Gujarat High Court
Darshankumar S/O Dhirajlal Kalani vs Bhavika Darshankumar Kalani on 8 April, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/2916/2019 CAV JUDGMENT DATED: 08/04/2025
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Reserved On : 24/03/2025
Pronounced On : 08/04/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2916 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/FIRST APPEAL NO. 2916 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE BIREN
VAISHNAV
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
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DARSHANKUMAR S/O DHIRAJLAL KALANI
Versus
BHAVIKA DARSHANKUMAR KALANI
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Appearance:
MR VISHAL C MEHTA(6152) for the Appellant(s) No. 1
MR. MEHUL SHAH, SENIOR COUNSEL WITH SAMEE A URAIZEE,
ADVOCATE for the Appellant(s) No. 1
MR SALIL M THAKORE(5821) for the Defendant(s) No. 1
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CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
CAV JUDGMENT
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE BIREN VAISHNAV) Page 1 of 32 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:22:18 IST 2025 NEUTRAL CITATION C/FA/2916/2019 CAV JUDGMENT DATED: 08/04/2025 undefined 1 This appeal has been filed by the appellant, who was the original plaintiff in Family Suit No. 61 of 2013 filed before the Family Court at Vadodara. The suit was filed by the appellant under the provisions of Sec.13(1)(i-a) of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act"), for obtaining a decree of divorce. The Family Court by its judgement and decree dated 16.01.2019, allowed the Family Suit and decreed dissolution of the marriage. However, while allowing the suit, the Family Court directed the appellant to pay a sum of Rs.70 lakhs towards permanent alimony to the respondent-wife under Sec.25 of the Act. The appeal has been filed only to the extent that the Family Court directed payment of permanent alimony.
2 We have heard Mr.Mehul Shah, learned Senior Counsel appearing with Mr.Sami Uraizee, learned advocate for the appellant. Mr.Shah, learned Senior Counsel, made the following submissions: Page 2 of 32 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:22:18 IST 2025
NEUTRAL CITATION C/FA/2916/2019 CAV JUDGMENT DATED: 08/04/2025 undefined 2.1 Mr.Shah, learned Senior Counsel, would submit that reading Section 25 of the Act would indicate that for passing a decree and order and for granting permanent alimony, there has to be an application and also the parties have to lead relevant evidence in order to come to a finding on the amount of alimony. He would submit that the Trial Court committed an error in granting permanent alimony without there being an application, without any issue being framed or without discussing any relevant evidence.
2.2 Mr.Shah, learned Senior Counsel, would submit that apart from any written application, the respondent even did not make any oral request or prayer before the lower Court, and therefore, the order and the direction to pay permanent alimony is ex-facie unsustainable in law.
Mr.Shah, learned Senior Counsel, would further submit that it was incumbent upon the Family Court to first discuss, appreciate and then record categorical findings as regards the financial capacity of the appellant as well Page 3 of 32 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:22:18 IST 2025 NEUTRAL CITATION C/FA/2916/2019 CAV JUDGMENT DATED: 08/04/2025 undefined as the respondent-wife and such findings have to be based on appreciation of evidence on all material issues. The learned Court did not even frame any issue with regard to permanent alimony.
2.3 Mr.Shah, learned Senior Counsel, would further submit that the Family Court, without any rational base, assessed the sum of Rs.70 lakhs to be granted to the respondent as permanent alimony. The Family Court did not even discuss the issue with regard to income and property of the appellant as also the status of the parties including that of the respondent. Mr.Shah, would further submit that the respondent-wife, even in her written statement at Exh.48 has nowhere prayed for the grant of any monetary assistance or permanent alimony so as to constitute a prayer thereof.
