Any judgement for well educated wife no maintenacne?

there are lots of judgment, 

Is your wife worked before marraige or work before filing maintenence case?

this will helpful,, many judgment related to this fact.

 

Karnataka High Court

Karnataka High Court

Dr. E. Shanthi vs Dr. H.K. Vasudev on 22 August, 2005

Equivalent citations: AIR 2005 Kant 417, ILR 2005 KAR 4981

Author: Manjunath

Bench: K Manjunath

ORDER

Manjunath, J.

1. Petitioner is the wife of the respondent. Both of them are Doctors by qualification. The respondent is

working as a Medical officer in a Government Hospital. The respondent has filed a divorce petition in MC.

No. 57/2001 on the file of the Family Court at Mysore. In the said proceedings, the petitioner filed an

application under Section 24 of the Hindu Marriage Act claiming an interim maintenance of Rs. 5,000/ per

month and litigation expenses of Rs. 50,000/-. The said application is dismissed by the Trial Court on the

ground that the petitioner is also attending as a Doctor in "Hariharan Clinic", which according to the

respondent is a very famous clinic in Chennai. This order is called in question in this writ petition.

2. According to the learned Counsel for the petitioner, the name of the petitioner appears on the board of

Hariharan Clinic as one of the consulting Doctors and the said name appears along with her brother prior to

marriage and even though she is not practicing as a Doctor, her name on the board continuous and therefore,

petitioner is entitled for a separate maintenance.

3. Admittedly, petitioner is residing with her parents at Chennai and whose brother is also a doctor. When the

petitioner was practicing prior to marriage, when her name continuous on the board of the clinic, the Trial

Court is justified in rejecting the application of the petitioner. There is no difficulty for the petitioner to work

as a Doctor. Even if the petitioner is not working as a doctor in the clinic of her brother, since there are no

impediments for her to work along with her brother as a doctor and when she is capable of earning, this Court

is of the opinion that the Trial Court is justified in rejecting the application of the petitioner. When the

petitioner is capable of earning and having required qualification and that when she was working as a doctor

prior to marriage, there cannot be any difficulty for her to continue the same profession. Therefore, Section 24

of the Hindu Marriage Act cannot come to the aid of such persons. Accordingly, this petition has to be

rejected.

4. At this stage, learned Counsel for the petitioner submits that out of the Wed-lock parties have got a minor

daughter who is studying in school. When the parties are having a daughter out of their wedlock, it is the

responsibility of the father to maintain the child. Admittedly, the respondent is working as a Medical Officer

at Chamarajanagar, considering his salary and the fact that he has to maintain his aged parents, this Court

directs the respondent herein to pay a sum of Rs. 2,500/- per month from the date of filing of this petition

before this Court to maintain the child. Accordingly, the petition is disposed of.

Dr. E. Shanthi vs Dr. H.K. Vasudev on 22 August, 2005

N THE HIGH COURT OF DELHI AT NEW DELHI
CM(M) 1153/2008
KAVITA PRASAD ….. Petitioner
Through: Mr. S.D. Singh, Adv.
versus
RAM ASHRAY PRASAD ….. Respondent
Through:
CORAM:HON’BLE MR. JUSTICE SHIV NARAYAN DHINGRA
O R D E R
01.10.2008
The petitioner who is an MBBS qualified Doctor and admittedly had been in practice before, claims that she was sitting at home despite being a qualified Doctor and does not work. The petitioner claimed maintenance against her husband who is in service. The Trial Court granted maintenance of Rs.4,000/- per month. This petition is made against observation of the Trial Court that she was working somewhere and earning around Rs.8,000 to 10,000/- PM and that the maintenance granted by the Trial Court was made subject to adjustment of the maintenance being received by her under Section 125. Since counsel for the petitioner states that petitioner is not working anywhere, despite being a qualified Doctor, I consider that as she is receiving maintenance from husband, the Court should not allow her experience and qualification to go waste. I consider that she should be directed to work as a honorary Doctor in some public welfare institute or school free of charges where she can take care of health of the poor people. Let her come to Court and give an undertaking that she was prepared to work without charging anything in any institution named by this Court around her house minimum 5 hours a day and 6 days a week, so long she receives maintenance from her husband on the plea of being unemployed.
List on 23rd October, 2008.
SHIV NARAYAN DHINGRA,J
OCTOBER 01, 2008

