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Permanent alimony if the wife’s adultery is proved in Court?

Rajasthan High Court

Vinod Kumar vs Smt. Kaushalya on 30 August, 1995
Equivalent citations: I (1996) DMC 603, 1996 (2) WLC 512

Author: R Yadav
Bench: R Yadav
JUDGMENT R.R. Yadav, J.

1. The instant revision is filed against the order dated 10.4.1995 passed by learned District Judge, Pratapgarh in Civil Misc. Case No. 16/94 by means of which he allowed the interim maintenance Under Section 24 of the Hindu Marriage Act, 1955 @ Rs. 250/- per month pending litigation from 3.9.1993 and also allowed Rs. 1000/-to Smt. Kaushalya to meet the expenses of the suit filed by the revisionist seeking divorce against her.

2. Learned Counsel for the revisionist wanted to place certain affidavits filed in support of aforesaid application moved Under Section 24 of the Hindu Marriage Act, 1955 by Smt. Kaushalya with a view to reappraise those evidence in a revision.

3. In my considered opinion re-appraisal of the evidence is not possible Under Section 115 C.P.C. In support of his argument the learned Counsel for the revisionist placed reliance on a decision rendered by learned Single Judge of this Court in the case of Kishna v. Gulab reported in LLR1988 (1) 143.

4. In the case of Kishna (supra) the learned Single Judge was of the opinion that the Trial Court without coming to a finding as to what was monthly income of husband simply observed that from the submissions made before the Court it prima facie appears that husband is well to do person having 13 bighas of agricultural land and four shops which were on rent, therefore, he must be earning Rs. 700-800 per month. In that case it was held that the aforesaid finding about income of husband will not be considered to be a proper finding and it was held to be perverse and order for maintenance pendente lite was set aside.

5. A deeper understanding of the aforesaid decision indicates that after recording the aforesaid finding the learned Single Judge of this Court was of the opinion that such a finding falls within the jurisdictional error as contemplated Under Section 115(1)(a), (b) and (c), therefore, the order passed by the Trial Court was interfered on mere jurisdictional error.

6. It is also apparent from the reading of the aforesaid judgment that the decision was given by learned Single Judge on 18.9.1987 in the case of Kishna (supra) but the attention of the learned Single Judge was not brought to the amended proviso (a) and (b) of Sub-section (1) of Section 115 C.P.C. according to which now under amended Section 115 C.P.C. for maintainability of a revisional jurisdictional error is not sufficient unless it is further established that if the order impugned is allowed to stand it will occasion either failure of justice or irreparable injury against whom it is passed.

7. In my considered opinion in the present case if the order passed by learned Trial Court is allowed to stand it will neither occasion a failure of justice nor irreparable loss to the revisionist, therefore, the facts of the aforesaid case are not applicable in the facts and circumstances of the present case.

8. The next contention of the learned Counsel for the revisionist is that since the suit for divorce has been filed against Smt. Kaushalya on the ground of adultery, therefore, she is not entitled for interim maintenance as contemplated Under Section 24 of the Hindu Marriage Act. In support of his aforesaid contention learned Counsel for the revisionist placed reliance on a decision rendered by Division Bench of Calcutta High Court in the case of Sachindra Nath Biswas v. Smt. Banamala Biswas and Anr. reported in AIR 1960 Calcutta 575.

9. The aforesaid argument of the learned Counsel for the revisionist is wholly misplaced and misconceived. It appears to me that the learned Counsel for the revisionist deliberately without any basis is making an effort to persuade me to extend the principles of Section 25(1) of Hindu Marriage Act, 1955 to the principles applicable under Section 24 of the aforesaid Act which is not acceptable.

10. As a matter of fact in the case of Sachindra Nath Biswas (supra) the question about interim maintenance as contemplated Under Section 24 of the Hindu Marriage Act, 1955 was not in dispute at all but the question for determination was about permanent alimony and maintenance as contemplated Under Section 25 of the said Act at the time of passing of decree or at any time subsequent thereto after trial of the suit.

11. it is surprising as to how the learned Counsel for the revisionist is placing reliance on the case of Sachindra Nath Biswas (supra) which has no bearing on the merit of the interpretation of Section 24 of the Hindu Marriage Act, 1955 which provides about maintenance pendente lite and expenses of proceedings during the pendency of the suit.

12. In my considered opinion simply because a suit for divorce is filed on the allegations of adultery the wife will not be deprived off her right to get maintenance pendente lite and expenses of proceeding to defend herself. It is true that if suit for divorce is decreed after trial on the ground of adultery then wife will not be entitled to get permanent alimony and maintenance under Section 25 of the Hindu Marriage Act because adultery alleged against her is proved. But at the stage of the proceeding Under Section 24 of the Hindu Marriage Act, 1955 adultery is only alleged. There is large gap between “adultery alleged” at the stage of proceeding Under Section 24 of the aforesaid Act and “adultery found to be proved by Court after trial” at the stage of proceeding Under Section 25 of the said Act.

As a result of the aforementioned discussion the instant revision lacks merit and is hereby dismissed in limine.

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