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Akasam Chinna Babu Vs. Akasam Parbati and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 77 of 1964
Judge
Reported inAIR1967Ori163
ActsHindu Marriage Act, 1955 - Sections 13, 24 and 25(1)
AppellantAkasam Chinna Babu
RespondentAkasam Parbati and anr.
Appellant AdvocateB.K. Pal, ;D.P. Mohapatra and ;G.B. Patnaik, Advs.
Respondent AdvocateY.S.N. Murty, Adv.
DispositionAppeal partly allowed
Cases ReferredMinarani v. Dasarathi
Excerpt:
.....new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 5. the finding of the trial court that the plaintiff has failed to prove the adulterous life of his wife is well supported by evidence it is an admitted fact that defendant no. 1 is set aside the appeal is thus partly allowed and in view of the nature of success of the parties, each party to bear his own costs of this court......in view of the provisions of section 25. it is open to the court to grant permanent alimony to the wife in view of the dismissal of the plaintiff's suit section 25(1) runs thus:- '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, while the applicant remains unmarried, 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 and the conduct of the parties it may seem.....
Judgment:

Das, J.

1. The plaintiff-appellant is the husband of defendant-respondent No. 1, Akasam Parbati. They were married sometime in February 1956. It is the case of the plaintiff that after their marriage his wife lived with him for a short time and thereafter she was forcibly removed by defendant No. 2, her maternal uncle, to his house where she lived an adulterous life with him and gave birth to a daughter who is now about five to six years old. Their relationship continued to remain unhappy. A registered notice was sent on behalf of the appellant to defendants Nos. 1 and 2 alleging that they were living an adulterous life and in the said notice the plaintiff also disclaimed the parentage of the daughter horn to defendant No. 1

2. The defendant No. 1 denied the allegations and made counter-allegations of cruelty against the plaintiff in reply to the said notice dated 9-5-1959. The defendant No. 1 started a criminal case against the plaintiff and some Others alleging that they assaulted her. During the pendency of that case, the plaintiff filed the present suit under Section 18 of the Hindu Marriage Act, 1955, (hereinafter referred to as the Act') praying for a decree of divorce on the ground that defendant No. 1 was living in adultery with defendent No. 2.

3. The defendants denied the plaint allegations. Their case is that defendant No. 1 lost her parents in her childhood and was brought up by her maternal uncle, defendant No. 2, who gave her in marriage with the plaintiff. Defendant No. 1 lived with the plaintiff for about six months and during that period she conceived through the plaintiff. The plaintiff and his parents continuously treated defendant No. 1 with cruelty and in the fourth month of her pregnancy, she was forcibly driven out of their house Defendant No. 1 had no alternative but to take shelter in the house of her maternal uncle, defendant No. 2, where she gave birth to the daughter. After prolonged negotiations by some respectable persons of the locality the plaintiff tool; his wife and the daughter to his house, but again they left the house as they were subjected to continuous ill-treatment and the present suit has been filed only with a view to relieve the plaintiff from the monetary obligation of maintaining the wife and the daughter

4. The learned trial court negatived the plaintiff's case of adultery He found that defendant No. 1 was subjected to cruelty by the plaintiff who deserted her. He dismissed the plaintiff's suit for dissolution of the marriage. While dismissing the petition however he awarded both pendente lite and permanent maintenance at the rate of Rs. 30/- and Rs. 10/-per month respectively to the defendant No. 1 and the daughter He also held that defendant No. 1 was entitled to restitution of some of the properties which remained with the plaintiff when defendant No. 1 left his house. Against this decision of the trial court the plain tiff' has filed this appeal.

5. The finding of the trial court that the plaintiff has failed to prove the adulterous life of his wife is well supported by evidence It is an admitted fact that defendant No. 2 gave the defendant No. 1 in marriage with the plain tiff as she lost her parents from her childhood Defendant No. 1 was living in the house of defendant No. 2 where his mother and wife were also staying It is hardly believable that defendant No. 2 who is fairly advanced in age would carry on adulterous transaction with his young niece. That apart there is no evidence worth the name in support of such adultery except the bare assertion of the plaintiff and his father P W 4 a close relation of the parties said nothing about any such adultery Nobody else has been examined in support of the charge.

It appears that when the feelings between the parties became somewhat strained on account of some assault committed on defendant No. 1 by the plaintiff on 9-5-1959 the charge of adultery was made against defendant No. 1 as a counterblast Ext. D is a station diary entry made by defendant No. 1 on 9-5-1969 alleging that she was assaulted by the plaintiff and his mother who threatened to beat her to death and her ornaments were withheld Ext. C is a medical certificate granted by Dr K. B Sahu who found a number of injuries on the person of defendant No. 1 when he examined her on the same day He was of opinion that these might have been the result of assault given by broom-sticks Ext A is a copy of the judgment given in the criminal case filed by defendant No. 1 as against the plaintiff and some others in connection with the incident of 9 5-1959 wherein the plaintiff and some others were convicted under Section 328 IPC

It appears from Ext B that a revision carried against the said order of conviction was dismissed by the High Court. Only when defendant No. 1 got herself medically examined and started a case, the plaintiff came forward with the wild allegations of adultery against defendant No. 1 in his registered notice Ext. 1 given on the very same day, that is, 9-5-1959 through his advocate after a lapse of about four years of the marriage. In view of the evidence and circumstances of the case, the learned trial court rightly held that a case of adultery had not been established by the plaintiff Adultery was the only ground advanced for dissolution of the marriage In view of such evidence the learned Trial Court rightly dismissed the plaintiff's suit for dissolution of the marriage and for a decree for divorce.