Madhya Pradesh High Court

Equivalent citations: II (2000) DMC 170
Bench: J Chitre
Smt. Mamta Jaiswal vs Rajesh Jaiswal on 24/3/2000
ORDER
J.G. Chitre, J.
1. The petitioner Mamta Jaiswal has acquired qualification as MSc. M.C. M.Ed, and was working in Gulamnabi Azad. College of Education, Pusad, Distt. Yeotmal (MHS). The husband Rajesh Jaiswal is sub-engineer serving in Pimampur factory. The order which is under challenge by itself shows that Mamta Jaiswal, the wife was earning Rs. 4,000/- as salary when she was in service in the year 1994. The husband Rajesh Jaiswal is getting salary of Rs. 5,852/-. The Matrimonial Court awarded alimony of Rs. 800/- to Mamta Jaiswal per month as pendente lite alimony, Rs. 400/- per month has been awarded to their daughter Ku, Diksha Jaiswal. Expenses necessary for litigation has been awarded to the tune of Rs. 1,500/-. The Matrimonial Court has directed Rajesh Jaiswal to pay travelling expenses to Mamta Jaiswal whenever sheattends Court for hearing of them matrimorial petition pending between them. Matrimonial petition has been filed by husband Rajesh Jaiswal for getting divorce from Mamta Jaiswal on the ground of cruelty. This revision petition arises on account of rejection of the prayer made by Mamta Jaiswal when she prayed that she be awarded the travelling expenses of one adult attendant who is to come with her for attending Matrimonial Court.
2. Mr. S.K. Nigam, pointed out that the petition is mixed natured because if at all it is touching provisions of Section 26 of Hindu Marriage Act, 1955 (hereinafter referred to as Act for convenience) then that has to be filed within a month. Mr. Mev clarified that it is a revision petition mainly meant for challenging pendente lite alimony payable by the husband in view of Section 24 of the Act. He pointed out the calculations of days in obtaining the certified copies of the impugned order. In view of that, it is hereby declared that this revision petition is within limitation, entertainable, keeping in view the spirit of the Act and Section 24 of it.
3. A wife is entitled to get pendente lite alimony from the husband in view of provisions of Section 24 of the Act if she happens to be a person who has no independent income sufficient for her to support and to make necessary expenses of the proceedings. The present petitioner, the wife, Mamta Jaiswal has made a . prayer that she should be paid travelling expenses of one adult member of her family who would be coming to Matrimonial Court at Indore as her attendant. Therefore, the question arises firstly, whether a woman having such qualifications and once upon a time sufficient income is entitled to claim pendente lite alimony from her husband in a matrimonial petition which has been filed against her for divorce on the ground of cruelty. Secondly, whether such a woman is entitled to get the expenses reimbursed from her husband if she brings one adult attendant alongwith her for attending the Matrimonial Court from the place where she resides or a distant place.
4. In the present case there has been debate between the spouses about their respective income. The husband Rajesh has averred that Mamta is still serving and earning a salary which is sufficient enough to allow her to support herself. Wife Mamta is contending that she is not in service presently. Wife Mamta is contending that Rajesh, the husband is having salary of Rs. 5,852/- per month. Husband Rajesh is contending that Rs. 2,067/- out his salary, are deducted towards instalment of repayment of house loan. He has contended that Rs. 1,000/- are spent in his to and fro transport from Indore to Pithampur. He has also detailed by contending that Rs. 200/- are being spent for the medicines for his ailing father. And, lastly, he has contended that by taking into consideration these deductions as meagre amount remains available for his expenditure.
5. It has been submitted that Mamta Jaiswal was getting Rs. 2,000/- as salary in the year 1994 and she has been removed from the job of lecturer. No further details are available at this stage. Thus, the point is in a arena of counter allegations of these fighting spouses who are eager to peck each other.
6. In view of this, the question arises, as to in what way Section 24 of the Act has to be interpreted: Whether a spouse who has capacity of earning but chooses to remain idle, should be permitted to saddle other spouse with his or her expenditure ? Whether such spouse should be permitted to get pendente lite alimony at higher rate from other spouse in such condition ? According to me, Section 24 has been enacted for the purpose of providing a monetary assistance to such spouse who is incapable of supporting himself Or herself inspite of sincere efforts made by him or herself. A spouse who is well qualified to get the service immediately with less efforts is not expected to remain idle to squeeze out, to milk out the other spouse by relieving him of his or her own purse by a cut in the nature of pendente lite alimony. The law does not expect the increasing number of such idle persons who by remaining in the arena of legal battles, try to squeeze out the adversory by implementing the provisions of law suitable to their purpose. In the present case Mamta Jaiswal is a well qualified woman possessing qualification like M.Sc. M.C. M.Ed. Till 1994 she was serving in Gulamnabi Azad Education College. It impliedly means that she was possessing sufficient experience. How such a lady can remain without service ? It really puts a bug question which is to be answered