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N. Varalakshmi Vs. N.V. Hanumantha Rao - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. No. 136 of 1975
Judge
Reported inAIR1978AP6
ActsHindu Marriage Act, 1955 - Sections 13(1-A) and 25(1)
AppellantN. Varalakshmi
RespondentN.V. Hanumantha Rao
Appellant AdvocateH.C. Kulkarni, Adv.
Respondent AdvocateM. Narasiah, Adv.
Excerpt:
(i) family - judicial separation - section 13 (1-a) of hindu marriage act, 1955 - decree for judicial separation passed - no resumption of cohabitation by volition of both husband and wife within 2 years after decree passed - decree for divorce can be passed. (ii) maintenance - section 25 (1) of hindu marriage act, 1955 - wife claimed maintenance under section 25 (1) - maintenance can be granted to spouse who applied for it and whose economic condition justifies its grant - wife had no means of subsistence and depended entirely on her father - income of husband was quite sufficient - held, wife entitled to maintenance. - - this is a well settled view......whichever event happens earlier. 8. in the result, we partly allow the appeal, modify the decree passed by the learned trial judge and order the petitioner-husband to pay to the respondent-wife a sum of rs. 50/- per month as maintenance under s. 25(1) of the hindu marriage act from the date of this order until her remarriage or death whichever event happens earlier. the rest of the decree passed by the learned trial judge is confirmed. we direct that there shall be no order as to costs in this appeal in the circumstances of this case. 9. mr. narasaiah requests us to prescribe the manner in which the husband shall pay the amount of maintenance ordered by us to the wife. both the learned advocates agree that the wife shall open a bank account and that the husband shall go on.....
Judgment:

Sheth, J.

1. The petitioner - husband filed O. P. No. 47 of 1965 against the respondent - wife for judicial separation on the ground that the respondent wife had any reasonable cause deserted him. It was decided on 2nd Dec. 1966 and the decree for judicial separation was passed. Two years thereafter elapsed and on 9-12-1968 the present petition was filed by the petitioner husband for divorce. There was no resumption of cohabitation between the parties. The learned trial Judge allowed the petition and granted to the petitioner husband the decree for divorce. In this petition the respondent - wife filed an interlocutory application praying for maintenance under S. 25(1) of the Hindu Marriage Act, 1955. That claim made by the respondent - wife was in view of her conduct, rejected by the learned trial Judge.

2. It is that decree which is challenged by the respondent - wife in this appeal. Mr. Kulkarni, who appears for the wife, has contended that she has made attempts at resumption of cohabitation and that the husband had thwarted all those attempts. Therefore, according to him, the husband was entitled to a decree for divorce. The wife has led the evidence of two witnesses besides deposing herself as a witness. She has also produced seven letters in support of her case. The learned trial Judge has disbelieved the evidence of the wife and recorded the conclusion that there was no resumption of cohabitation between the parties. Mr. Kulkarni has however argued that if the party against whom a decree for judicial separation has been passed makes an attempt at resumption of cohabitation and if the party who has obtained the decree for judicial separation thwarts that attempt then the party in whose favour the decree has been passed is not entitled to a decree for divorce. We are unable to agree with this contention raised by Mr. Kulkarni. The facts of the case show that the petitioner - husband had obtained the decree for judicial separation. He was, therefore, under the orders of the court entitled to live separately from his wife.

