Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Bharati Dangre, J., held that provision of maintenance/permanent alimony being a beneficial provision for the indigent spouse, Section 25 can be invoked by either of the spouse, where a decree of any kind governed by Sections 9 to 13 has been passed and marriage tie is broken, disrupted or adversely affected by such decree of the court.

Petitioner-Wife on being aggrieved by the order of the Civil Judge approached this Court.

Respondent-husband had filed Hindu Marriage Petition claiming for grant of permanent alimony from the petitioner-wife at the rate of Rs 15,000 per month. The said application was filed under Section 25 of the 1955 Act, wherein it was pleaded that since the respondent-husband had no source of income and on the contrary, the petitioner-wife had acquired the educational qualification of M.A., B.Ed and was serving at Shri Datta Mahavidyalaya, Talni, Taluka Hadgaon.

It was stated that, in order to encourage the wife to obtain the degree, the husband managed the household affairs, keeping aside his own ambition.

Respondent-husband pleaded that he suffered humiliation and harassment in the marital relationship as the petitioner-wife, with a malafide and dishonest intention, filed petition that the respondent was neither doing any job, nor does he possess any moveable or immovable property or had any independent income.

Respondent-husband claimed maintenance of Rs 15,000 per month from the wife.

Analysis, Law and Decision

High Court expressed that a conjoint reading of Sections 24 and 25 of the Hindu Marriage Act, 1955 would reveal that both the sections in the Act of 1955 are enabling provisions and confer a right on the indigent spouse to claim maintenance either pendente lite or in the nature of permanent alimony and maintenance.

The words applied in Section 25 of the Act of 1955 permit any court exercising jurisdiction under this Act, i.e. under Sections 9 to 13, at the time of passing any decree or at any time subsequent thereto, on an application made to it, by either of the spouse pay to the applicant for her/his maintenance, either gross sum or monthly or periodical sums for not exceeding the life of the applicant, having regard to the income and the other property, etc.

Bench clarified that the term used “at any time subsequent thereto” cannot be made redundant, by giving constricted meaning to the words “wife or husband”.

Sub-sections (2) and (3) of Section 25 are indicative of the fact that if at the time of decree, an application is made or at any subsequent time of the passing of the decree, an application is made, claiming maintenance by either of the spouse, the Court is empowered to grant the claim, which is just and proper and the payment can be secured if necessary, by creating charge on the immovable property of the respondent.

Further, the Bench added that Section 25 is not only restricted to a decree of divorce, but the decree can also be for restitution of conjugal rights under Section 9, the decree can also be for judicial separation under Section 10, or the decree can also be for divorce under Section 13 or the decree can also be for a divorce by mutual consent under Section 13B.

Additionally, the Court expressed that,

Scope of Section 25 of the Act of 1955 cannot be constricted by not making it applicable to a decree of divorce being passed between the husband and wife.

Lastly, the High Court remarked that,

“Since Section 25 has to be looked upon as a provision for destitute wife/husband the provisions will have to be construed widely so as to salvage the remedial intailments.”

“…the application for interim maintenance filed under Section 24 of the Act of 1955, has been rightly entertained by the learned Judge and the husband has been held entitled to interim maintenance while the proceedings under Section 25 are pending.”

In view of the above impugned order were upheld and the petitions were dismissed. [Bhagyashri v. Jagdish, 2022 SCC OnLine Bom 694, decided on 26-2-2022]

Advocates before the Court:

Mr S.S. Thombre for the petitioner.

Mr Rajesh Mewana for respondent 1.

Case BriefsHigh Courts

Bombay High Court: Pushpa V. Ganediwala, J., addressed the following substantial questions of law:

  • Whether it is necessary for the wife to file an application in writing to grant permanent alimony under Section 25 of the Hindu Marriage Act, 1955?
  • Whether wife can claim maintenance under Section 25 of the Hindu Marriage Act, 1955, as she is divorcee, after passing the decree of divorce?

Counsels representing both the parties had a consensus that Section 25 of the Act does permit the divorcee spouse to claim maintenance from the other spouse even subsequent to the passing of the decree of divorce, subject to certain conditions.

Court below failed to consider the wife’s prayer for permanent alimony under Section 25 of the Act.

Bench stated that various other High Courts including this High Court have held that the word ‘application’ as referred to in Section 25 of the Act i.e. ‘on an application made to it’ does not specify as to whether it is oral application or application in writing. Adding to this observation, Court stated that a broader view of Section 25 of the Act is to be taken considering the object and purpose for the inclusion of this provision in the Act.

In Madras High Court’s decision of Umarani v. D. Vivekannandan, 2000 SCC OnLine Mad 50, it was held that there is no need of written application under Section 25 of the Hindu Marriage Act and permanent alimony and maintenance can be granted on the basis of oral application.

Madhya Pradesh High Court, in Surajmal Ramchandra Khati v. Rukminibai, 1999 SCC OnLine MP 87, held that merely because the wife had not presented a separate application praying for grant of permanent alimony, it cannot be said that she is not entitled to the same.

In view of the above discussion, Bench expressed that in terms of Section 25 of the Act, for granting the relief of permanent alimony, the Court has to consider the respondent’s own income and other property, if any, the 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.

In the case of a decree by mutual consent, if relief for permanent alimony is sought, there is no occasion for the Court to observe the conduct of the parties, to examine their financial stability and other circumstances of the case to pass any order of permanent alimony at the time of passing of the decree of divorce by mutual consent. Essential element is that the Court should be able to comprehend the financial position and conduct of parties to pass permanent alimony order.

Appellant had narrated the financial status of the respondent-husband in her affidavit before the Court and she prayed to keep open the issue of permanent alimony for its consideration later on.

Since the appellate court dismissed the appeal on a misplaced ground of marital tie not subsisting, the said order is to be set aside.

On observing and noting the above discussion, Court opined that ‘application’ as referred to in Section 25 of the Act implies any application either in writing or oral for seeking permanent alimony and maintenance. Mode and form of the application under Section 25 of the Act are immaterial. The order in this regard cannot be passed in a vacuum.

Therefore, the matter is remanded to the trial court in order to decide the issue of permanent alimony. [Vijayshree v. Dr Nishant Arvind Kale, 2021 SCC OnLine Bom 29, decided on 08-01-2021]