6. Mr. Pal. learned Counsel for the appellant however, contended that it was not open to the Trial Court lo award a permanent alimony of Rs. 30 to defendant No. 1 and Rs. 10 to the daughter and also pendente lite maintence to the daughter in view of the provisions of Sections 24 and 26 of the Act. Section 24 of the Act runs thus.

'Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his sup-port and the necessary expenses of the proceeding it may on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as having regard to the petitioners' own income and the income of the respondent it may seem to the Court to be reasonable'

In view of the clear provisions in Section 24, there cannot be any dispute that the wife is entitled to a pendente lite maintenance when she has no independent income sufficient for her support and also the necessary expenses of the proceedings There is no evidence in this case that the wife had sufficient income for her support. In that view of the matter the order for pendente lite maintenance granted to defendant No. 1 at the rate of Rs. 30 must be maintained Section 24 however, does not authorise grant of any pendente lite maintenance to the daughter and in terms applies either to the wife or the husband as the case may be. The maintenance of Rs. 10 awarded in favour of the daughter must therefore be set aside.

7. I shall now take up the other point, viz., whether in view of the provisions of Section 25. it is open to the Court to grant permanent alimony to the wife in view of the dismissal of the plaintiff's suit Section 25(1) runs thus:-

'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, while the applicant remains unmarried, 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 and the conduct of the parties 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.'

8. It was urged that the words 'any decree' occurring in Section 25(1) contemplates any of the decrees passed under Sections 9 to 18 of the Act and it was only in the event of any such decree being passed that the Court will have jurisdiction to order payment of permanent alimony in favour of husband or wife as the case may be. In other words, the contention is that when the suit of the plaintiff was dismissed it is not open to the Court to pass an order of alimony in favour of the wife. There appears to be some force in this contention Under Sections 9 to 14 of the Act, the Court could pass substantive decree granting any of the reliefs provided thereunder. Section 26(1) of the Act entitles the Court to pass any order for permanent alimony. The question is whether the Court is entitled to pass such order while dismissing the petition. The language of Section 25 is plain enough to indicate that the Court is not entitled to pass such an order while dismissing the petition. The words 'at the time of passing any decree'' do not include the case of a dismissal. The passing of an order of dismissal cannot be regarded as the passing of a decree Several decisions have also been oiled in support of such a view

9. The Gujrat High Court in a case reported in AIR 1961 Guj. 202. Harilal Puru-sottam v. Lilavati Gokaldas, held that the Court will not have any jurisdiction to grant permanent alimony under Section 25 of the Act if a petition under any of the Sections 9 to 13 of the Act was dismissed

In the case reported in AIR 1962 Bom. 27, Shantaram Gopal v. Hirabai Shantaram. the husband filed a petition for judicial separation against the wife. Later on the husband withdrew the petition. Sometime thereafter the wife made an application for alimony and maintenance under Section 25 of the Act. It was held that the existence of any of the decrees referred to in Sections 9 to 13 was a condition precedent to the exercise of jurisdiction under Section 25(1) and as no decree of any kind was passed in the said case, the ancillary relief for permanent alimony and maintenance under Section 25(1) will not he available. The same view has also been taken in a later decision of the Bombay High Court reported in AIR 1964 Bom. 83, Shantaram D. Karnik v. Malti Shantaram Karnik

The Calcutta High Court in a case reported in AIR 1963 Cal 428. Minarani v. Dasarathi, held that the words 'any decree' occurring in Section 25(1) do not cover case of a dismissal. That was a case where the trial court dismissed the petition for divorce filed by the husband under Section 13. Thereafter the wife filed a petition under Section 25 praying for an order for her maintenance. The question was whether the Court is competent to allow the maintenance in view of the dismissal of the petition under Section 18 of the Act It was held that when the main petition was dismissed and no substantial relief was granted under Sections 9 to 14 of the Act, there was no passing of a decree as contemplated in Section 25(1) and the jurisdiction to pass an order for maintenance under the section does not arise.

10. In view of the clear provision in Section 25(1) of the Act and the position of law as enunciated in the aforesaid decisions, with which we agree. I think the learned Trial Court was not justified in allowing a decree and in passing an order for permanent alimony in favour of the defendant-wife or the daughter. The wife as already said, would however be entitled to maintenance pendent lite at the rate granted by the Trial Court. The daughter will not be entitled to any maintenance either, pendente lite or permanent in the proceedings.'

11. The Trial Court has further directed for restitution of the properties mentioned in the schedule to the written statement of defendant No. 1. Section 27 of the Act, however, authorises disposal of the property only when it is found to belong jointly both to husband and the wife and was presented at or about the time of marriage There is however, No such finding that the properties mentioned in the written statement in this case belong jointly to the plaintiff and his wife the defendant and were presented at or about the time of marriage or that they belong to both husband and the wife That part of the order of the Trial Court must accordingly he set aside

In the result, the order of dismissal of the suit for dissolution of the marriage and also the grant of pendente lite maintenance to defendant No. 1 at the rate of Rs 30 per month is maintained but the remaining part of the order, that is grant of permanent alimony to defendant No. 1 and the daughter as also the pendente lite maintenance to the daughter as also the order for restitution of the properties to defendant No. 1 is set aside

The appeal is thus partly allowed and in view of the nature of success of the parties, each party to bear his own costs of this Court.

Misra. J.

12. I agree


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