3. Now if, during this prescribed period, the wife makes an attempt to resume cohabitation against the will of her husband and if the husband thwarts that attempt can it be said that the decree for judicial separation obtained by the husband is rendered nugatory Now the husband is entitled to live separately from his wife under the orders of the Court and if during the period of two years as contemplated by the Act the wife makes an attempt to resume cohabitation against the will of the husband, then the decree which the husband had obtained would not be nullified. That decree cannot be nullified by a unilateral act of one of the parties. Secondly it is quite probable that in order to nullify the decree the spouse against whom the decree has been passed may make an attempt at resumption of cohabitation and thereafter withdraw form the society of the other spouse. If such a mischievous move is made by the spouse against whom the decree has been passed, will the decree for judicial separation be rendered nugatory and will the other spouse be required to institute fresh proceedings for obtaining a fresh decree for judicial separation Such a situation, in our opinion, is inconceivable. The parliament, when it enacted the Hindu Marriage Act, in our opinion, did not contemplate such a situation. We are, therefore, of the opinion that within the meaning of sub-sec. (1-A) of S. 13 of the Hindu Marriage Act resumption of cohabitation between the parties after decree for judicial separation has been passed is resumption of cohabitation by the meeting of the minds, by volition of both the parties or by reconciliation. Resumption of cohabitation within the meaning of S. 13 (1-A) is not a unilateral attempt made by one of the one of the spouses against the will of the other to resume cohabitation. To take such a view of S. 13(1-A) is to introduce into that section a number of mischiefs which the parliament did not contemplate. Therefore, though the husband, who obtained the decree for judicial separation might be morally wrong in not resuming cohabitation when the wife wanted it and thereby wanted to bring about reconciliation still the law entitled him to resist the attempts of his wife to resume cohabitation. Therefore, in any view of the matter the husband was entitled to decree for divorce in as much as there was no resumption of cohabitation by volition of both the parties within two years after the decree for judicial separation was passed. The learned Judge was, therefore, justified in passing the decree for divorce and we uphold it.

4. So far as the claim for maintenance under S. 25(1) is concerned, the learned Judge has taken that the conduct of wife disentitles her to any maintenance. There is no doubt about the fact that under S. 25(1) depending upon the claimant's economic condition he or she is entitled to maintenance from the other. Divorce which an end to the matrimonial relationship of husband and wife does not ipso facto debar a spouse from claiming maintenance from the other. This is a well settled view. In Govind Rao v. Anandibai, : AIR1976Bom433 , Mr. Justice Kania has taken a Gujarath similar view. In Dharamshi Premji v. Bai Sakar Kanji, : AIR1968Guj150 a Division Bench of the High Court has taken the view that under S. 25(1) of the Hindu Marriage Act, permanent alimony can be granted even to an erring spouse and the mere fact that the wife did not comply with the decree for restitution of conjugal rights ( and that was the cause for passing a decree for divorce against her ) cannot by itself disentitle her to claim permanent alimony under the section. In Nuthulal v. Mana Devi, AIR 1971 Raj 208, it has been held by a Division Bench of Rajasthan High Court that an application of permanent alimony is maintainable even where the decree for divorce or annulment of marriage, has been passed even though in such a case the relationship of husband and wife ceased to exist between the parties after the passing of the decree. In Minarani v. Dasarath : AIR1963Cal428 it has been held by a Division Bench of the Calcutta High Court that after the decree for divorce or nullity of marriage has been passed an order for separate maintenance under S. 25(1) can be made. The common minimum which emerges from a review of the above four decisions is that after the decree for divorce has been passed and the relationship of husband and wife has ceased to exist between the parties maintenance or alimony can be granted to the spouse who applies for it and whose economic condition justifies its grant. The contention raised by Mr. Narasaiah, that such an application is not maintainable cannot therefore, be upheld.

5. The second condition raised by Mr. Narasaiah is that we must consider that the conduct of the wife which according to him disentitles her from claiming any maintenance after the decree for divorce has been passed. We are of the opinion, that courts are entitled to take into consideration the conduct of party applying for maintenance after the decree for divorce has been passed. If the conduct is abominable it may disentitle the applying party from getting any maintenance. What Mr. Narasaiah, has tried to press into service is that the wife deserted the husband for a fairly long period of time and that that circumstances forced the husband to file the petition for judicial separation. He has further pressed into service the circumstances that after the decree for judicial separation was passed the husband waited for two years and then applied for decree for divorce and obtained it. This conduct of the wife, according to him, completely disentitles the wife from getting any maintenance. We do not think so. Undesirable conduct on the part of a spouse may vary in intensity from spouse to spouse. The conduct, it is such as would disentitle the applying spouse to any maintenance, can be taken into consideration only to determine the quantum of maintenance. The mere fact that the wife unjustly deserted the husband which ultimately led the husband to obtain decree for divorce is not abominable as to disentitle her from claiming any maintenance whatsoever. The learned trial Judge was therefore in error in rejecting the claim for maintenance made by the wife.

