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Rajindr Parkash Vs. Roshni Devi - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.O. No. 45-M of 1980
Judge
Reported inAIR1981P& H212
ActsHindu Marriage Act, 1955 - Sections 25, 25(3) and 235(1); Code of Criminal Procedure (CrPC) , 1973 - Sections 125 and 125(4)
AppellantRajindr Parkash
RespondentRoshni Devi
Cases ReferredBalldev Raj v. Pushpa Rani
Excerpt:
.....party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just. from this as well as from the scheme of the hindu marriage act, it cannot be inferred that because the divorce was granted on account of the desertion on the part of the wife, she has disentitled herself to the maintenance under section 25 of the hindu marriage act......2979. the divorce was granted on the ground of desertion. the application under section 25 of the hindu marriage act, 1955(hereinafter referred to as the act) was filed on 19th of may. 1979 on the ground that she does not own any movable or immovable property and has no independent source of income. she further alleged that rajinder parkash owns about 10 killas of land and is getting a salary of rs. 400/- per month and is also receiving income of about rs. 500/- per month from the agricultural land. thus she claimed that she may be allowed a sum of rs. 200/- as permanent alimony. the petition was resisted by rajinder parkash appellant. it was told by him that shrimati roshni owns land has income from the land which is sufficient for her needs. he mentioned that he is getting a salary of.....
Judgment:

1. This appeal arises out of an application under Section 25 of the Hindu Marriage Act, filed on behalf of the wife-respondent, for permanent alimony and maintenance,

2. The facts, briefly stated, are that Rajinder Parkash appellant and Roshni Devi respondent were married in May, 1976, according to the Hindu rites. On the application moved by Rajinder Parkash, a decree of divorce dissolving the marriage between the parties was granted on 29th of August, 2979. The divorce was granted on the ground of desertion. The application under Section 25 of the Hindu Marriage Act, 1955(hereinafter referred to as the Act) was filed on 19th of May. 1979 on the ground that she does not own any movable or immovable property and has no independent source of income. She further alleged that Rajinder Parkash owns about 10 Killas of land and is getting a salary of Rs. 400/- per month and is also receiving income of about Rs. 500/- per month from the agricultural land. Thus she claimed that she may be allowed a sum of Rs. 200/- as permanent alimony. The petition was resisted by Rajinder Parkash appellant. It was told by him that Shrimati Roshni owns land has income from the land which is sufficient for her needs. He mentioned that he is getting a salary of Rs. 300/- per mensem and he has to support his aged parents and a sister.

3. On the pleading of the parties, the following issues were framed :-

1. To what amount of maintenance the petitioner is entitled to in proceedings under Section 25 of the Hindu Marriage Act?

2. Relief

4. After discussing the whole evidence, the trial Court came to the conclusion that a sum of Rs. 85 per month would be just amount which can be fixed towards maintenance of the wife. Feeling aggrieved, against this, the husband has come up in appeal to this Court.

5. The only point urged on behalf of the appellant is that no maintenance could be allowed under Section 25 of the Hindu Marriage Act because in the decree of divorce dissolving the marriage between the parties, granted on 29th of August 2979, on the ground of desertion, it was held that it was the wife who deserted the husband for a continuous period of more than 2 years. Under these circumstances, it was contended that the respondent-wife cannot be allowed to take benefit of her own fault. Moreover, according, to the learned counsel, the Court, while granting permanent alimony and maintenance under Section 25 of the Hindu Marriage Act, will take into consideration the conduct of the parties and other circumstances of the case which may seem to the Court to be just. According to the learned counsel, this fact has not been considered by the learned Additional District Judge and, in view of the conduct of the wife, she is not entitled to any maintenance. In support of his contention, he also referred to the provisions of sub-section (4) of Section 125 of the Code of Criminal Procedure, 1973, wherein it has been provided that no wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or, if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. He cited Balldev Raj v. Pushpa Rani, 1970-72 Pun LR 291: (AIR 1970 Punj 515) in support of this contention.

6. I have heard the leaned counsel for the appellant at a great length but I do not find any force in his contentions. Section 25 of the Hindu Marriage Act reads s under :-

'(1) 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 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 of the applicant, the conduct of the parties and other circumstances of the case 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.

(2) If the court is satisfied that there is a change in the circumstance of either party at any time after it ha made an order under sub-section (1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.

(3) If the court is satisfied that the party in whose favour an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.

The provisions of sub-section (3) if Section 25 of the Hindu Marriage Act indicates the reason on the basis of which an order passed under this section for allowing permanent alimony and maintenance could be varied or modified or even rescinded. The reference in sub section (1) of Section 25 of the Hindu Marriage Act to the conduct of the parties is to be read with the provisions of sub-section (3) thereof. No party will be entitled to the maintenance keeping in view their conduct, if either of them has remarried or, if the party claiming the maintenance is wife, has not remained chaste. Therefore, it cannot be said that simply because the divorce was granted on the basis of desertion on the part of the wife, it is itself sufficient to deprive her of the maintenance under section 25 of the Hindu Marriage Act. In this respect, reference to Section 125 of the Code of Criminal Procedure may be relevant. Therein, wife includes a woman who has been divorced by, or has obtained divorce from her husband and has not remarried. Such woman is entitled to an order of maintenance even under Section 125 of the Code of Criminal Procedure provided all other requirements thereof are fulfilled. From this as well as from the scheme of the Hindu Marriage Act, it cannot be inferred that because the divorce was granted on account of the desertion on the part of the wife, she has disentitled herself to the maintenance under Section 25 of the Hindu Marriage Act. In the present case, no other evidence as to prove the conduct of the wife respondent after the grant of decree of divorce has been brought on the record and, under the circumstance, it has been rightly held by the Additional District Judge that she is entitled to the maintenance of Rs. 85 per month as permanent alimony. Consequently, this appeal fails and is dismissed with no order as to costs.

7. Appeal dismissed.


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