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Kuldip Chand Sharma Vs. Geeta Sharma - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 96 of 1975
Judge
Reported inAIR1977Delhi124; ILR1976Delhi854
ActsHindu Marriage Act, 1955 - Sections 25
AppellantKuldip Chand Sharma
RespondentGeeta Sharma
Advocates: S.D. Sharma and; Gulshan Rai, Advs
Cases ReferredPaten Dharamshi Premji v. Sakar Kanji
Excerpt:
.....did not have a locus standi to move the petition;; (rejecting the said contention), that an alimony application under section 25(1) of the act could be made after grant of a divorce decree; when the language of section 25(3) was taken along with section 25(1), the statue had described the parties to proceedings under the act as husband and wife and not for the stage before or at the time of passing of a decree under the act but for the purpose of the grant of permanent alimony, even after that. proceedings for grant of permanent alimony were incidental to the main proceedings and this lent support to its approach, and thereforee, the application under section 25 was maintainable, even after the granting of a decree of divorce. thus, a wife who got a decree of nullity is entitled..........full bench decision in durga das v. smt. tara rani, air 1971 p & h 141. the court observe that an alimony application under section 25(1) of the act could be made after grant of a divorce decree; when the language of section 25(3) was taken along with section 25(1), the statute had described the parties to proceedings under the act as husband and wife and not for the stage before or at the time of passing of a decree under the act but for the purpose of the grant of permanent alimony even after that. the court further observed that proceedings for grant of permanent alimony were incidental to the main proceedings and this lent support to its approach, and thereforee, the application under section 25 was maintainable even after the granting of a decree of divorce and. the full bench.....
Judgment:

B. Misra, J.

(1) This first appeal from order under Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act), has been filed by the husband against the order of the Additional District Judge, dated 25th March, 1975, by which he has allowed to the respondent wife a permanent alimony of Rs. 50 per month with effect from 9th August, 1974 under section 25 of the Act.

(2) The fact's leading to this appeal are that the appellant and the respondent were married according to the Hindu rites. The respondent- wife filed an application for annulment of the said marriage on the ground that the husband had been married to one Pushpa Sharma earlier in 1966 which marriage had been dissolved by a decree of divorce granted on 28th May, 1970 by Mr. K. S. Sidhu, then Additional District Judge, in Matrimonial Case No. 46 of 1970 and that the appellant contracted the marriage with the respondent within one year on 16th February, 1971 in contravention of the provisions of section 15 of the Act which debarred him from marrying before the expiry of one year from the date of the decree of divorce. The main relief claimed by the respondent was annulment of the marriage on the aforesaid ground, but in the alternative, she claimed judicial separation on the ground of alleged cruelty. The said petition was tried and has resulted in a decree of annulment of marriage passed by Mr. Jagdish Chandra, Additional District Judge, dated 9th August, 1974. (a certified copy of the said order has been placed on the file of the appeal before me but not on the original record) although there is no dispute between the parties with regard to the marriage between the parties having been declared void ah initio by the said order of Mr. Jagdish Chandra.

(3) Thereafter on or about 18th November, 1974 the respondent wife moved an application in the court below for grant of permanent alimony under section 25 of the Act and she claimed alimony of Rs. 200 per month. The petition was contested and the main defense was that the respondent before me had ceased to be the wife after the passing of the decree for annulment of the marriage and as such had no locus standi to apply for, or obtain a permanent alimony. The other ground of defense was that the respondent was herself earning. This application was with the consent of the parties tried on affidavits. The court below repelled both the contentions of the appellant and came to the conclusion that the appellant was employed as a stenographer in the Central Water and Power Commission and according to the salary certificate, his total remuneration was Rs. 498.40 p.m. out of which the Provident Fund deduction, compulsory additional D.A. and C.G.H.S. were allowed to be deducted, while the Installments of plot and bus fares were not allowed, and thus his net income was determined at Rs. 425.90 p.m. The parties did not have any child, but the appellant was held entitled to maintain his aged mother. The allegation of the appellant that the respondent was employed was rejected in view of the affidavit of the respondent as well as her statement recorded in the court and finally the court observed that she had a potentiality to earn. Under the circumstances, the court granted an alimony of Rs. 50 per month to the wife with effect from 9th August, 1974, It may be noticed that the decree of the court dated 9th August, 1974 by which the marriage between the parties had been annulled has not been challenged by any appeal, nor in the appeal before me and the same has become final and binding.

(4) The attack of the learned counsel for the appellant is confined to the order granting alimony. It must be said to the credit of the learned counsel for the appellant that he has very fairly not challenged the quantum of maintenance nor has the respondent filed any crossobjection or cross appeal against the same. Though the amount appears to me to be small and only symbolic, still both the parties are apparently satisfied with the quantum for the present.

