Shri Namdeo Krishnarao Hipperkar v. Sau Kalpana Namdeo Hipperkar

Heard advocates appearing for the parties. The Second Appeal is admitted on the following substantial question of law: . " Whether the Appellate Court could have enhanced the permanent alimony to Rs.4,200/- per month when the prayer made by the respondent in her petition was for grant of permanent alimony at the rate of Rs.3,000/- per month?" Considering the limited controversy involved in this Second Appeal, the same is taken up for final disposal immediately.

The submission of the advocate the appellant is that in the petition for restitution of conjugal rights filed by the respondent-wife she had prayed for grant of ... 2 ... permanent alimony at the rate of Rs.3,000/- per month and in an appeal preferred by the respondent the Appellate Court enhanced the said amount to Rs.4,200/-. His submission is that the claim for permanent alimony in the petition filed by the respondent was not amended and therefore the Appellate Court could not have enhanced the permanent alimony to an amount which exceeds Rs.3,000/- per month. He states that the appellant has been depositing permanent alimony at the rate of Rs.3,000/- per month.

The submission of the learned advocate for the respondent is that the evidence on record clearly shows that the respondent was entitled to permanent alimony at the rate which is much more than Rs.3,000/- per month. He has invited my attention to the examination-in-chief of the respondent and her cross-examination made by the appellant. He submitted that the Appellate Court was justified in enhancing permanent alimony. He submitted that no fault can be found with the finding of fact recorded by the Appellate Court in paragraph Nos.19 and 20 of his judgment as the quantification of permanent alimony is based on documentary evidence on record.

I have given careful consideration to the submissions made by the advocates appearing for the parties. Perusal of a copy of the petition filed by the ... 3 ... respondent under section 9 of the Hindu Marriage Act, 1955 shows that the prayer for permanent alimony was only in the sum of Rs.3,000/- per month. Admittedly, no amendment was carried out to the petition filed by the respondent for claiming permanent alimony at an enhanced amount. Even assuming that there was evidence adduced by the respondent to show that she was entitled to permanent alimony at the rate of more than Rs.3,000/- per month, the Appellate Court could not have granted the said amount in absence of an amendment to the claim made in the petition filed by the respondent. It must be stated here that under section 21 of the Hindu Marriage Act, 1955 the proceedings under the said Act are regulated, as far as may be, by the Code of Civil Procedure, 1908.

If the respondent had amended the claim for permanent alimony, the trial Court could have granted an opportunity to the appellant to file additional written statement to the amended claim. That opportunity was obviously not available to the appellant. In my view, the Appellate court has, therefore, committed an error by granting permanent alimony at the rate of Rs.4,200/- per month. The advocate for appellant has made a statement that appellant is already paying permanent alimony at the rate of Rs.3,000/- per month. In any event, evidence on record and finding recorded by the ... 4 ... appellate Court in paragraph No.20 certainly justify the grant of permanent alimony at the rate of Rs.3,000/- per month. Hence, the appeal must succeed.

Under section 25 of the said Act of 1955, the respondent can always apply for enhancement in the permanent alimony which is granted in her favour.

Hence, I pass the following order: (i) The impugned judgment and decree dated 16th April, 2004 passed by the learned 2nd Additional District Judge, Baramati in Regular Civil Appeal No.24 of 1999 is modified. The respondent will be entitled to permanent alimony at the rate of Rs.3,000/- per month instead of Rs.1,500/- per month granted by the trial Court. (ii) This order will not preclude the respondent from taking out appropriate proceedings under section 25 of the said Act of 1955. If such proceedings are taken out, the same will be decided on its own merits. (iii) There is no order as to costs. ... 5 ... JUDGE JUDGE JUDGE