Punjab-Haryana High Court
Colonel Surinder Pal Singh Mahi vs Jaswinder Kaur on 3 September, 2009
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