Whether permanent alimony can be granted after dismissal of divorce petition?

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

D.B. Civil Miscellaneous Appeal No. 4700 / 2016

Poonam Joshi S/o Satish Joshi, aged 47 years, by caste Brahmin,
Resident of Lotkheri, Thesil Bhanpur, District Mandsaur.—-Appellant
Versus
Smt Archana Joshi W/o Poonam Chand, aged 34 years, by caste
Brahmin, d/o Shambuji, Resident of Jhalawar, presently Resident of 265, Basant Bihar, Kota. —–Respondent

For Appellant : Mr. Sanjay Mehrishi with Mr. Timan Singh For Respondent : Mr. Arvind Bhardwaj.

HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE VIJAY KUMAR VYAS

Order on Board Per Hon’ble The Chief Justice 09/02/2017 The present appeal arises from order dated 20.07.2016 passed by the Family Judge, Jhalawar allowing Miscellaneous Case No.230/2012 granting permanent alimony under Section 25 of the Hindu Marriage Act, 1955 (hereinafter called the ‘Act’) notwithstanding the dismissal of the divorce application preferred by the Appellant.

Learned Counsel for the Appellant submits that if the application for divorce preferred by the Appellant had been dismissed, the question for grant of permanent alimony under Section 25 of the Act does not arise. It is only when a decree is passed under any of the provisions of Section 9 to 13 of the Act, (2 of 8) [CMA-4700/2016] can permanent alimony be granted. Reliance is placed on AIR 2005 Supreme Court 422 (Ramesh Chandra Rampratapji Daga vs. Rameshwari Ramesh Chandra Daga) and AIR 1973 Raj.3 (Purshotam Kewalia Vs. Smt. Devki). The second submission is that dismissal of a suit for divorce does not amount to a decree within the meaning of Section 23 of the Act.

Counsel for the Respondent submits that the order granting permanent alimony suffers from no infirmity. It follows AIR 1988 Rajasthan 12 (Sukhdev Vs. Santos) which itself relies on AIR 1991 Bombay 440 (Modilal Kaluramji Vs. Laxmi Modilal Jain) holding that the words “any decree” in Section 25 of the Act would include the rejection of a divorce application also. The order of the Family Judge therefore calls for no interference.

Alternatively it was submitted that if the application under Section 25 of the Act is held not to have been maintainable, the Court has ample powers to treat the application as one under Section 18 of the Hindu Adoption and Maintenance Act, 1956 (hereinafter called the ‘Adoption and Maintenance Act’) to prevent multiplicity of proceedings on the same issue between the same parties as the Respondent cannot be denied the claim to maintenance. The Object of both the Acts is beneficial as they seek to protect the interest of an estranged wife who may have no source of income or survival. A construction which advances the purpose rather than a stultified and narrow interpretation should be given as otherwise the Respondent will stand to be seriously prejudiced in having to again pursue fresh litigation with all its necessary concomitants of time and money.

(3 of 8) [CMA-4700/2016] The next submission was that any erroneous description of the provision of law in the application seeking maintenance should not be allowed to prejudice the claim so long as the power exists to grant maintenance in one or the other law for the purpose of advancing justice and which will mean and include consideration from the date of presentation of the original application under Section 25 of the Act.

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We have considered the submissions on behalf of the parties.

In view of the nature of the question of law involved, the facts of the case shall be considered only to the extent necessary for purposes of the present order. The application for divorce preferred by the Appellant under Section 13 of the Act was rejected on 11.11.2010. During the pendency of the divorce proceedings maintenance pendente lite was granted under Section 24 of the Act at the rate of Rs.2500/- per month. On 11.11.2010 itself, the Respondent filed an application under Section 25 of the Act for grant of permanent alimony. An objection was taken that if the application for divorce had been rejected, the question for grant of permanent alimony under Section 25 of the Act did not arise. The learned Family Judge following Sukhdev(supra) which in turn followed Sadanand Sahadeo Rawool (supra) held that the dismissal of the divorce application was no bar to grant of permanent alimony under Section 25 of the Act awarding a sum of Rs. 5,000/- per month.

We have given our thoughtful consideration to the issue and are satisfied to hold that the question whether permanent (4 of 8) [CMA-4700/2016] alimony can be granted or not if the application for divorce itself had been dismissed is no more res-integra and stands decided in (1993) 3 SCC 406 (Chand Dhawan (Smt.) Vs. Jawaharlal Dhawan) followed in Ramesh Chandra Rampratapji Daga (supra).

In Chand Dhawan (supra) the application for mutual divorce filed under Section 13B of the Act was dismissed. The husband then filed an application for divorce under Section 13 of the Act inter alia on grounds of adultery. The order for maintenance pendente lite not having been complied led to stay of the divorce proceedings till compliance. The wife then filed an application for permanent alimony under Section 25 of the Act. After considering the provisions of Section 25 of the Act and noticing the divergence of views taken by different High Courts it was held as follows :

