Civil Suit No. 32 of 2011 · The High Court
Case Details
AFR IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.73 of 2018 In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment dated 13.11.2017 passed by the learned Additional District Judge, Titilagarh, Bolangir, in R.F.A. No.21 of 2015, setting aside the judgment dated 27.04.2015 passed by the learned Civil Judge, Senior Division, Titilagarh in Civil Suit No.32 of 2011. ---- Prasanta Devi Padhi …. Appellant -versus- Asish Kumar Padhi …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - For Respondents - Mr. D. K. Sahoo-1, Advocate Mr. T. K. Sahu Advocate
Legal Reasoning
CORAM: MR. JUSTICE D.DASH Date of Hearing : 05.03.2024 :: Date of Judgment: 12.03.2024 D.Dash,J. The Appellant, by filing this Appeal under Section 100 of the Code of Civil Procedure (for short, ‘the Code’), has assailed the Page 1 of 11 R.S.A. No.73 of 2018 {{ 2 }} judgment and decree passed by the learned Additional District Judge, Titilagarh, Bolangir, in R.F.A. No.21 of 2015. The Respondent (husband) as the Petitioner had filed an application under section 13 of the Hindu Marriage Act, 1955 (for short, ‘the H.M Act’) arraigning the Appellant (wife) as the Respondent therein, praying for a decree for dissolution of their marriage. The said application stood numbered as C. S. No.32 of 2011 in the Court of Civil Judge, Senior Division, Titilagarh. The Trial Court decreed the suit and in dissolving the marriage between the parties directed the Respondent (husband) to pay a sum of Rs.7,00,000/- to the Appellant (wife) as permanent alimony. The Respondent (husband) being aggrieved by the said judgment and decree passed in the suit, carried an Appeal under section 28 the H.M Act. The First Appellate Court in that Appeal filed by the Respondent (husband) challenging the grant of permanent alimony to the Appellant (wife) has set aside the said order of the Trial Court as to the direction for payment of the permanent alimony by the Respondent (husband) to the Appellant (wife). Hence this Second Appeal is at the instance of the Appellant (wife) and here she has only questioned the refusal for grant of permanent alimony by the First Appellate Court. R.S.A. No.73 of 2018 Page 2 of 11 {{ 3 }} 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit. 3. The Appeal has been admitted to answer the following substantial question of law. “Whether the Lower Appellate Court is right in setting aside the order passed by the courts below with regard to the payment of permanent alimony taking a view that for the purpose a separate application containing the prayer is the mandate of law which also in the case in hand is not factually correct as here there was an application to that effect?” 4. Mr. D. K. Sahoo, learned counsel for the Appellant (wife) submitted that the view taken by the First Appellate Court by giving a reading to the provision contained in section 25 of the H. M. Act that it is the mandate of law in a proceeding for divorce that in order to claim permanent alimony, an application has to be made in that regard is erroneous. He, further, submitted that this Appellant (wife) while giving her affidavit evidence before the Trial Court had clearly stated that in case, the Court passes the decree for divorce, she be paid with the permanent alimony of a sum of Rs.15, 00, 000/- so as to maintain herself for the rest of life and provide proper care and education to her son, which according to him ought to have been Page 3 of 11 R.S.A. No.73 of 2018 {{ 4 }} taken as the claim advanced from the side of the Appellant (wife). He, therefore, submitted that the judgment of the First Appellate Court setting aside the order of grant of permanent alimony of Rs.7,00,000/- by the Respondent (husband) to the Appellant (wife) is not sustainable in the eye of law. 5. Mr. T. K. Sahu, learned counsel for the Respondent (husband) submitted that the view taken by the First Appellate Court is wholly in consonance with the provision contained in section 25 of the H.M. Act, which says that for the purpose of grant of permanent alimony, the claimant has to file an application in that regard, and, therefore, when Respondent (husband) had initiated the proceeding for divorce since the Appellant (wife) had not given any application claiming permanent alimony, the Trial Court having committed error in granting the permanent alimony, the same has been rightly set aside by the First Appellate Court. 6. In order to answer the substantial question of law in addressing the rival submission, it would be apt to take note of the provision contained in section 25 of the H. M. Act, which reads as under:- “Permanent alimony and maintenance- (1) 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 Page 4 of 11 R.S.A. No.73 of 2018 {{ 5 }} purpose by either the wife or the husband, as the case may be, order that the respondent shall 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, (the conduct of the parties and other circumstances of the case), it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.” (2) (3) xxxx xxxxx xxxx xxxx xxxxx xxxx 7. The Trial Court here while granting the decree for divorce as prayed for by the Respondent (husband) had directed the Respondent (husband) to pay the permanent alimony. This has been set aside by the First Appellate Court as the Appellant (wife) had not filed an application in that regard. 