ORDER
Hemant Gupta, J.
1. This order shall dispose of C.M. No. 4060-CII of 2007 filed by Harjinder Singh for staying the execution proceedings pending in the trial court, (hereinafter referred to as the appellant in FAO No. 51-M of 2007), C.M. No. 24-M of 2007 filed by Sukhdev Kaur (hereinafter referred to as the respondent) under Section 24 of the Hindu Marriage Act, 1955 to claim maintenance pendente lite and litigation expenses during the pendency of appeal (FAO No. 51-M of 2007) and C.M. No. 25-M of 2007 filed by Sukhdev Kaur for grant of maintenance pendente lite and litigation expenses in appeal (FAO No. 65-M of 2007) filed by her.
2. Brief facts of the case are that marriage between the parties was dissolved by a decree of divorce by the learned Additional District Judge, Rupnagar on 19.5.2004 in a petition filed by the wife. The ground of dissolution of marriage was cruelty, inter-alia, on account of lack of cohabitation as husband and wife. It is also an admitted fact that for the appellant it was second marriage and that he had three children from his first marriage. Even for the respondent, it was her second marriage and she had a daughter from her first marriage.
3. After dissolution of marriage between the parties, the respondent filed a petition under Section 25 of the Hindu Marriage Act, 1955 (hereafter referred to as ‘the Act’) for the grant of permanent alimony of Rs. 7,00,000/ (Rupees Seven lacs) and maintenance @ Rs. 5000/-per month and to create aforesaid amount as charge on the land owned by the appellant. The learned trial court on the aforesaid petition passed an order granting Rs. 500/-per month as maintenance from the date of filing of the petition i.e. 31.8.2004 as well as held that the respondent was entitled to fixed deposits in the sum of Rs. 61,500/-and Rs. 25,000/-along with interest up to date. It is said order which is subject matter of the appeal by both parties.
4. The appellant has sought the stay of the said order, inter-alia, on the ground that with the grant of decree for dissolution of marriage, there is severance of status of the parties and, therefore, respondent is not entitled to any permanent alimony. Reliance is placed upon Malkiat Singh v. Smt. Darshan Kaur, 2002 (3) Civil Court Cases 665, Chand Dhawan (Smt.) v. Jawaharlal Dhawan and Abbayolla M. Subba Reddy v. Padmamma AIR 1999 Andhra Pradesh 19. It is also argued that the respondent cannot be granted maintenance every month as well as in lump sum and that a separate suit claiming maintenance filed by the respondent is already pending. On the other hand, learned Counsel for the respondent has vehemently argued that the respondent is entitled to litigation expenses and maintenance pendente lite under Section 24 of the Act, in the proceedings for grant of permanent alimony under Section 25 of the Act. In support of his contention reliance has been placed upon judgments of this Court in Chuni Lal Gulati v. Krishana Rani and Krishan Lal v. Smt. Kamlesh Rani, 1988 (1) Punjab Law Reporter, 361.
5. Having heard learned Counsel for the parties at some length, I do not find any substance in the argument raised by the learned Counsel for the appellant. Proceedings under Section 25 of the Act can be initiated at any time after the decree for divorce is granted. What is required is dissolution of marriage by a decree of divorce and only then the Court gets the jurisdiction to decide a petition under Section 25 of the Act. That is the view taken by the Hon’ble Supreme Court in Chand Dhawan’s case (supra). In Chand Dhawan’s case (supra), the wife sought permanent alimony even before the decree for divorce was granted. It was held to the following effect:
… In other words 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 wife’s claim to maintenance necessarily has then to be agitated under the Hindu Adoptions and Maintenance Act, 1956 which is a legislative measure later in point of time than the Hindu Marriage Act, 1955, though part of the same socio-legal scheme revolutionizing the law applicable to Hindus.
6. Considering the aforesaid judgment, the Hon’ble Supreme Court in Rameshchandra Rampratapji Daga v. Rameshwari Rameshchandra Daga , found that even if a decree has been passed declaring marriage null and void, still the Court has a jurisdiction to grant maintenance in terms of Section 25 of the Act. It was held as under:
…To our considered opinion, as has been held by this Court in Chand Dhawan Case, the expression used in the opening part of Section 25 enabling the court exercising jurisdiction under the Act at the time of passing any decree or at any time subsequent thereto to grant alimony or maintenance cannot be restricted only to, as contended, decree of judicial separation under Section 10 or divorce under Section 13. 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 under Section 9, judicial separation under Section 10, declaring marriage as null and void under Section 11, annulment of marriage as voidable under Section 12 and divorce under Section 13.
7. The judgment referred to by the learned Counsel for the appellant i.e. Malkiat Singh’s case (supra) is clearly distinguishable. That was a case where wife had re-married and still sought permanent alimony. In the present case, there is no allegation of the re-marriage of the respondent. Till such time, the wife does not re-marry, she is entitled to maintenance in terms of Section 25 of the Act. Similarly, the judgment of Andhra Pradesh High Court in Abbayolla’s case runs counter to the judgment of the Hon’ble Supreme Court in Rameshchandra’s case (supra) wherein it was held that in a case of the decree declaring the marriage a nullity, the wife is not entitled to maintenance. Since the Supreme Court in Rameshchandra’s case (supra) has held that even in cases of declaring a marriage a nullity, still in terms of Section 25 of the Act, maintenance is payable. Therefore, the reliance of the appellant on the aforesaid judgment is not tenable.
8. In view of Chuni Lal Gulati’s case (Supra) and Krishan Lal’s case (supra), the proceedings under Section 25 of the Act are part of proceedings under Section 24 of the Act and, therefore, the respondent is entitled to maintenance and litigation expenses in proceedings arising out of Section 25 proceedings of the Act.
9. The argument that respondent has been ordered the payment of the FDRs as well as monthly maintenance and that both orders cannot be passed, cannot be examined at this stage. Suffice it to state that as per the respondent, the appellant is earning Rs. 2 lacs per annum from business and from agriculture. The appellant in his reply to the aforesaid application pointed out that he is owner of 11 kanals 11 marlas of land. But the appellant has not disclosed his income. Though it is pointed out by the appellant that the respondent is earning Rs. 10,000/-per month.
10. Since the appellant is an adult earning member and owner of agricultural land measuring 11 kanals 11 marlas, his capacity to earn can be assessed at Rs. 5000/-per month. In view of the said income, Rs. 1500/-per month is determined as maintenance pendente lite. Such maintenance will be payable from the date of filing of the application before this Court i.e. 6.3.2007. Litigation expenses are assessed at Rs. 10,000/-in both the cases. Subject to the payment aforesaid, the execution of the impugned decree shall remain stayed.
11. Civil Miscellaneous stands disposed of accordingly.