6. The last argument which Mr. Narasaiah, has raised is that the petition for divorce which the husband filed was first dismissed. Before it was dismissed an interlocutory application was filed by the wife for maintenance under S. 25(1) of the Hindu Marriage Act. The learned trial judge had made no order on that interlocutory application. The husband appealed to the High Court against the dismissal of his petition for divorce. This court set aside the order of dismissal made by the trial Court and remanded the petition for a fresh trial to the trial court. According to Mr. Narasaiah, with the dismissal of the husband's petition for divorce the interlocutory application made by the wife for maintenance stood dismissed and it could not revive automatically with the revival of the petition for divorce ordered by the High Court on remand. In our opinion, there is some error or fallacy in reasoning which Mr. Narasaiah, has adopted. If the learned trial Judge, had rejected the interlocutory application made by the wife and if thereafter the petition for divorce filed by the husband was dismissed and while remanding the petition to the trial Court, if the High Court had not dealt with the order made by the trial court on the interlocutory application the argument raised by Mr. Narasaiah, would have been required to be upheld because an order made on the interlocutory application stands unless it is set aside by a competent court. Setting aside the final order made in a petition or suit does not necessarily mean that all interlocutory orders made threrein are also set aside. If a competent court sets aside the final order and remands a case and does not set aside the interlocutory order it may be in a given case open to a party to make a fresh application for the purpose for which it was made earlier before its dismissal. In the instant case, however, the wife did not make any fresh application, but it does not come in the way of the because the interlocutory application which she made to the trial court for granting maintenance under S. 25(1) was not dealt with by the learned Judge. It was not dismissed by an exist order of the court. It ceased to exist merely because the petition for divorce was dismissed by the trial court. Therefore, as soon as this court set aside the order of dismissal and remanded the petition for divorce to the trial court the interlocutory application of the wife with which the learned trial Judge had not dealt, automatically, in our opinion, revived. Therefore, it was not necessary for the wife to make a fresh application for obtaining the relief which claimed earlier. We are, therefore, not able to uphold the argument raised by Mr. Narsaiah, against the consideration on merits of the claim made by the wife.

7. So far as the merits of the claim are concerned, we find that the wife has no means of subsistence. She depends entirely on her father to maintain herself. So as far as the husband is concerned he is earning a sum of Rs. 437-50 paise per month. He is required to maintain that amount himself and his mother. It is quite probable that in future he may remarry. Out of this amount he also pays a sum of Rs. 130 as house rent. He is working as a teacher in the city of Secunderabad. There is one more fact which weighs with us in granting the claim made by the wife. During the period intervening between the decree for judicial separation and the decree for divorce the husband had made no attempts whatsoever at the reconciliation or at the restoration of the matrimonial tie between him and his wife. This negative conduct on the part of the husband shows that he was more out to obtain the decree for divorce than to restore the matrimony with his wife. Taking into account this conduct and the income the husband earns and the liability he has to discharge, we think that he should pay to his wife a sum of Rs. 50/- (Rupees fifty) per month as maintenance, as long as she lives or until she re-marries whichever event happens earlier.

8. In the result, we partly allow the appeal, modify the decree passed by the learned trial Judge and order the petitioner-husband to pay to the respondent-wife a sum of Rs. 50/- per month as maintenance under S. 25(1) of the Hindu Marriage Act from the date of this order until her remarriage or death whichever event happens earlier. The rest of the decree passed by the learned trial Judge is confirmed. We direct that there shall be no order as to costs in this appeal in the circumstances of this case.

9. Mr. Narasaiah requests us to prescribe the manner in which the husband shall pay the amount of maintenance ordered by us to the wife. Both the learned advocates agree that the wife shall open a bank account and that the husband shall go on depositing in that account every month the sum of Rs. 50/- ordered by us. The monthly deposits of the amounts of maintenance ordered by us shall be made in the aforesaid manner on or before the 10th day of every month commencing from July, 1977.

10. Appeal partly allowed.


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