(5) Mr. Sharma, learned counsel for the appellant has attacked the impugned order only on the ground that the appellant is not liable to pay any amount of maintenance to the respondent in a petition under section 25 of the Act (since the marriage had been annulled by a decree and she was no longer the legal wife within the meaning of section 25 of the Act), and secondly, her conduct disentitled her to the grant of any maintenance. Section 25(1) of the Act reads as follows :

'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 or support such gross such 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 be secured, if necessary, by a charge on the immovable property of the respondent.'

(6) On its construction the argument advanced before me in that after the passing of the decree annulling the marriage, the parties did not remain as husband and wife and as such did not answer the description of the wife occurring in section 25 of the Act and, thereforee the respondent did not have a locus standi to move the petition.

(7) The statutory provision has been construed in a number of authorities. I would first refer to a decision of the High Court of Gujarat in Paten Dharamshi Premji v. Bai Sakar Kanji, Atr 1968 Gujarat 150(1) where P. N. Bhagwati. J. (as his lordship then was), speaking for the Division Bench observed :

'ALL that the sub-section (1) of Section 25 requires is that an application must be made by the wife or the husband who is a party to the main proceeding, if she or he wants the incidental relief of permanent alimony, and such an application may be made in the main proceeding either before, or at the time of passing of such decree. The relief of permanent alimony being an incidental relief, it should not be a matter of any consequence whether the application for it is made prior to the passing of the decree or subsequent to it. As a matter of fact, the relief of permanent alimony being a relief incidental to the granting of the substantive relief, it would be more consonant with reason that an application for such incidental relief should be maintainable after the passing of a decree granting the substantive relief.'

In this decision, their lordships overruled an earlier decision of the said court which had been reported as Gunvantray v. Bai Prabha : AIR1963Guj242 , and the referred with approval to Hiralal v. Lilavati, : AIR1961Guj202 and Umiyaben v. Ambalal, Air 1966 Guj 13 and J. G. Khambatta v. M. C. Khambatta, Air 1941 Bom 17.

(8) The High Court of Punjab & Haryana has dealt with the point in a Full Bench decision in Durga Das v. Smt. Tara Rani, Air 1971 P & h 141. The court observe that an alimony application under section 25(1) of the Act could be made after grant of a divorce decree; when the language of section 25(3) was taken along with Section 25(1), the statute had described the parties to proceedings under the Act as husband and wife and not for the stage before or at the time of passing of a decree under the Act but for the purpose of the grant of permanent alimony even after that. The court further observed that proceedings for grant of permanent alimony were incidental to the main proceedings and this lent support to its approach, and thereforee, the application under section 25 was maintainable even after the granting of a decree of divorce and. the Full Bench referred to the decision of the High Court of Gujarat referred to above. The matter also came up for consideration before a single Judge of the High Court of Punjab and Haryana in Dayal Singh v. Bhajan Kaur, . The learned Judge observed that section 25 had to be liberally construed and even if the marriage was void ipso jure, as the lady had been made to go through a mock marriage and to lose her maidenhood under the belief brought out by false pretences that she was a lawfully wedded wife, she should be treated as a wife for the purpose of making an application under section 25 of the Act.

(9) The same view has been taken by the High Court of Calcutta in Sisir Kumar Kandu v. Smt. Sabita Rani Mandal : AIR1972Cal4 . The learned Judge deciding the case observed that words 'the wife or the husband' in section 25 had been used as convenient terms to refer to the parties to a marriage whether or not the marriage was valid or subsisting, just as the word 'marriage' had been used in the Act to inclunde a purported marriage which was void ab initio; thus, a wife who got a decree of nullity is entitled to get maintenance subsequent to the decree of nullity of marriage.

(10) On the other hand the counsel for the appellant has relied upon Naurang Singh v. Smt. Sapla Devi, : AIR1968All412 , and A. P. K. Narayanaswami Reddiar v. Padamanbhan : AIR1966Mad394 . In : AIR1968All412 (supra) the court was dealing with a case where the wife had claimed maintenance under section 488 of the Criminal Procedure Code and the applicant was the second wife, who had married during the life time of the first wife of her spouse which was legally void. The court found that such a marriage was void and, thereforee, she was not entitled to the maintenance. The facts of that case are entirely different. The court did not take into consideration the provisions of section 25 of the Act, which confers power on the court to grant permanent alimony in or after the proceedings under the Act. The authority, in my opinion, docs not help the appellant.

