Rajasthan High Court - Jaipur
Pista (Smt.) vs Bheru Lal on 3 December, 2005
Equivalent citations: RLW2006(2)RAJ914, 2006WLC(RAJ)UC436
JUDGMENT Rajesh Balia, J.
1. Heard learned Counsel for the parties.
2. This civil revision petition has been filed by the petitioner under Section 115, CPC but considering that an important question of law is arising for consideration in this revision, the learned Single Judge was of the view that the matter is to be heard by the Division Bench. Hence, the same is before us.
3. The petitioner is divorced wife. By order dated 22.2.1999 (Annex. 3) passed by the learned District Judge, Pali a consent decree for divorce was passed dissolving the marriage between the petitioner and the respondent and a decree for permanent alimony was passed for a lump-sum of Rs. 85,000/-. The payment of Rs. 85,000/- was to be made in two installments; one was to be paid on 15.5.1999 and another was to be paid on 1.8.1999. In case of default to pay the amount of permanent alimony, 12% per annum interest was to be paid thereon.
4. In pursuance of this decree, first instalment of Rs. 42,500/- was duly paid. However, before the second instalment became due, wife had remarried. Coming to know of this fact, the respondent applied for modification of the order dated 22.2.1999 for recalling the order of permanent alimony and for stopping the payment for second instalment on account of the wife's remarriage. The said application has been allowed by the learned District Judge, Pali vide order under challenge. It is contended that one time gross amount decreed by way of permanent alimony cannot be withdrawn under the Hindu Marriage Act, 1955 under Sub-section (1) of which it is envisaged that at the time of passing any decree or at any time subsequent thereto, on an application made to it for the purpose by either, the wife or the husband, as the case may be, the court may order the respondent to pay to the application 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.
5. Sub-section (1) of Section 25 of the Hindu Marriage Act, 1955 envisages that 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 very, modify or rescind any such order in such manner as the Court may deem just.
6. While the petitioner contends that the decree for permanent alimony is a decree for payment of gross sum one time, therefore, the liability to pay permanent alimony accrues immediately and becomes the liability in absolute of the granter and it becomes decree of the Court.
7. Provisions of Sub-section (3) applies to the cases where a periodical sum is ordered to be paid regularly and the power can be exercised in respect of liability which may accrue in future. Even such periodical payment in respect of which liability has already accrued or the sum which has already been paid cannot be varied nor the amount already paid can be recovered. The order for varying, modification or recession of earlier order can only be in respect of liability that becomes due in future.
8. Learned counsel for the petitioner urges that Sub-section 3 of Section 25 of the Hindu Marriage Act, 1955 does not make any distinction between permanent alimony and decree of periodical maintenance. The power of the Court to amend, vary, modify or cancel the order is absolute in terms, he placed reliance in support of his contention on Ammireddi Ramamoorthy (died) and Ors. v. Ammireddi Sitharamamma and Ors. , D.S. Sashadri v. Jayalakshmi 1963 Madras 283 and Minarani Majumdar v. Dasarath Majumdar . He further states that all the three judgments relied by him, the decision passed by Andhra Pradesh High Court in Ammireddi Ramamoortny (supra), has been confirmed by the Hon'ble Supreme Court in Ammireddi Raja Gopala Rao and Ors. v. Amiredi Sitharamamma and Ors. .
9. On the other hand, learned Counsel for the respondents placed reliance on Blanche Somerset Taylor v. Charles George Bleach AIR 1915 Bombay 50, Havelock Charles David Goodall v. Mrs. Beatrice Honor Agatha Goodall AIR 1938 Bombay 121
10. We have given our careful consideration to the rival contentions. The scheme of Section 25 of the Hindu Marriage Act, 1955 suggests that there is no room for recovery of any periodical sum paid under order passed under Section 25. The power to vary, modify or rescind an order passed under Sub-section (1) obviously can be operative w.e.f. future date and it can only effect the liability under the decree that accrues and becomes payable as a result thereof after any of the exigencies envisaged under Section 25(3) take place and the proceedings to this effect has been taken. Since, the permanent alimony is a decree for the payment of maintenance, it becomes due as soon's the decree has been passed In favour of the grantee and payable by the judgment- debtor. If the right becomes absolute at the time of passing of the decree to receive such sum and there is no provision for recovery of such sum later on, the question about varying, modifying or reducing such sum after the order of receiving the payment of decree of permanent alimony is made would not arise. However, on the other hand where the periodical sum has been awarded by way of maintenance for life over a period, the decree for payment of such sum becomes operative only on expiry of each period when only it becomes payable at that point of time. On the happening of the eventuality, under Sub-section (3), the order passed under Sub-section (1) in respect of such sum which becomes due in future after making of application can be modified, varied or rescinded. That appears to be the reasonable inference drawn from the scheme under Section 25.
11. The decisions rendered under Divorce Act as well as under Section 25 of the Act of 1955 supports the view which has commended us.