2.4 Mr.Shah, learned Senior Counsel, would submit that even an application which was preferred by the respondent under Sec.24 of the Act praying for grant of Page 4 of 32 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:22:18 IST 2025 NEUTRAL CITATION C/FA/2916/2019 CAV JUDGMENT DATED: 08/04/2025 undefined maintenance pendent lite could not be treated as an application under Sec.25. Even otherwise, vide order dated 13.11.2017, the application came to be disposed of by the lower Court categorically observing that the respondent had shown lack of interest to proceed with the same. On this count also, the respondent was not entitled to the alimony as directed by the Trial Court. Mr.Shah, would further submit that it is a settled proposition of law that grant of permanent alimony is an equitable relief. As per the mandate of Sec.25(1), conduct of the parties is also important to evaluate the amount. He would submit that the respondent has levelled false, frivolous and serious allegations against the appellant accusing him of an illicit relationship with other woman. 2.5 According to Mr.Shah, learned Senior Counsel, the respondent in her cross-examination, had refused to disclose material details regarding salary slips from her employment in the United States. This prevented the Family Court from assessing the social and financial Page 5 of 32 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:22:18 IST 2025 NEUTRAL CITATION C/FA/2916/2019 CAV JUDGMENT DATED: 08/04/2025 undefined status of the respondent and this itself disentitled the respondent from receiving any alimony. In the submission of Mr.Shah, the appellant had produced evidence to show that a lease agreement was executed in her favour whereby the wife was to pay monthly rent of 850 dollars and that her educational qualifications were sound enough to give her sustenance and also that she has purchased her car. All these material facts ought to have been considered and the Trial Court even in para 9.14 of the judgement recorded a finding that the respondent is able to maintain herself. Despite this, the direction to pay a sum of Rs.70 lakhs towards permanent alimony was misconceived.
2.6 Mr.Shah, learned Senior Counsel, would submit that the direction to pay the permanent alimony cannot in any manner be treated to be a direction under Sec.26 of the Act. He, moreover, submitted that the appellant continued to pay the sum as ordered by the U.S Court towards child support, whereas the respondent has not Page 6 of 32 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:22:18 IST 2025 NEUTRAL CITATION C/FA/2916/2019 CAV JUDGMENT DATED: 08/04/2025 undefined abided by the directions of the Court with regard to child access. Mr.Shah, in support of his submissions relied upon the following decisions:
(1) Jalendra Padhiary Vs. Pragati Chhotary, reported in 2018 (16) SCC 773.
(2) Sukhdev Singh Vs. Sukhbir Singh., reported in AIJEL SC 74725.
(3) Vinny Paramvir Parmar Vs. Paramvir Parmar., reported in 2011 (13) SCC 112.
(4) Vijayshree D/o. Ganesh Ingle Erstwhile Vijayshree W/o. Nishant Kale Vs. Dr.Nishant Arvind Kale., reported in 2021 SCC Online Bom 29. 2.7 Mr.Mehul Shah, learned Senior Counsel, would try and distinguish the decisions relied upon by Mr.Salil Thakore, learned counsel for the respondent, on the question of whether an application, oral or written is necessary.Page 7 of 32 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:22:18 IST 2025
NEUTRAL CITATION C/FA/2916/2019 CAV JUDGMENT DATED: 08/04/2025 undefined 3 Mr.Salil Thakore, learned counsel appearing for the respondent, made the following submissions:
3.1 That the direction to pay alimony of Rs.70 lakhs was just and proper. Despite the order passed by this Court, the husband-appellant herein had not deposited the amount, and therefore, no indulgence can be given to the appellant. Even on 22.07.2019, the appellant-husband had made a statement before this Court that he will deposit the amount of Rs.70 lakhs till March 2023 of which he had deposited only Rs.15 lakhs. Relying on a decision in the case of Palaniappan Vs. Raman, reported in AIR 1929 Mad 672., he would submit that unless the appellant purges his contempt, the appeal cannot be heard by this Court.
3.2 On the submission of the appellant that an application is necessary to award permanent alimony, Mr.Thakore, learned counsel, would submit that there is no requirement under Sec.25 to file an application. The Page 8 of 32 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:22:18 IST 2025 NEUTRAL CITATION C/FA/2916/2019 CAV JUDGMENT DATED: 08/04/2025 undefined provision of granting permanent alimony is a beneficient provision. For this submission, Mr.Thakore, learned counsel, would rely on the following decisions:
(1) Amutha Vs. A.R.Subramanian, reported in 2024 SCC On Line SC 3822.
(2) Umarani Vs. D.Vivekannandan., reported in 2000 SCC OnLine Mad 50.
(3) Surajmal Ramchandra Khati vs. Rukminibai., reported in 1999 SCC OnLine MP 87. (4) Vijayashree Vs. Nishant Arvind Kale., reported in 2021 SCC OnLIne Bom 29.