by Mamta Jaiswal with sufficient congent and believable evidence by proving that in spite of sufficient efforts made by her, she was not able to get service and, therefore, she is unable to support herself. A lady who is fighting matrimonial petition filed for divorce, cannot be permitted to sit idle and to put her burden on the husband for demanding pendente lite alimony from him during pendency of such matrimonial petition. Section 24 is not meant for creating an army of such idle persons who would be sitting idle waiting for a 'dole' to be awarded by her husband who has got a grievance against her and who has gone to the Court for seeking a relief against her. The case may be vice verssa also. If a husband well qualified, sufficient enough to earn, site idle and puts his burden on the wife and waits for a 'dole' to be awarded by remaining entangled in litigation. That is also not permissible. The law does not help indolents as well idles so also does not want an army of self made lazy idles. Everyone has to earn for the purpose of maintenance of himself or herself, atleast, has to make sincere efforts in that direction. If this criteria is not applied, if this attitude is not adopted, there would be a tendency growing amongst such litigants to prolong such litigation and to milk out the adversory who happens to be a spouse, once dear but far away after an emerging of litigation. If such army is permitted to remain in existence, there would be no sincere efforts of amicable settlements because the lazy spouse would be very happy to fight and frustrate the efforts of amicable settlement because he would be reaping the money in the nature of pendente lite alimony, and would prefer to be happy in remaining idle and not bothering himself or herself for any activity to support and maintain himself or herself That cannot be treated to be aim, goal of Section 24. It is indirectly against healthyness of the society. It has enacted for needy persons who in spite of sincere efforts and sufficient effort are unable to support and maintain themselves and are required to fight out the litigation jeopardising their hard earned income by toiling working hours.
7. In the present case, wife Mamta Jaiswal, has been awarded Rs. 800/- per month as pendente lite alimony and has been awarded the relief of being reimbursed from husband whenever she makes a trip to Indore from Pusad, Distt. Yeotmal for attending Matrimonial Court for date of hearing. She is well qualified woman once upon time abviously serving as lecturer in Education College. How she can be equated with a gullible woman of village ? Needless to point out that a woman who is educated herself with Master's degree in Science, Masters Degree in Education,. would not feel herself alone in travelling from Pusad to Indore, when atleast a bus service is available as mode of transport. The sumbission made on behalf of Mamta, the wife, is not palatable and digestable. This smells of oblique intention of putting extra financial burden on the husband. Such attempts are to be discouraged.
8. In fact, well qualified spouses desirous of remaining idle, not making efforts for the purpose of finding out a source of livelihood, have to be discouraged, if the society wants to progress. The spouses who are quarelling and coming to the Court in respect of matrimonial disputes, have to be guided for the purpose of amicable settlement as early as possible and, therefore, grant of luxurious, excessive facilities by way of pendente lite alimony and extra expenditure has to be discouraged. Even then, if the spouses do not think of amicable settlement, the Matrimonial Courts should dispose of the matrimonial petitiorisas early as possible. The Matrimonial Courts have to keep it in mind that the quarells between the spouses create dangerous impact on minds of their offsprings of such wedlocks. The offsprings do not understand as to where they should see ? towards father or towards mother ? By seeing them both fighting, making allegations against each other, they get bewildered. Such bewilderedness and loss of affection of parents is likely to create a trauma on their minds and brains. This frustration amongst children of tender ages is likely to create complications which would ruin their future. They cannot be exposed to such danger on account of such fighting parents.
9. In the present case the husband has not challenged the order. Therefore, no variation or modification in it is necessary though this revision petition stands dismissed. The Matrimonial Court is hereby directed to decide the matrimonial petition which is pending amongst these two spouses as early as possible. The Matrimonial Court is directed to submit monthwise report about the progress of the said matrimonial petition to this Court so as to secure a continuous, unobstructed progress of matrimonial petition. No order as to costs. The amount of pendente lite alimony payable to Mamta Jaiswal by husband Rajesh Jaiswal should be deposited by him within a month by counting the date from the date of order. The failure on this aspect would result in dismissal of his matrimonial petition. He should continue payment of Rs. 400/- per month to his daughter Ku. Diksha Jaiswal right from the date of presentation of application of her maintenance i.e. 14.5.1998. That has to be also deposited within a month. He may take out sufficient money for that from his savings or take a loan from some good concern or loan granting agencies. Failure in this aspect also would result in dismissal of his petition. C.C.