12. Blanche Somerset Taylor v. Charles George Bleach (supra) was a case Which had arisen under the Divorce Act. Section 37 of the Divorce act, 1869 enabled the Court to pass a decree for permanent alimony or for a payment of periodical maintenance to wife and proviso to Section 37 enabled it to provide cancellation of decree. A question had arisen in the context of wife's claim that the order of permanent alimony passed in her favour should carry interest as may be directed by the Court during her life time so that she can be maintained out of that. The contention was founded on the ground that Section 37 envisaged grant of maintenance "for any time".
13. The Division Bench of the court opined that expression "for any time not exceeding her own life" did not qualify the word permanent alimony but qualified the periodical payments. The Court said The plain meaning of those words would appear to me to be that the gross sum of money should be paid absolutely to the wife and that the annual sum of money only should be limited for the period of her life.
14. Thus, the Court recognized that the order of permanent alimony is absolute in terms and is not qualified in other petitions.
15. In Havelock Charles David Goodall v. Mrs. Beatrice Honor Agatha Goodall (supra), after a decree of permanent alimony was passed in favour of the wife, husband applied for cancelling the decree for permanent alimony on the ground that after passing the decree for permanent alimony, the wife has obtained a decree for maintenance on an application that was made prior to dissolution of marriage. Rejecting the husband's contention the Court said:-
Though the High Court has ample jurisdiction under Section 37, proviso to discharge or modify or suspend an order for alimony in so far as it concerns future payment, the High Court has no jurisdiction to declare that a husband should not be liable to make good sums which have already accrued due by way of alimony under a decree.
16. This decision clearly indicates that the power to modify, rescind or discharge the order of alimony is restricted to the periodical payment to be made in future and not to apply to one time grant of permanent alimony which in terms in absolute.
17. The same view was followed by the learned Judge of Orissa High Court in the case of arising under Section 25 of the Hindu Marriage Act. It was a case in which wife obtained a decree of divorce and she also obtained a decree for payment of gross sum by way of permanent alimony within one month of decree. Subsequent thereto wife remarried. Husband applied for rescinding the decree awarding gross sum.
18. Relying on the aforesaid two decisions, the Court said that in case of monthly and periodically payable sum, the Court can rescind the order as to such payments relating to future payments only. The same does not apply to rescission of an order granting gross sum, which would amount to annulment of a past liability. Such annulment would also lead t an absurdity inasmuch as the past dues accruing in favour of the wife between the decree and the remarriage cannot be rescinded under Section 25 as such liability constituted an integral part of the gross sum decreed. The past and future liabilities constituted the gross sum are not serverable. Rescission of such an indivisible liability cannot, therefore, be countenanced.
19. We are in respectful agreement with he view expressed by the Orissa High Court which draws support from the decision of Allahabad and Bombay High Courts referred to above.
20. The decisions relied on by the learned Counsel decide the issue and no one of them deal with the controversy with which we are not concerned.
21. When the Court makes an order of permanent alimony or for one time payment, it is not founded on any stipulation that any part of sum would be refunded actually either whole or partly. Such sum is not granted on condition against remarriage for all times to come or for any particular period. In fact, it is something different from the obligation to her husband to maintain his divorced wife for his life or until remarriage. The permanent alimony in a way is an estimated sum in lump-sum to discharge the judgment-debtor from his future liabilities unconditionally. On the other hand, the grant of periodical payment by way of maintenance to a divorced wife is in recognition/obligation of the spouse to maintain her so long as she enjoys the continued status of divorcee. On such remarriage that status of divorcee comes to an end and she acquires another marital status as someone's spouse. Under the Hindu Adoption and Maintenance Act as well as under Section 125 Cr.P.C. wife includes a divorcee. Therefore, when the wife remarriage, her claim of maintenance primarily comes to stand against her new husband and coming into existence in new relationship, obligation of maintaining the divorced wife is shifted to the husband, whom she subsequently marries. The future obligation to maintain her by her previous husband comes to an end. That makes a case of permanent alimony different from a case of grant of periodical maintenance. Former is to discharge husband from his obligation for all times in lieu of a settled reason, in the later, he is required to continuously discharge his obligations at interval of every period.
22. Moreover, the peculiar feature of this case is that the decree for dissolution of marriage was obtained by consent and decree for permanent alimony was also by consent and the sum determined as permanent alimony forms part of a composite agreement between the parties to free each other from their marital status and mutual obligation. The agreement to pay a sum of Rs. 85,000/-was not under any stipulation that wife would not remarry at all times to come for any specified period, the permanent alimony forms one time agreement between the parties notwithstanding the parties were free to remarry soon after the decree for dissolution of marriage was passed. In such event the intention of the parties being clear that the husband has undertaken to pay Rs. 85,000/- in absolute and unconditionally, there Is no reason to rescind or modify the order of permanent alimony passed In this case merely because the wife has remarried.
23. Accordingly, the petition is allowed. The judgment of the District Judge, Pali dated 22.2.1999 rescinding the decree for second instalment of permanent alimony is set aside. The application of the respondent for rescission or modification of the order for permanent alimony is rejected. Decree for permanent alimony in original stands operative.
24. No order as to costs.