(5) S.Chandra Vs. C.V.Sridharan., reported in 2007 SCC OnLIne Mad 1657.
(6) C.H.Bhatt Vs. Naliniben C. Bhatt., reported in (1995) 2 GLR 1525.
(7) Mahendra Kumar Mishra vs. Smt.Snehalata Kar., reported in AIR 1983 Ori 74. (8) A.Jairam Vs. A.Sumar., reported in 2005 SCC OnLine Raj 1124.
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NEUTRAL CITATION C/FA/2916/2019 CAV JUDGMENT DATED: 08/04/2025 undefined (9) Munuszvamy Rajoo Vs. Hansa Rani., reported in AIR 1975 Mad 15.
(10) Satish Kumar Sawhney Vs. Prem Sawhney., reported in 1997 SCC OnLine Del 207.
3.3 Mr.Thakore, learned Counsel, would submit that in light of these decisions, it is evident that the Hon'ble Supreme Court also had awarded maintenance and so had other High Courts without any application. The Courts have taken a view that an application can even be oral. From the evidence on record, Mr.Salil Thakore, learned counsel, would submit that a letter of one KPMG is part of the evidence which shows the earning summary of the appellant. Cross-examination was done on the issue of income which is as good as oral application. He would therefore submit that both the sides therefore were alive to the issue of alimony. Mr.Thakore, learned counsel, would submit that it is a well settled principle that the Court should avoid taking a very technical view in such matters.
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NEUTRAL CITATION C/FA/2916/2019 CAV JUDGMENT DATED: 08/04/2025 undefined 3.4 Mr.Thakore, learned Counsel, would submit that award of Rs.70 lakhs as alimony was totally just. Reading various paragraphs of the judgement under challenge, Mr.Thakore, would submit that the parties got married in February 2002. Their first son Aum was born in Vadodara on 12.07.2004 and from 2004 to 2008, the appellant was working in Amul and both i.e. the appellant and the respondent were staying in Anand. In August 2005, the appellant shifted to the United States, whereas the respondent shifted to the United States in 2008. The appellant has qualification of MBA (Marketing) and MBA (Finance) and was working at "Delloitte". Falling back on the paper book, he would submit that there is a letter showing that he was with KPMG, where per annum income was Rs.1.15 lakhs U.S.Dollars and as per the 2012 exchange rate, it was Rs.60 lakhs per annum, which as per 2025 exchange rate would be Rs.99 lakhs per annum. He would, therefore, submit that even if the KPMG earnings are perused, the award of Rs.70 lakhs was far more lower.
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NEUTRAL CITATION C/FA/2916/2019 CAV JUDGMENT DATED: 08/04/2025 undefined 3.5 Mr.Salil Thakore, learned counsel, would submit that out of the wedlock, second son Shivam was born on 15.05.2010. The husband left for the United States in 2011. On an application filed for permanent and temporary custody in the U.S, the husband in such application made a statement that he is capable of taking care of children by providing financial support. He also relied on an order dated 01.05.2012 passed by the Circuit Court of Cook County, Illinois, USA, which directed the appellant to pay 1017.55 dollars twice a month. The payment was to begin from 15.05.2012 and would terminate on 15.05.2028. This, as per the exchange rate of 2012 would be 1.94 crores and as per the 2025 exchange rate, would be 3.20 crores. Obviously therefore, the permanent alimony awarded was very reasonable. The conduct of the appellant indicates that he has not visited the minor children since 2012, i.e. almost 13 years now. He has addressed E-mail to the wife indicating that she is ill equipped to maintain the children. Page 12 of 32 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:22:18 IST 2025
NEUTRAL CITATION C/FA/2916/2019 CAV JUDGMENT DATED: 08/04/2025 undefined 3.6 Mr.Thakore, learned Counsel, would further submit that though Sec.24 application was dismissed for non- prosecution, the submission of the appellant's counsel that this would disentitle permanent alimony is misconceived as it is held by various decisions of the Hon'ble Supreme Court and High Courts that even an oral application is sufficient. Mr.Thakore, learned Counsel, would then inviting our attention to the Examination-in-Chief of the appellant where the appellant has stated that he would not want to produce I.T returns but admits that he had worked in Delloitte and KPMG. These are important documents to suggest that the award of alimony is just and proper. The observations of the Family Court based on the U.S Court's order is justified for the reasons that he has submitted earlier. 3.7 Mr.Thakore, learned Counsel, would submit that even if no issue was framed and no evidence was led, the Trial Court had before it the evidence on record, based on which it granted permanent alimony to the respondent. Page 13 of 32 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:22:18 IST 2025
NEUTRAL CITATION C/FA/2916/2019 CAV JUDGMENT DATED: 08/04/2025 undefined This Court should not remand the matter, as it has been held by several decisions of this Court that where evidence exists, the Court can decide the issue which has not been framed and remands have to be avoided particularly when in matrimonial matters strict rules of evidence are not applicable. To the aforesaid submission, he would rely on the following decisions:
(1) Ashwinkumar K. Patel vs. Upendra J.Patel, reported in AIR 1999 SC 1125.
