed an application under Section 24 of the Act for grant of maintenance pendente lite. In that application she had mentioned about providing of accommodation to her and three daughters.
6. The trial court after taking into consideration the facts, and circumstances of the case, accepted the grounds of mental cruelty and desertion in favour of the appellant-husband. However, the observations of the trial Court with regard to three daughters born out of the wedlock, are worth mentioning, which read as under:-
“It is painful to note that with the ego of both respondent as well as of the petitioner the real sufferers are these three daughters who have been denied the love and affection of the father….”
Taking into consideration that there are three grown up daughters, the trial Court has taken care of their interest and made arrangements for their marriages. It is evident from the impugned judgment that besides granting permanent alimony to the wife and making residential arrangement for the wife and children, the trial Court has made arrangement of some amount for performing the marriages of the daughters, who are, admittedly of marriageable age.
7. The first argument of the learned counsel for the appellant is that trial court is not empowered to pass such orders under the Act. However, a perusal of provisions of Sections 25 and 26 of the Act would show that the Court is clearly empowered to make such arrangements under these provisions. It is apt to notice the provisions of Sections 25 and 26 as under:-
“25. Permanent alimony and maintenance.- (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 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 under 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 may at the instance of the other party vary, modify or rescind any such order in such manner as the Court may deem just.
26. Custody of children.- In any proceedings under this Act, the Court may from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, alter the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceedings for obtaining such decree were still pending, and the Court may also from time to time revoke, suspend or vary any such orders and provisions previously made.
Provided that the application with respect to the maintenance and education of the minor children, pending the proceedings for obtaining such decree, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.”
8. While enacting the provisions of the Hindu Marriage Act, the Legislature has adopted a broader approach. Therefore, the words “application made to it”, as provided in sub-section (1) of Section 25 of the Act, have to be taken in a broader sense and cannot be construed in a strict sense. The language of Section 25 of the Act does not convey that the spouse who needs protection under the provisions of the Act is required to present a specific application for grant of permanent alimony. In the present case, the wife filed an application under Section 24 of the Act. She has also mentioned about making the provision with regard to residence in her written statement. Even though Section 25 of the Act contemplates submitting of an application, but it would not disentitle the wife from receiving the permanent alimony under Section 25 of the Act as it would only amount to insisting of a technically and not keeping the interests of justice. While making these observations, my view is endorsed by the decision rendered by the Madly Pradesh High Court in Kanhaiyalal Mangilal Maghia v. Smt. Chandbai Maghia, 1999(1) Civil Court Cases 319 (M.P.) as well as by the Madras High Court in N.R. Gopal v. K.G. Banumathi and Ors., 2000(2) Marriage Law Journal 527.
9. The provisions of Section 25 and 26 of the Act have been introduced in the Act for the purpose of protecting interests of such a spouse against whom a decree has been passed and more particularly, when such a spouse happens to be a wife, the Courts cannot be a mute spectator to see such a spouse seeking shelter on the street at the stake of losing her soul and virtue. In the present case, the wife has to look after three daughters who are of marriageable age when the decree of divorce was passed. The Court is to definitely taken into consideration that some arrangement is made to enable such spouse, i.e. wife to have some money with her which would enable her to live separately and to maintain the dignity of womanhood. The Court must make such provision so that the wife could maintain herself and the children born out of the wedlock, which is dissolved by the decree of divorce. In case, the trial court did not make any provision for the residence and marriage of three daughters, it would certainly, create a difficult situation for the divorced wife and three daughters increasing the possibilities of starving and unchastity. Therefore, I do not find any infirmity or illegality in making arrangement for the residence and awarding Rs. 2,000/- per month for maintenance to wife. On the same analogy, arrangement(s) can be made for the children also, even though no application is made on their behalf by their mother under Section 26 of the Act. The Court may pass such interim order and make such provisions in the decree as it may deem just and proper with respect to maintenance or performing marriage of young daughters consistently with their wishes. Under Section 26 of the Act though there is no specific provision for providing maintenance or making arrangement for the marriage of unmarried daughters, yet there is no illegality in making such an arrangement keeping in view the peculiar facts and circumstances of the case. It is the bounden duty of appellant-husband to maintain the wife and daughters who are dependent on him.
10. The argument of the learned counsel for the appellant that trial Court could not pass a conditional decree and such decree is only executable under the provisions of Section 28-A the Act, cannot be accepted, as no bar has been provided under the Act in making such an arrangement. Also there is no bar in the Act for enforcement of such an order as has been passed in the present case. In the judicial pronouncements cited by the learned counsel for the appellant, the Court did not accept the argument that maintenance pendente lite could be granted only on filing of an application, on the ground that an opportunity has to be given to the other side to put forth his/her defence. However, in the present case, in the application filed under Section 24 of the Act as well as in the written statement, the wife had categorically stated that she along with daughters had no place of residence and therefore, they looked towards the husband for their care. As discussed above, non filing of application would amount to only adhering to technicalities rather than serving the ends of justice.
11. In view of the above discussion, this Court is not inclined to interfere in the order of the trial court as it has passed an order in the larger interest of justice keeping in view the welfare of the respondent-wife and three marriageable daughters born out of the wedlock, who were unable to maintain their dignity and rather coming to their rescue for saving them from suffering the vagaries of life.
12. Accordingly, the appeal is dismissed.