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Mehta Gunvantray Maganlal Vs. Bal Prabha Keshavji - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 165 of 1961
Judge
Reported inAIR1963Guj242; (1964)0GLR188
ActsHindu Marriage Act, 1955 - Sections 25
AppellantMehta Gunvantray Maganlal
RespondentBal Prabha Keshavji
Appellant Advocate A.V. Mody, Adv.
Respondent Advocate M.C. Shah, Amicus Curiae
DispositionRevision allowed
Excerpt:
- .....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, properly of the respondent ......'it is important to note the words 'at the time of passing any decree or at any time subsequent thereto' used in the above section. it is also important to note the words 'on application made to it for the purpose.....
Judgment:

V.B. Raju, J.

1. This is an application by a husband. On a petition presented by his wife the marriage was annulled on the ground that the wife was impotent at the time of the marriage and subsequent thereto. Subsequently, the gave an application for permanent alimony, but the learned Civil Judge, Senior Division, Morvi, dismissed that application. In appeal, the learned Assistant Judge at Morvi allowed her appeal and ordered the payment of alimony at Rs. 50/- per month during her life time. It is against this order that the present revision application has been filed.

2. Under the Hindu Marriage Act No. 25 of 1955, there can be proceedings for restitution of conjugal rights or for judicial separation; or for the dissolution of marriageby a decree of divorce, on any of the grounds mentioned in Section 13, or for annulling a marriage by a decree of nullity on any of the grounds mentioned in Section 12.

3. Section 24 of the Act provides for maintenance pendente life. Section 25 provides for permanent alimony and maintenance, and 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 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, properly of the respondent ......'

It is important to note the words 'at the time of passing any decree or at any time subsequent thereto' used in the above section. It is also important to note the words 'on application made to it for the purpose by either the wife or the husband as the case may be'. If is also important to note the words 'older that the respondent shall, while the applicant remains unmarried, pay to the applicant'.

4. The view has been taken that the expression 'while the applicant remains unmarried' is perhaps inappropriate, and does not restrict the scope of Section 25 to cases where a decree for divorce or nullity has been passed and that Section 25 should also apply to proceedings for the restitution of conjugal rights or proceedings for judicial separation.

5. The expression 'while the applicant remains unmarried' does not mean that the section is restricted to cases where the applicant is unmarried at the date of the application or at the date of the order for permanent alimony. The word 'remains' is very important. The expression 'while the applicant remains unmarried' would only snow the nature of the order to be passed. While passing the order for permanent alimony the period of applicability of the order should be restricted to the period while the applicant remains unmarried, if she was unmarried at the time of the order. While construing this, expression, we must not ignore the word 'remains' in the expression 'remains unmarried'. The applicability of the order should be restricted to the period while the applicant remains unmarried. In other words, where the marriage has been dissolved by a decree of divorce or annulled by a decree of nullity, the applicability of the order for permanent alimony should be restricted to the period during which the applicant remains unmarried.

6. But in the case of proceedings for judicial separation or for restitution of conjugal rights, the applicant is married at the time of the order for permanent alimony, and therefore the expression 'while the applicant remains unmarried' has no application. Section 25 therefore applies to all kinds of proceedings under the Hindu Marriage Act of 1955, whether they are proceedings for judicial separation or for restitution of conjugal rights or for dissolution of marriage by divorce or for annulment of marriage by a decree of nullity. But in the last two types of proceedings Section 25 provides that the order passedunder Section 25 should order the respondent to pay only while the applicant remains unmarried. That is a restriction to be placed while passing the order for permanent alimony.

7. The expression 'while the applicant remains unmarried' does not cut down the scope of Section 25 and restrict the application only to the last two types of proceedings, and the contention that in view of this expression an application may be made subsequent to the decree by a person whose marriage has been dissolved or annulled cannot be accepted. Section 25 contemplates the passing of an order for permanent alimony either at the time of passing any decree or at any time subsequent thereto. But the section further provides that the application made for the purpose must be by either the wife or the husband. If the order for permanent alimony or maintenance is to be made at the time of passing the decree, the applicant is bound to be the husband or wife as the case may be, because the proceedings under the Act have not terminated in a decree for dissolution or annulment of marriage. But the section further provides that if the order for permanent alimony or maintenance is to be passed at any time subsequent to the decree, the applicant must be either the wife or the husband. It is, therefore, clear that if permanent alimony or maintenance is claimed subsequent to the decree under the Act, the application must be by the wife or the husband as the case may be. In other words, if the order is to be passed subsequent to the passing of the decree, the application can he made only in proceedings for the restitution of conjugal rights or for judicial separation. If an application for permanent alimony or maintenance is made subsequent to the passing of the decree, it cannot be made by a person who is a party to proceedings for divorce or for a decree of nullity, because after the decree the parties cease to be related as husband and wife. I am, therefore, of the view that under Section 25 no application for permanent alimony or maintenance can be made subsequent to the passing of the decree for dissolution or annulment of marriage in proceedings for dissolution of marriage by divorce or for annulment of marriage by a decree of nullity.

8. In the present case, as the application was given subsequent to the passing of the decree for the annulment of marriage by a decree of nullity, the order of permanent alimony is outside the scope of Section 25 and must, therefore, be set aside. The revision application is allowed, but there will be no order as to costs.


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