Punjab-Haryana High Court
(O&M;) Mukesh Kumar vs Sunita on 3 December, 2014
Author: Ajay Kumar Mittal
Bench: Ajay Kumar Mittal
FAO-M-46 of 2010 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
FAO-M-46 of 2010 (O&M)
Date of Decision: 3.12.2014
Mukesh Kumar
....Appellant.
Versus
Smt. Sunita
...Respondent.
CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.
HON'BLE MRS. JUSTICE SNEH PRASHAR.
PRESENT: Mr. Rahul Vats, Advocate for the appellant.
None for the respondent.
AJAY KUMAR MITTAL, J.
1. This appeal has been filed by the appellant-husband challenging the judgment and decree dated 11.12.2009 passed the District Judge, Sonipat to the extent of giving directions to him to pay a sum of ` 1 lac to the respondent-wife towards permanent alimony, while granting divorce in his favour in a petition filed under Section 13 of the Hindu Marriage Act, 1955 (in short "the Act").
2. The appellant filed a petition under Section 13 of the Act for dissolution of marriage by a decree of divorce alleging therein that the marriage between the parties was solemnized on 31.1.2006 as per Hindu rites and ceremonies at village Siwana Mal, Tehsil Safidon, District Jind. The said marriage was consummated by the parties. Out of the wedlock, one baby boy, namely, Akash was born. The said child is in the custody of the appellant. The respondent was in the habit of harassing and torturing the appellant and her parents interfered in the affairs of the family of the appellant. In August, 2006, the father-in-law of the appellant took the respondent along with her saying that her mother was GURBACHAN SINGH 2015.02.18 14:07 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-46 of 2010 (O&M) -2- sick. The appellant took her back with the help of the respectables of the society. Thereafter, a criminal complaint for the offences under Sections 498-A, 406 of the Indian Penal Code was filed against the appellant and his family members. Another petition under Section 125 of the Code of Criminal Procedure for the grant of maintenance which was dismissed as withdrawn on 30.4.2007. On 5.8.2007, the respondent left her matrimonial home without the knowledge and consent of the appellant. Thereafter, she did not return to her matrimonial home. The efforts made by the appellant to bring her back failed. Accordingly, the appellant filed the petition for divorce. The said petition was contested by the respondent by filing a written statement. Besides raising various preliminary objections, it was pleaded that the appellant and his family members were greedy persons and they demanded a motorcycle and ` 50,000/- in cash. Since their illegal demands were not fulfilled, they started harassing and torturing the respondent. The other averments made in the petition were denied and a prayer for dismissal of the same was made. From the pleadings of the parties, the trial court framed various issues and on appreciation of the oral as well as documentary evidence led by the parties, allowed the divorce petition vide judgment and decree dated 11.12.2009. While dissolving the marriage between the parties by a decree of divorce, the trial court directed the appellant to pay ` 1 lac to the respondent towards permanent alimony. Hence, the present appeal to the extent of paying ` 1 lac towards permanent alimony to the respondent.
3. Learned counsel for the appellant submitted that the trial court had wrongly directed the appellant to pay ` 1 lac to the respondent towards permanent alimony particularly when there was neither any GURBACHAN SINGH 2015.02.18 14:07 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-46 of 2010 (O&M) -3- application which was moved nor any prayer made for permanent alimony by the respondent.
4. We have heard learned counsel for the appellant.
5. It would be advantageous to refer to Section 25 of the Act to effectively adjudicate the present appeal. It reads thus:-
"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 in such manner as the court may deem just.GURBACHAN SINGH
2015.02.18 14:07 I attest to the accuracy and authenticity of this document High Court Chandigarh
FAO-M-46 of 2010 (O&M) -4-
(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."
6. Section 25(1) of the Act empowers the matrimonial court to grant permanent alimony and maintenance at the time of passing the decree or at any time subsequent thereto on an application made either by the husband or the wife. The court shall award to the applicant for his or her maintenance and support such gross amount during the life time of the applicant keeping in view the respondent's income and other property, if any, and also the income and other property of the applicant. Besides the aforesaid, the conduct of the parties and other circumstances of the case would also be relevant factors for assessing just permanent alimony and maintenance. Further, the payment of this amount may be secured by creating a charge on the immovable property of the respondent. Under sub-section (2) of Section 25 of the Act, the court can vary, modify or rescind any order made under sub section (1) in view of changed circumstances of either party on an application moved in that behalf. According to sub section (3) of Section 25 of the Act, in the event of the party in whose favour an order has been made under this section remarries or where such party is wife, she has not remained chaste and where such party is husband, he has had sexual intercourse with any women outside wedlock, the order at the instance of GURBACHAN SINGH 2015.02.18 14:07 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-46 of 2010 (O&M) -5- the other party may be varied, modified or rescinded in the manner as the court may deem fit.