(2) Shivakumar V. Sharanabasappa., reported in (2021) 11 SCC 277.
(3) Municipal Corpn., Hyderabad Vs. Sunder Singh., reported in (2008) 8 SCC 485.
(4) Bhairab Chandra Vs. Ranadhir Chandra., reported in AIR 1988 SC 396.
(5) Sri Gangai Vinayagar Temple Vs. Meenakshi Ammal., reported in (2015) 3 SCC 624.
4 Having considered the submissions made by the Page 14 of 32 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:22:18 IST 2025 NEUTRAL CITATION C/FA/2916/2019 CAV JUDGMENT DATED: 08/04/2025 undefined learned counsels appearing for the respective parties, the Court is required to decide as to whether:
(1) In absence of an application, either oral or written, was it proper for the Family Court to award permanent alimony in favour of the respondent? In fact, is any application, oral or written, necessary to do so.
(2) Was the Family Court right in its approach in awarding such an amount on the basis of certain findings of the U.S. Court without discussion of any material evidences which were part of the record, particularly when no issue with regard to such permanent alimony was framed. In addition thereto, when there was evidence available on record, without the parties having been examined on this issue though they were alive to it, could the Trial Court pass an order granting such alimony.
4.1 Since both the learned counsels for the respective parties have extensively relied on the provisions of Page 15 of 32 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:22:18 IST 2025 NEUTRAL CITATION C/FA/2916/2019 CAV JUDGMENT DATED: 08/04/2025 undefined Sec.24, 25 and 26 of the Hindu Marriage Act, the same are reproduced as under:
" 24. Maintenance pendente lite and expenses of proceedings.--Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable.
[Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.]
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 3 * * * 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 Page 16 of 32 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:22:18 IST 2025 NEUTRAL CITATION C/FA/2916/2019 CAV JUDGMENT DATED: 08/04/2025 undefined 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, 5 [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 proceeding 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, after 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 proceeding 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 proceeding 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.] Page 17 of 32 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:22:18 IST 2025 NEUTRAL CITATION C/FA/2916/2019 CAV JUDGMENT DATED: 08/04/2025 undefined 4.2 Section 24 of the Hindu Marriage Act deals with a situation when any proceeding is pending under the Act and when it appears to the Court that either the wife or the husband has no independent income, it may, on the application of the wife or the husband, order the respondent to pay expenses of the proceedings and monthly during the proceedings. Section 25 deals with the issue of permanent alimony. Reading the section indicates that any Court exercising jurisdiction under the Act may, at the time of passing any decree, on application made to it for the purpose by either the wife or the husband may order the respondent to pay to the applicant for her or his maintenance and support such sum as may be decided having regard to the respondents own income and property and the income and property of the applicant. Sub-sec.2 of Sec.25 indicates that it is open for a Court to change or vary the amount if there is a change in circumstance. Sec.26 talks of custody of the children. It indicates that the custody shall be given after a decree on an application made for such purpose. Page 18 of 32 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:22:18 IST 2025
NEUTRAL CITATION C/FA/2916/2019 CAV JUDGMENT DATED: 08/04/2025 undefined 4.3 Considering the decision of the Hon'ble Supreme Court in the case of Jalendra Padhiary (supra), what is noteworthy is that in an appeal arising from a judgement of the Division Bench where the Division Bench of the High Court has dismissed the appeal of the husband, on reading the facts would indicate that the appellant had filed the appeal only being aggrieved by that part of the order of the Family Court which had granted permanent alimony to the respondent - wife. Reading the aforesaid judgement in light of the findings the Family Court has arrived at in our case, we find that on the factual narration of the case there is no discussion, appreciation or reasoning on the financial earning capacity of both parties. The Hon'ble Supreme Court in the case of Sukhdev Singh (supra), while considering the applicability of Secs.24 and 25, when a marriage is declared void, in paragraphs 22 to 26 observed thus:
"22. The remedy under Section 25 of the 1955 Act is completely different from the remedy under Section 125 of the CrPC. It confers rights on the spouses of the marriage declared as void under Section 11 of the 1955 Act to claim maintenance from the other spouse. The remedy is available to both husband and Page 19 of 32 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:22:18 IST 2025 NEUTRAL CITATION C/FA/2916/2019 CAV JUDGMENT DATED: 08/04/2025 undefined wife. The principles which (1988) 1 SCC 530 apply to Section 125 of the CrPC cannot be applied to Section 25 of the 1955 Act. The relief under Section 125 of the CrPC can be granted to wife or child and not to husband.