8. A plain reading being given to the provision as quoted above, this Court is of the considered opinion that the First Appellate Court has failed to properly read and construe the provision contained in sub section 1 of section 25 of the H.M. Act. It says that any Court exercising jurisdiction under the H. M. Act may at the time of passing of the decree Or at any time subsequent thereto, an application made to it for the purpose by either the wife or the husband as the case may be………” The word “or” which finds place in between the Page 5 of 11 R.S.A. No.73 of 2018 {{ 6 }} word “decree” and “at any time subsequent thereto” clearly poses two situations one “at the time of passing of decree” and the second one “at any time subsequent thereto”. When it comes to the position at any time subsequent thereto, an application is required to be filed whereas at the time of passing any decree, the Court exercising the jurisdiction under H. M. Act has all the power to pass an order as regards the permanent alimony for maintenance and support which may be gross sum or such monthly or periodical sum for such term not exceeding the life of the recipient. The words at the time of passing any decree and the words at any time subsequent thereto cannot be given conjoint reading but have to be read disjunctive of one another and that is the reason the word ‘or’ has been employed in between. The provision of section 25 confers an enabling power upon the court itself while granting divorce or judicial separation to also pass an order for the maintenance of the wife. The contemplated application as noticed supra to be made by such parties has to be limited and confined to the case when the court, while disposing of the main petition has not thought of passing an order for grant of maintenance and was silent on the said issue and that therefore to be so considered and decided has to be placed through an application. R.S.A. No.73 of 2018 Page 6 of 11 {{ 7 }} Thus to say that even the Court while exercising the jurisdiction under the H. M. Act at the time of passing any decree is required to have before it, an application in advancing the claim of permanent alimony will defeat the intention of the legislature which having purposely employed the word “or” in between the two situations; one “at the time of passing any decree” and the other “at any time subsequent thereto” has not so expressed to be the intendment that on both the situations an application is required to be filed. 9. The Supreme Court in case of V. Bhagat v. D. Bhagat (Mrs), (1944) 1 SCC337 dealt with the point on the interpretation of Section 25 read with Sections 9 to 13 read with Section 5 of the Act. In that case a joint petition filed by the spouses for grant of a decree of divorce by mutual consent failed as they withdrew their consent during the statutory waiting period. Thereafter the wife moved a petition for grant of maintenance under Section 25 of the Act. The Supreme Court held that Section 25 can be invoked by either of the spouses where a decree of any kind governed by Sections 9 to 13 has been passed and the marriage-tie is broken, disrupted or adversely affected by such a decree of the Court. The view expressed is that where the marriage is not dissolved by any decree of the Court, resort to Section 25 of the Act is not allowed as any of the spouses whose marriage continues can resort to other provisions for seeking Page 7 of 11 R.S.A. No.73 of 2018 {{ 8 }} maintenance, like Section 125 of the Criminal Procedure Code or provisions of Hindu Adoptions and Maintenance Act. 10. In case of Chand Dhawan V. Jawaharlal Dhawan, 1993(3)SCC 406 the Supreme Court categorically held that the expression at the passing of passing any decree, as has been used in Section 25, includes a decree of nullity of marriage. The relevant observations read thus:- “On the other hand, under the Hindu Marriage Act, in contrast, her claim for maintenance pendente lite is curated on the pendency of a the kind envisaged litigation of under sections 9 to 14 of the Hindu Marriage Act, and her claim to permanent maintenance or alimony is based on the supposition that either her marital status has been strained or affected by passing a decree for restitution of conjugal rights or judicial separation in favour or against her, or her marriage stands dissolved by a decree of nullity or divorce, with or without her consent. Thus when her marital status is to be affected or disrupted the court does so by passing a decree for or against her. On or at the time of the happening of that event, the court being seisin of the matter, invokes its ancillary or incidental power to grant permanent alimony. Not only that, the court retains the jurisdiction at subsequent stages to fulfill this incidental or ancillary obligation when moved by an application on that behalf by a party entitled to relief. The court further retains the power to change