7. Considering the necessity of a written application for claiming permanent alimony and maintenance under Section 25 of the Act, Bombay High Court in Sadanand Sahadeo Rawool v. Sulochana Sadanand Rawool, AIR 1989 Bombay 220 observed that application need not necessarily be in writing but can be oral as well. The relevant observations recorded therein read thus:-
"7. This takes me to the contention that the trial Court should not have granted the relief of alimony to the wife. The argument is that this could be done only upon an application moved by the wife. The application had to be in writing and the record did nor reveal the existence of any application by the wife seeking an alimony before the dismissal of the husband's petition Section 25 of the Hindu Marriage Act , 1955, to the extent relevant reads thus;-
"Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, upon an application made to it for the purpose of either the wife or the husband, s 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 GURBACHAN SINGH 2015.02.18 14:07 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-46 of 2010 (O&M) -6- 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........."
The Section when it speaks of an application does not specify that the same has to be in writing. An application can be in writing as also by word of mouth. The fact that the trial Court passed an order for alimony would imply that an oral application had been made to it."
8. In Surajmal v. Rukminibai AIR 2000 Madhya Pradesh 48, interpreting the scope of Section 25 of the Act, it was held as under:-
"7. XX XX XX ..... The Act has adopted a broader approach while dealing with matrimonial cases. Therefore, the words 'on application made to it used in Sub-section (1) of Section 25 will have to be interpreted in a broader view. The word 'on application made to it should not be construed in a strict sense. It does not mean always that such spouse is required to present a separate application for making a prayer for permanent alimony. After all, provisions of Section 25 of the Act according to me have been introduced in the Act for the purpose of protecting the interest of such spouse against whom the Court has passed the decree. When such spouse happens to be a wife, the society and law would not afford to see such spouse GURBACHAN SINGH 2015.02.18 14:07 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-46 of 2010 (O&M) -7- seeking sanctuary on the streets at the stake of losing her soul and virtues. When the decree of divorce is passed, the law would be definitely interested in seeing that some arrangement has been made for the purpose of enabling such spouse-wife to have some money with her which would enable her to live safely and with dignity of womanhood. Such provisions would be made if she is left to maintain herself with a child begotten out of the wedlock which has been dissolved by decree of divorce dissolving such marriage. It would create difficult situation for such discarded wives and children increasing the possibility of vagaries and unchasisty. Therefore, it will have to be seen whether a prayer has been made by such spouse any way in the written statement or by separate application. Keeping in view the spirit of the enactment of the Act, it would be safe if such a prayer is made in the written statement."
9. We are in agreement with the view expressed in Sadanand Sahadeo Rawool and Surajmal's cases (supra). The approach to be adopted in matrimonial cases has to be practical and not based on mere technicalities. The expression "on application made to it" occurring in Section 25 of the Act should not be construed narrowly but keeping in view the intent of the legislature in enacting this provision. The purpose behind this provision appears to be to safeguard the interest of the spouse against whom the decree had been passed. In our opinion, the sine qua non for grant of permanent alimony and maintenance under this GURBACHAN SINGH 2015.02.18 14:07 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-46 of 2010 (O&M) -8- section is the prayer made in that regard whether in writing or orally. In other words, there can either be a separate written application claiming permanent alimony and maintenance under Section 25 of the Act or in the written statement or even by oral prayer.
10. Having enunciated the legal position hereinabove, it may be noticed that the trial court while granting divorce to the appellant directed him to pay ` 1 lac to the respondent-wife as permanent alimony. In the absence of anything to the contrary, it would, thus, be concluded that the trial court had awarded the aforesaid amount on the oral prayer of the wife and, therefore, no infirmity or illegality could be said to be there in the award of the same. In so far as quantum of ` 1 lac which has been awarded as permanent alimony to the respondent-wife is concerned, it cannot be said to be excessive in any manner. Consequently, the instant appeal is hereby dismissed.
(AJAY KUMAR MITTAL)
JUDGE
December 3, 2014 (SNEH PRASHAR)
gbs JUDGE
GURBACHAN SINGH
2015.02.18 14:07
I attest to the accuracy and
authenticity of this document
High Court Chandigarh