23. Now, we come to the decision in the case of Abbayolla Reddy v. Padmamma5. The Andhra Pradesh High Court's view is based on the right of a spouse to claim maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956. This is a specific provision for the grant of maintenance to the wife. The right under Section 25 of the 1955 Act is different. The right is created in favour of both spouses once there is a decree passed under Sections 9 to 13 of the 1955 Act. The third decision is in the case of Navdeep Kaur v. Dilraj Singh6. In paragraph 10 of the said decision, the Himachal Pradesh High Court gave a very narrow meaning to the 'decree in proceedings' under the 1955 Act by holding that the expression "husband and wife" used in Section 23 must mean legally wedded husband and wife. This view is entirely contrary to the view taken in the case of Chand Dhawan1.
24. The Bombay High Court, in the case of Leelabai, dealt with the reference made to the Full Bench of the three Hon'ble Judges. The issue referred to Full Bench was the same one we are dealing with. The Full Bench of the Bombay High Court relied upon the decision in the case of Yamunabai6. In paragraph 18 of the judgment, the Full Bench has coined the term "illegitimate wife". Calling the wife of a marriage declared as void as an illegitimate wife is very inappropriate. It affects the dignity of the concerned woman. Unfortunately, the Bombay High Court went to the extent of using the words "illegitimate wife". Shockingly, in paragraph 24, the Page 20 of 32 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:22:18 IST 2025 NEUTRAL CITATION C/FA/2916/2019 CAV JUDGMENT DATED: 08/04/2025 undefined High Court described such a wife as a "faithful mistress". It is pertinent to note that the High Court has not AIR 1999 AP 19 (2003) 1 HLR 100 : 2002 SCC OnLine P&H 498 used similar adjectives in the case of husbands of void marriages. Under Section 21 of the Constitution of India, every person has a fundamental right to lead a dignified life. Calling a woman an "illegitimate wife" or "faithful mistress"
will amount to a violation of the fundamental rights of that woman under Article 21 of the Constitution of India. Describing a woman by using these words is against the ethos and ideals of our Constitution. No one can use such adjectives while referring to a woman who is a party to a void marriage. Unfortunately, we find that such objectionable language is used in a judgment of the Full Bench of a High Court. The use of such words is misogynistic. The law laid by the Full Bench of the Bombay High Court is obviously not correct.
25. Then comes the decision in the case of Savitaben Somabhai Bhatiya v. State of Gujarat & Ors7. We must note here that in this decision, this Court was dealing with the proceedings under Section 125 of the CrPC which is of a summary nature. This Court dealt with the eligibility of a spouse to claim maintenance under Section 125 of the CrPC. Therefore, none of these decisions support the stand taken by the appellant-husband.