“25. We have thus, in this light, no hesitation in coming to the view that when by court intervention under the Hindu Marriage Act, affection or disruption to the marital status has come by, at that juncture, while passing the decree, it undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at that time. It also retains the power subsequently to be invoked on application by a party entitled to relief. And such order, in all events, remains within the jurisdiction of that court, to be altered or modified as future situations may warrant. In contrast, without affectation or disruption of the marital status, a Hindu wife sustaining` that status can live in separation from her husband, and whether she is living in that state or not, her claim to maintenance stands preserved in codification under section 18 (1) of the Hindu Adoptions and Maintenance Act. The court is not at liberty to grant relief of maintenance simplicitor obtainable under one Act in proceedings under the other. As is evident, both the statutes are codified as such and are clear on their subjects and by liberality of interpretation inter- changeability cannot be permitted so as to destroy the distinction on the subject of maintenance.”
(5 of 8) [CMA-4700/2016] The plea that to prevent multifariousness and multiplicity of proceedings, if the application under Section 25 of the Act was not maintainable the order may be treated as one having been passed under Adoption and Maintenance Act was specifically negated holding :-
“28. On the afore-analysis and distinction drawn between the fora and perceptives, it is difficult to come to the view that a claim which is ancilliary or incidental in a matrimonial court under the Hindu Marriage Act could be tried as an original claim in that court; a claim which may for the moment be assumed as valid, otherwise agitable in the civil court under the Hindu Adoptions and Maintenance Act, 1956. As said before, these two enactments keeping apart, the remaining two, i.e., Hindu Succession Act, 1956 and Hindu Minority and and Guardianship Act, 1956 are a package of enactments, being part of one socio-legal scheme applicable to Hindus. When distinctive claims are covered distinctly under two different statutes and agitable in the courts conceived of thereunder, it is difficult to sustain the plea that when a claim is otherwise valid, choosing of one forum or the other should be of no consequence. These are not mere procedural technicalities or irregularities, as termed by one line of reasoning by some of the High Courts. These are matters which go to the root of the jurisdiction. The matrimonial court, a court of special jurisdiction, is not meant to pronounce upon a claim of maintenance without having to go into the exercise of passing a decree, which implies that unless it goes onwards, moves or leads through, to affect or disrupt the marital status between the parties. By rejecting a claim, the matrimonial court does make an appealable degree in terms of section 28, but that neither affects nor disrupts the marriage. It certainly does not pass a decree in terms of section 25 for its decision has not moved or done anything towards, or led through, to disturb the marriage, or to confer or take away any legal character or status. Like a surgeon, the matrimonial court, if operating, assumes the obligation of the post operatives, and when not, leaves the patient to the physician.”
Unfortunately the learned Family Judge appears to have been deprived of proper assistance in adjudication as Modilal Kaluramji (supra) stood overruled in Chand Dhawan(supra). Even (6 of 8) [CMA-4700/2016] this Court was deprived of proper assistance in Sukhdev (supra) when its attention was neither invited to Chand Dhawan(supra) or that Sadanand Sahadeo Rawool (supra) also stood overruled in Chand Dhawan (supra). The Court was again deprived of proper assistance when its attention was not invited to AIR 1973 Rajasthan 3 (Purshotam Kewalia Vs. Smt. Devki) which is fully in consonance with the view taken in Chand Dhawan (supra).
The Appellant had placed reliance on 2008(III) MPWN 78 (Shyamlal Meena Vs. Smt. Durgabai Meena) which followed Chand Dhawan(supra). Unfortunately in absence of proper assistance the Family Judge cursorily distinguished Shyam Lal Meena (supra) as not applicable without reasons.

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The submission on behalf of the Respondent that the order may be deemed to have been passed under the Adoption and Maintenance Act having been expressly rejected in Chand Dhawan (supra) the observations therein are considered apposite for the present also as follows :

“29. On the afore analysis we have been led to the conclusion that the step of the wife to move the court of Additional District Judge, Amritsar for (grant of maintenance under section 25 of the Hindu Marriage Act was ill-advised. The judgment of the High Court under appeal could be no other than the one that it was in the present state of law and the facts and circumstances. It is still open to the wife to stake her claim to maintenance in other fora. The judgments of the High Courts earlier quoted, and others which have been left out, which are not in line with our view are over- ruled. The earlier and predominant view was the correct one and the later an aberration; something unfortunate from the precedential point of view. The appeals thus inevitably have to and are hereby dismissed, but without any order as to costs. ”
(7 of 8) [CMA-4700/2016] The present appeal has therefore to be allowed. The order dated 27.07.2016 of the learned Family Judge is held to be unsustainable and is set aside.
Nothing prevents the Respondent from preferring a fresh application under Section 18(1) of the Hindu Adoption and Maintenance Act. If such an application is filed, it has to be decided by the learned Family Judge on its on merits in accordance with law after hearing the parties without being prejudiced by the earlier order.
The Appellant is a practicing advocate. It is expected that he will live up to the high standards of the Bar and will not conduct himself in the manner of an ordinary litigant by realising his responsibilities towards the justice dispensation system. Since this order is being passed in presence and after hearing the Counsel representing him, we expect the Appellant to dutifully enter appearance in any application preferred under Section 18(1) of the Act after it is brought to his attention adequately by the Respondent in a proper mode and manner without taking shelter of procedures and without unnecessary objections with regard to service of notice etc. We may not be understood to have meant that notice need not be issued. In this context, we may only advert to the similarity of the facts in Ramesh Chandra (supra) where the Appellant was an Income Tax Practitioner and the discussion in this regard at paragraph 22 of the judgment.

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The Family Judge will not grant unnecessary adjournments except for reasons recorded in the order sheet to his satisfaction so that any such application can be finally decided (8 of 8) [CMA-4700/2016] within a maximum period of 6 to 8 months from the date of registration of such application.

The appeal is allowed.

Copy of this order be forwarded to the Director, State Judicial Academy for presentation before the Committee on Sensitisation for Family Court matters.

(VIJAY KUMAR VYAS)J. (NAVIN SINHA)C.J.

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