or alter the order in view of the changed circumstances. Thus the whole exercise is within the gambit of a diseased or a broken marriage. And in order to avoid conflict of perceptions the legislature while codifying the Hindu 'Marriage Act preserved the right of permanent maintenance in favour of the husband or the wife, R.S.A. No.73 of 2018 Page 8 of 11 {{ 9 }} as the case may be, dependent on the court passing a decree of the kind as envisaged under sections 9 to 14 of the Act. In other words without the marital status being affected or disrupted by the matrimonial court under the Hindu Marriage Act the claim of permanent alimony was not to be valid as ancillary or incidental to such affectation or disruption. The wife's claim to maintenance necessarily has then to be agitated and Maintenance Act, under 1956 which is a legislative measure later in point of time than the Hindu Marriage Act, 1955, though part of the same socio- legal scheme revolutionizing the law applicable to Hindus. the Hindu Adoptions ……………………………………………………. We have thus, in this light, no hesitation in coming to the view that when by court intervention under the Hindu Marriage Act, affection or disruption to the marital status has come by, at that juncture, while passing the decree, it undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at that time. It also retains the power subsequently to be invoked on application by a party entitled to relief. And such order, in all events, remains within the jurisdiction of that court, to be altered or modified as future situations may warrant. On the husband’s petition, a decree declaring the second marriage as null and void was granted. The Supreme Court held that, as has been held by it in Chand Dhawan’s case (supra), the expression used in the opening part of Section 25 enabling the ‘Court exercising jurisdiction under the Act’ at the time of passing any decree or at any time subsequent thereto to grant alimony or maintenance cannot be restricted only to decree of judicial separation under section 10 or divorce under Section 13. When the legislature has used such wide expression as at the time of passing of any decree, it R.S.A. No.73 of 2018 Page 9 of 11 {{ 10 }} encompasses within the expression all kinds of decrees such as restitution of conjugal rights under Section 9, judicial separation under Section 10, declaring marriage as null and void under section 11, annulment of marriage as voidable under Section 12 and Divorce under Section 13. It is well known and recognized legal position that customary Hindu Law like Law permitted bigamous marriages which were prevalence in all Hindu families and more so in royal Hindu families. It is only after the Hindu Law was codified by enactments including the Hindu Marriage Act that bar against bigamous marriages was created by Section 5(i) of the Act. Keeping into consideration the present state of the statutory Hindu Law, a bigamous marriage may be declared illegal being in contravention of the provisions of the Act but it cannot be said to be immoral so as to deny even the right of alimony or maintenance to a spouse financially weak and economically dependent. It is with the purpose of not rendering a financially dependent spouse destitute that Section 25 enables the court to award maintenance at the time of passing any type of decree resulting in breach in marriage relationship. Moreover, in the given situation when the Court passes an order of dissolution of marriage, it carries the legal obligation to see that the party/ parties in need are thereby not pushed to destitution and vagrancy when even the law clearly provides that a divorced wife is entitled to maintenance till she remarries. After reading the provisions contained in section 24 of the Act alongside with section 25, the reason assigned by the First Appellate Court that without there being a separate application on record during the course or at R.S.A. No.73 of 2018 Page 10 of 11 {{ 11 }} the time of passing the decree for the permanent alimony and maintenance, the Trial Court could not have ordered the payment of permanent alimony under section 25 of the Act is incorrect and untenable. 11. In that view of the matter, this Court is of the considered opinion that the First Appellate Court has committed the grave error of law in setting aside the order as to the grant of permanent alimony to the Appellant (wife) to be paid by the Respondent (husband) as had been ordered by the Trial Court while accepting the prayer of the Respondent (husband) in dissolving his marriage with the Appellant (wife). Above being the answer to the substantial question of law, the judgment and decree passed by the First Appellate Court in denying the permanent alimony to the Appellant (wife) are set aside and those passed by the Trial Court are thus restored in its entirety. 12. Resultantly, the Appeal stands allowed. There shall, however, be no order as to cost. Signature Not Verified Gitanjali Digitally Signed Signed by: GITANJALI NAYAK Designation: Junior Stenographer Reason: Authentication Location: OHC Date: 19-Mar-2024 11:27:44 R.S.A. No.73 of 2018 (D. Dash), Judge. Page 11 of 11