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Gurdev Kaur and ors. Vs. Channo - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.F.O. No. 225-M of 1984
Judge
Reported inAIR1986P& H251
ActsHindu Marriage Act, 1956 - Sections 25; Hindu Adoptions and Maintenance Act, 1956 - Sections 21 and 22
AppellantGurdev Kaur and ors.
RespondentChanno
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....1. does alimony granted to the wife under s. 25 of the hindu marriage act, 1955 come to an end with the death of the husband? herein lies the controversy in appeal.2. in aug., 1967, when the marriage between channo and her husband lachhman das was dissolved by a decree for divorce, the court awarded rs. 75/- per month as alimony to channo under s. 25 of the hindu marriage act, 1955 (hereinafter referred to as 'the act'). this was later enhanced, on her application to rs. 150/- per month with effect from nov. 22, 1978.3. sometime after his marriage with channo had been dissolved, lachhman das contracted a second marriage with gurdev kaur, lachhman das died on dec., 19, 1980 leaving behind his widow gurdev kaur, their two sons and a daughter.4. on march 9, 1983, that is, after the death of.....
Judgment:

1. Does alimony granted to the wife under S. 25 of the Hindu Marriage Act, 1955 come to an end with the death of the husband? Herein lies the controversy in appeal.

2. In Aug., 1967, when the marriage between Channo and her husband Lachhman Das was dissolved by a decree for divorce, the court awarded Rs. 75/- per month as alimony to Channo under S. 25 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act'). This was later enhanced, on her application to Rs. 150/- per month with effect from Nov. 22, 1978.

3. Sometime after his marriage with Channo had been dissolved, Lachhman Das contracted a second marriage with Gurdev Kaur, Lachhman Das died on Dec., 19, 1980 leaving behind his widow Gurdev Kaur, their two sons and a daughter.

4. On March 9, 1983, that is, after the death of Lachhman Das, Channo filed an application under S. 25 of the Act seeking further enhancement of the alimony awarded to her. The challenge in appeal here is to the impugned order of the trial court enhancing alimony to Rs. 200/- per month. Payment of this amount was ordered to be secured by a charge being created on the immoveable property of the husband Lachhman Das in the hands of his second wife-Gurdev Kaur and her children.

5. Payment of alimony is, by its very nature, a personal obligation and this being so, it must inevitably come to an end with the deceased husband no longer being there to fulfil it. Further, it is equally clear that the amount payable as alimony does not ipso facto become a charge on the respondent's property. A plain reading of S. 25 of the Act would show that such a charge can be created only by a specific order to that effect in terms of the provisions thereof. In other words, the section contains an enabling provisions regarding creation of a charge on the immoveable property of the respondent to secure the payment of alimony, but it nowhere lays down that such a charge shall be inherent in an order awarding alimony. Admittedly, no such order had been passed in the present case. Alimony, being at any rate a right enforceable against the husband in personam, it must be deemed to have ceased with the death of the husband Lachhman Das.

6. The death of the husband against whom an order for payment of alimony has been made does not mean that the widow is left without remedy. Relief is indeed available to her but not under the Hindu Marriage Act 1956. It is the provisions of the Hindu Adoptions and Maintenance Act, 1956, that then come into play. The widow being one of the dependants, as defined under S. 21 thereof, would be entitled to the benefit of the obligation imposed upon the heirs of the deceased-husband under S. 22 of the said Act to maintain her out of the estate of the deceased inherited by them.

7. In the situation as has arisen in the present case, keeping in view the larger interests of justice, the trial court is directed to treat the application of Mst. Channo for enhanced alimony as one under the relevant provisions of the Hindu Adoptions and Maintenance Act, 1956, and to consider her claim for maintenance in terms of that law. For this purpose, it shall be open to Mst. Channo to amend her application and to lead such further evidence as she may deem appropriate. The evidence already on record shall be treated as evidence recorded in the proceedings under the Hindu Adoptions and Maintenance Act, 1956. Further, pending the decisions of the trial court in this matter, Mst. Channo shall continue to be entitled to receive Rs. 150/- per month as maintenance out of the estate of her deceased-husband in the hands of Gurdev Kaur and her children.

8. This appeal is accordingly accepted in terms as set out. There will, however, be no order as to costs. The parties are directed to appear before the trial court on Sep. 23, 1985.

9. Order accordingly.


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