26. An apprehension is the expression by the learned counsel for the appellant that if it is held that Section 25 of the 1955 Act also applies to void marriages, it will lead to a ridiculous result. He gave an example of a wife whose first marriage is subsisting, inducing another man to marry her. He also gave an example of a daughter getting married to her father. We must note that Sub-Section 1 of Section 25 uses the word "may". A grant of a Page 21 of 32 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:22:18 IST 2025 NEUTRAL CITATION C/FA/2916/2019 CAV JUDGMENT DATED: 08/04/2025 undefined decree under Section 25 of the 1955 Act is discretionary. If the conduct of the spouse who applies for maintenance is such that the said spouse is not entitled to discretionary relief, the Court can always turn down the prayer for the grant of permanent (2005) 3 SCC 636 alimony under Section 25 of the 1955 Act. Equitable considerations do apply when the Court considers the prayer for maintenance under Section 25. The reason is that Section 25 lays down that while considering the prayer for granting relief under Section 25, the conduct of the parties must be considered." 4.4 In paragraph 26, the Hon'ble Supreme Court observed that the grant of decree under Sec.25 is discretionary and the Court can always take into consideration the conduct of the spouse who applies for maintenance. In the case of Vinny Paramvir Parmar (supra), on the point of consideration of what would be the reasonable amount, the Apex Court held that the Court has to consider the status of the parties and their respective needs. Paragraphs 12 to 14 of the decision read as under:
"12) As per Section 25, while considering the claim for permanent alimony and maintenance of either spouse, the respondent's own income and other property, and the income and other property of the applicant are all relevant material in addition to the conduct of the parties and other circumstances of Page 22 of 32 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:22:18 IST 2025 NEUTRAL CITATION C/FA/2916/2019 CAV JUDGMENT DATED: 08/04/2025 undefined the case. It is further seen that the court considering such claim has to consider all the above relevant materials and determine the amount which is to be just for living standard. No fixed formula can be laid for fixing the amount of maintenance. It has to be in the nature of things which depend on various facts and circumstances of each case. The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay, having regard to reasonable expenses for his own maintenance and others whom he is obliged to maintain under the law and statute. The courts also have to take note of the fact that the amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and mode of life she was used to live when she lived with her husband. At the same time, the amount so fixed cannot be excessive or affect the living condition of the other party. These are all the broad principles courts have to be kept in mind while determining maintenance or permanent alimony.
13) It is not in dispute that before their marriage, the appellant-wife was working as Air Hostess with Cathay Pacific Airlines and getting sizeable income.
It is also brought to our notice that after marriage, at the instance of the respondent, she resigned from her job. The particulars furnished also show that at present she is living with her sister at Mumbai and she does not possess any immovable property at Mumbai.
14) According to the respondent-husband, at the time of filing of petition under Section 25, she suppressed her employment and income thereon and on this ground her entire case has to be rejected. The fact remains, though she was employed for a shorter period which was not stated so subsequently, she clarified that she had earned only Page 23 of 32 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:22:18 IST 2025 NEUTRAL CITATION C/FA/2916/2019 CAV JUDGMENT DATED: 08/04/2025 undefined an amount of Rs. 1.5 lakhs from casual assignments from July, 2004 to September, 2009. She also asserted that her income was not fixed or regular and she is struggling to take up casual assignments of interior decoration even though she was not formally trained for the same. She also explained that at particular time her employment with JJ Valaya Couture was only transitory in nature and was not permanent, it was not a source of regular and permanent income for her and that she had not been issued even any letter of appointment setting out the terms of employment and she further explained that at the relevant time she was earning an ad hoc remuneration of Rs. 20,000/-per month. There is no reason to either reject or disbelieve her explanation. In the same way, though she had highlighted salary income of the respondent, admittedly, those figures include allowances and other payments under various heads of salary. The respondent has also placed certificates from income tax authorities such as Form 16C etc." 4.5 In the Second Appeal filed before the Bombay High Court in the case of Vijayshree (supra), the question before the Court was whether it is necessary for a wife to file an application in writing. Considering various decisions on the issue, the Bombay High Court held that grant of permanent alimony under Sec.25 and the expression "on application made to it" would mean that the application has to be in writing or orally or there can be a written application separately praying for Page 24 of 32 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:22:18 IST 2025 NEUTRAL CITATION C/FA/2916/2019 CAV JUDGMENT DATED: 08/04/2025 undefined maintenance. In para 22, the Bombay High Court held as under:
"22. For the reasons aforestated, in the opinion of this Court, the 'application' as referred to in section 25 of the Act implies any application either in writing or oral for the prayer of permanent alimony and maintenance. The mode and form of the application under section 25 of the Act for claiming permanent alimony is immaterial. What is esential is the material before the Court to decide the same. The Court cannot pass any order of permanent alimony and maintenance in vacuum. The Court has to consider the parameters as guided in the provision itself. The relief is incidental in nature and it is not the substantive relief."
