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Ramadevi Vs. Ashok Kumar Mohanlal Vyas - Court Judgment

LegalCrystal Citation
SubjectFamily;Criminal
CourtMadhya Pradesh High Court
Decided On
Case NumberL.P.A. No. 22 of 1993
Judge
Reported inI(1994)DMC286
ActsHindu Marriage Act, 1955 - Sections 9, 13(1), 13(1)(A) and 25(1); Indian Penal Code (IPC) - Sections 34, 294, 323 and 494
AppellantRamadevi
RespondentAshok Kumar Mohanlal Vyas
Appellant AdvocateR.G. Waghmare, Sr. Adv., ;R.R. Waghmare and ;Shubhada Waghmare, Advs.
Respondent AdvocateNone
DispositionAppeal dismissed
Cases ReferredChand Dhawan v. Jawaharlal Dhawan
Excerpt:
.....decree was not sustainable on the ground of failure to comply with the decree of restitution of conjugal rights but has upheld the decree on the ground of cruelty. section 25 of the hindu marriage act, 1955 very clearly states that any court exercising jurisdiction under the act, may at the time of passing any decree or at the time subsequent thereto, order that the respondent shall pay to the applicant maintenance. this clearly shows that an application under section 25(1) of the act can be made and decided at the time of passing of decree or at any time subsequent thereto......hindu marriage act, 1955, the question of grant of permanent alimony has to be considered at the time of passing of a decree. in support of his contention, learned counsel cited decision of the supreme court in chand dhawan v. jawaharlal dhawan, (1993) 3 scc, 406.4. let us first take up the point of grant of permanent alimony. section 25 of the hindu marriage act, 1955 very clearly states that any court exercising jurisdiction under the act, may at the time of passing any decree or at the time subsequent thereto, order that the respondent shall pay to the applicant maintenance. this clearly shows that an application under section 25(1) of the act can be made and decided at the time of passing of decree or at any time subsequent thereto. there is nothing in the aforesaid decision which.....
Judgment:

R.D. Shukla, J.

1. Heard Shri R.G. Waghmare, Senior Advocate with Shri R.R. Waghmare and Smt. Shubhada Waghmare, learned Counsel for the appellant on admission.

2. This is an appeal from the appellate judgment and decree passed by the learned Single Judge of this Court in First Appeal No. 49/92, arising out of the proceedings for divorce under the Hindu Marriage Act of 1955. The respondent-husband Ashok Kumar Vyas had claimed a decree of divorce on two grounds: (1) Failure to comply with the decree of restitution of conjugal rights and (2) cruelty practised by the wife against him. The Trial Court granted the decree of restitution of conjugal rights and (2) cruelty practised by the wife against him. The Trial Court granted the decree on both the grounds. On appeal the learned Single Judge has found that the decree was not sustainable on the ground of failure to comply with the decree of restitution of conjugal rights but has upheld the decree on the ground of cruelty. This appellate decree passed by the learned Single Judge is under challenge before us in this Letters Patent Appeal.

3. Shri Waghmare submitted that the decree on the ground of cruelty was also not sustainable as whatever done by the appellant was to exercise her own right of complaining against the wrong done to her. According to him the inference having practised cruelty cannot be drawn from the circumstances of the case. He also submitted that the decree cannot be sustained also for the reason that the question of grant of permanent alimony has not been considered while passing the decree. According to him under Section 25 of the Hindu Marriage Act, 1955, the question of grant of permanent alimony has to be considered at the time of passing of a decree. In support of his contention, learned Counsel cited decision of the Supreme Court in Chand Dhawan v. Jawaharlal Dhawan, (1993) 3 SCC, 406.

4. Let us first take up the point of grant of permanent alimony. Section 25 of the Hindu Marriage Act, 1955 very clearly states that any Court exercising jurisdiction under the Act, may at the time of passing any decree or at the time subsequent thereto, order that the respondent shall pay to the applicant maintenance. This clearly shows that an application Under Section 25(1) of the Act can be made and decided at the time of passing of decree or at any time subsequent thereto. There is nothing in the aforesaid decision which takes away the right of a claimant to permanent alimony or maintenance to apply for it subsequent to passing of the decree. There is, therefore, no force in the contention that the decree is vitiated for non-consideration of grant of permanent alimony.

5. On merits it is stated that the facts proved do not amount to cruelty supplying a ground for divorce. The learned Single Judge has found that a false complaint was made against the husband by the wife. On the report of the wife, the husband and his father were arrested. The complaints were lodged by her with the police and in the Court Under Sections 294, 323 of the Indian Penal Code. They were found to be without any substance A private complaint was filed in the Court charging the husband with commission of offences punishable under Sections 494/34 of the Indian Penal Code That is still pending in the Court. From all this material on record the Trial Court as also the first appellate Court have found that the charge of cruelty has been established.

6. On perusal of the record and on hearing arguments we are of the view that the concurrent findings as to cruelty do not call for any interference. We find that this appeal has no force. It is dismissed accordingly.


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