(11) In A. P. K. Narayanaswami's case (supra), the observations of the Division Bench of the High Court of Madras may be read with interest:

'SECTION 25 cannot be construed in such a manner as to hold that notwithstanding the nullity of the marriage, the wife retains her status for purposes of applying for alimony and maintenance. The proper construction of section 25 would be that where a marriage is admittedly a nullity, the section will have no application. But where the question of nullity is in issue and is contentious, the court has to proceed on the assumption until the contrary is proved, that the applicant is the wife. It is in that sense that section 25 should be appreciated.'

But the aforesaid observations arc obviously obiter dicta, as is also mentioned in the head-note of the report. In this decision their lordships relied on Gunvantry's case (supra), a decision which was overruled by the Division Bench of the same High Court in Paten Dharamshi's case (supra). In the Madras decision, their lordships also distinguished Jal Kaur v. Pala Singh, , an authority which found favor with the Full Bench of the Punjab & Haryana High Court in Durga Das's case. In Dayal Singh's case , the learned single Judge considered the said authority of the High Court of Madras and has given good reasons for not following the same. I am of the opinion that the law has been correctly laid down by the High Court of Punjab & Haryana in Durga Das v. Smt. Tara Rani, Air 1971 P&H; 141 and Dayal Singh v. Bhajan Kaur, as well as by the High Court of Gujarat in Paten Dharamshi Premji v. Sakar Kanji : AIR1968Guj150 and with respect I agree with this view.

(12) My conclusion is this: 'The Act has to be read as a whole and in a harmonious way. The provision of section 25 empowers the court to exercise jurisdiction under the Act to grant permanent alimony at the passing of the decree or at any time subsequent thereto. The decree would embrace within it all the decrees that are passed under the Act and no exception has been made out in respect of the decrees of any particular kind, not even decrees annulling the marriage. The expression 'wife or the husband' has indeed been used in a descriptive sense convenient to describe the party. Since it applies to proceedings subsequent to the passing of the decree as well. the expression does not have a reference to the legal status of the applicant or the respondent which may have been determined by the court in main proceedings under the Act. I am also of the view that the provisions of section 25 are ancillary to the main proceedings under the Act and must be liberally construed and the limitations upon the exercise of power are contained in the provision itself and need not be discovered outside the Act. This is clarified by the provisions contained in sub-section (3) of section 25 of the Act, where the circumstances in which the alimony is likely to be withdrawn are specified. In my opinion, there is no scope for enlarging the circumstances when alimony may not be granted and I have no doubt that the benefit of the provision is not to be denied to the parties who have suffered the misfortune to have their marriage dissolved by the decree of the court, merely on account of the passing of the decree, if they are otherwise entitled to the maintenance and it was certainly not the intention of the law that the parties to the dissolved marriage must suffer further misery of starvation without grant of alimony. Passing of the decree or annulment of marriage, thereforee, does not debar the court from granting alimony to the parties) who be otherwise entitled to it. As a result, I find that the court below was right in rejecting the objection of the appellant and the first contention of the counsel for the appellant fails.

(13) The next contention of the counsel with regard to conduct has no substance. The conduct that the appellant attributed to the respondent is marrying the appellant before the expiry of one year since the dissolution of the first marriage, but it is the appellant who was a party to the previous proceedings and who was a party to the marriage with the respondent. Hardly any blame can be laid at the door of the respondent on that account. The contention of the counsel that the respondent knew about it and pressed the appellant into an unlawful marriage, is wholly incredible and is rejected. At all events, even if that be true, it will not disentitle the respondent to obtain the amount of maintenance granted by the court.

(14) Mr. Sharma for the appellant lastly contended that the respondent is already earning and so she is not entitled to the grant of maintenance. This is a question of fact which has been decided by the court below against the appellant and there is no material placed on the record to show that the decision of the court on the point is in any way erroneous. Further I wish to point out that the quantum of Rs. 50 per month awarded is very small and to my mind only symbolic. At the present time nobody can be expected to live and make his or her two ends meet on this paltry sum. The court below awarded the amount in view of 'potentiality of the respondent to earn' and so she was indeed expected to earn and maintain herself, if she were not to be left to starve to death. The appellant can, thereforee, not derive any advantage from the alleged earning of the respondent after he has had the alimony fixed at a low figure. The finding of the court below is affirmed and the contention of the appellant is rejected.

(15) If there be any change in the circumstances within the meaning of sub-section (2) of section 25 of the Act, which entitles any party to have the variation or modification of the impugned order, the parties are free to pursue such remedies as they may be advised to adopt according to law. The appeal is, thereforee, dismissed with costs.


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