4.6 Reading the aforesaid decisions, we may consider the decisions cited by the learned counsel for the respondent. In the case of Amutha (supra), challenge was to the validity of the order of the Madras High Court which had set aside the judgement of the lower Court and granted a decree of divorce to the husband- respondent before the Hon'ble Supreme Court. Paragraphs 36 to 39 deals with the parameters of granting maintenance, which reads as under:
"36. While granting the decree of divorce, we deem it appropriate to award permanent alimony to the Page 25 of 32 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:22:18 IST 2025 NEUTRAL CITATION C/FA/2916/2019 CAV JUDGMENT DATED: 08/04/2025 undefined appellant wife and the parties' daughter. Although the appellant wife has not specifically claimed any monetary relief or maintenance during these proceedings, it is trite and equitable to grant such relief, considering the financial status of the parties, their professional backgrounds, and the larger interest of justice. The financial independence of a party does not preclude the High Court from granting maintenance if it is necessary to secure dignity, social standing, and financial stability postdivorce, especially in cases where the marriage has subsisted for a long period.
37. It is undisputed that both, the appellant and the respondent are software engineers and were earning handsomely at the time of their marriage more than two decades ago. It is reasonable to infer that their respective incomes must have increased substantially over the years.
However, considering the dynamics of their separation and the financial burdens the appellant may have borne during the protracted litigation, this Court finds it necessary to award her a lumpsum permanent alimony of Rs. 50,00,000/- (Rupees Fifty lakhs only) to secure her financial independence and ensure that she can lead her life with dignity. As observed in Kiran Jyot Maini vs. Anish Pramod Patel 11, the concept of maintenance and alimony encompasses a right to sustenance that allows the spouse to live in a manner suited to her status and standard of living, and the aim is not to penalise the husband.
38. Further, this Court recognizes the responsibility of both parents toward the well-being, education, and future prospects of their child. Although the daughter may be of an age where she is approaching independence, the financial support provided through this judgment will be instrumental in Page 26 of 32 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:22:18 IST 2025 NEUTRAL CITATION C/FA/2916/2019 CAV JUDGMENT DATED: 08/04/2025 undefined meeting her educational needs as well as expenses related to her future marriage. A sum of Rs. 50,00,000/- (Rupees Fifty lakhs only) is, therefore, awarded to the daughter for these purposes. This is in line with the principles of safeguarding the interests of children suffering under distress of such prolonged matrimonial disputes between the parents. Both parents share the duty of ensuring the daughter's well-being and future security, and this financial provision will contribute to fulfilling that duty.
39. In granting permanent alimony and financial support, this Court is mindful of the principles laid down in Rajnesh vs. Neha12. The factors to be considered while awarding maintenance or alimony include the duration of the marriage, the earning capacities of the parties, their age and health, their standard of living, and their financial and non- financial contributions to the marriage. Here, the appellant has spent substantial time during the pendency of the litigation without the emotional or financial support of the respondent. Moreover, granting a lumpsum as permanent alimony ensures finality and reduces the scope for future litigation between the parties. While the appellant is presumably capable of earning, she has undoubtedly faced financial and emotional setbacks due to the prolonged litigation and separation. Similarly, the financial provision for the daughter ensures her welfare is not compromised due to the breakdown of the marital relationship between her parents."
4.7 Even in the case of Umarani (supra) of the High Court of Madras, paragraph 9 talks about filing of a further application. True it is that no technical approach Page 27 of 32 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:22:18 IST 2025 NEUTRAL CITATION C/FA/2916/2019 CAV JUDGMENT DATED: 08/04/2025 undefined can be expected from the Courts in family matters. Reading the section itself, particularly the language of Sec.25 indicates that the words are very clear, inasmuch as, it says that on the question of permanent alimony, there has to be an application to be made for such purposes. We may agree with the submissions of the learned counsel for the respondent that there is no word in the section which stipulates that the application need necessarily have to be written. However, in the facts of the case, not even an oral request for permanent alimony was made. The parameters for deciding the issue of alimony have been set out by the Hon'ble Supreme Court in the case of Amutha (supra). The judgement may not assist us as suggested by the learned counsel for the respondent on the issue whether an application has to be made. However, reading paragraphs 36 to 38 thereof, which we have reproduced, indicates that although the wife there had not specifically claimed any monetary relief and it may be an equitable relief, the Court has to consider factors which includes duration of marriage, Page 28 of 32 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:22:18 IST 2025 NEUTRAL CITATION C/FA/2916/2019 CAV JUDGMENT DATED: 08/04/2025 undefined earning capacities, their age and health, standard of living, financial and non financial contribution to the marriage etc. 4.8 Mr.Salil Thakore, learned counsel for the respondent, has taken us through the various documents on record to press into service the fact that the appellant was financially stable and independent enough to honour the award of maintenance of Rs.70 lakhs as awarded by the Trial Court.
5 We, at this stage, on perusal of the decision under challenge, find that the Trial Court has specifically opined that neither of the parties were willing to disclose their income and resources though, documents on record suggested otherwise. The parties may be alive to the issue that in the event the Court was to order separation, some permanent alimony needed to be worked out as we have held in the earlier part of this judgement. Neither was there an application, oral or written, or a written statement that the wife was unable to maintain herself. Page 29 of 32 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:22:18 IST 2025
NEUTRAL CITATION C/FA/2916/2019 CAV JUDGMENT DATED: 08/04/2025 undefined We have been taken through the paper book and there are evidences on both sides and documents to suggest which can be a road map for the Trial Court to evolve a suitable figure for maintenance / permanent alimony, but without framing an issue thereon and directing oral evidence be recorded either at the hands of the husband or the respondent i.e. the husband and the wife i.e. the appellant and the respondent, no figure based on the U.S Courts without putting the issue for being dealt with on the basis of leading evidence, based on the suggested parameters, could have been awarded. 6 For the aforesaid reasons, the judgement and order of the Family Court, Vadodara, passed in Family Suit No. 61 of 2013 dated 16.01.2019, is hereby quashed and set aside. As far as alimony is concerned, the matter is remanded to the Family Court, Vadodara, to decide the issue of permanent alimony afresh by directing the appellant and the respondent to examine themselves orally and by leading their evidence, oral as well as Page 30 of 32 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:22:18 IST 2025 NEUTRAL CITATION C/FA/2916/2019 CAV JUDGMENT DATED: 08/04/2025 undefined documentary.
We clarify that we have not gone into the merits of the issues, namely, whether at all and if, then the quantum that can be awarded to the respondent of permanent alimony and that issue is left at liberty for the Family Court to decide afresh on the parties leading their evidences, oral as well as documentary. The Family Court is directed to decide the issue of permanent alimony in accordance with the aforesaid directions within a period of ten weeks from the date of receipt of certified copy of this order.
The appeal is allowed accordingly to the aforesaid extent.
In view of disposal of the main appeal, civil application will not survive and stands disposed of, accordingly.
(BIREN VAISHNAV,ACJ) (HEMANT M. PRACHCHHAK,J) BIMAL Page 31 of 32 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:22:18 IST 2025 NEUTRAL CITATION C/FA/2916/2019 CAV JUDGMENT DATED: 08/04/2025 undefined Further Order.
After the order is pronounced, request is made by Mr. Mehul Shah, learned Senior Advocate for the appellant that pursuant to the earlier order passed by this Court, an amount of Rs.15,00,000/- has been deposited before the registry of this Court. Mr. Shah, learned Senior Advocate requests that the said amount may be returned to the appellant.
Since, we have remanded the matter for an appropriate decision to the Family Court at Vadodara, the registry shall transmit the amount back to the Family Court at Vadodara and it shall be deposited with the Nazir of the Family Court and the Nazir of the Family Court, shall invest the said amount in the Fixed Deposit Receipt for a period of six months and the deposit shall be subject to further orders that may be passed by the Family Court in the Family Suit.
(BIREN VAISHNAV,ACJ) (HEMANT M. PRACHCHHAK,J) BIMAL Page 32 of 32 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:22:18 IST 2025