very well piece of information sir............

 

No Maintenance awarded by Hon'ble supreme court .

 

Equivalent citations: 1993 SCR (3) 954, 1993 SCC (3) 406

Bench: Punchhi

PETITIONER:

SMT. CHAND DHAWAN

Vs.

RESPONDENT:

JAWAHARLAL DHAWAN

DATE OF JUDGMENT11/06/1993

BENCH:

PUNCHHI, M.M.

BENCH:

PUNCHHI, M.M.

YOGESHWAR DAYAL (J)

CITATION:

1993 SCR (3) 954 1993 SCC (3) 406

JT 1993 (4) 22 1993 SCALE (3)1

ACT:

%

Hindu Marriage Act, 1955-S. 25 and Ss. 9 to 14, 24 & 28-`Any decree' in S. 25-Dismissing of matrimonial

petition, held, does not constitute `only decree' for award of permanent maintenance or alimony--Marital

status has to be affected or disrupted for maintenance to be awarded--Evidence Act, 1862, s. 41

Hindu Marriage Act, 1955--S.25-Hindu Adoptions and Maintenance Act, 1956--S.18--Held, Court cannot

grant relief of maintenance simplicitor obtainable under one Act in proceedings under the other-Code of

Criminal Procedure 1973, s. 125.

Interpretation of Statutes-Hindu Marriage Act. 1955-S. 25- Hindu Adoptions and Maintenance Act, 1956-S.

18-Held, where both statutes codified and clear on their subjects, liberality of interpretation cannot permit

interchangeabil- ity so as to destroy distinction.

HEADNOTE:

The parties were married in 1972 in Punjab. In 1985, a petition for divorce by mutual consent was filed in

court at Amritsar The appellant-wife alleged that she was not a consenting party, and the petition was

Smt. Chand Dhawan vs Jawaharlal Dhawan on 11 June, 1993

Indian Kanoon - https://indiankanoon.org/doc/1162687/ 1dismissed in 1987 following an agreement on the basis of which she would be put back in the matrimonial

home. However, barely three months later, the respondent husband filed a regular petition for divorce at

Ghaziabad inter alia alleging adultery against his wife. The appellant-wife refuted the charge. The Court

granted her maintenance pendente lite at Rs. 1,000 p.m. The husband not paving this amount, the divorce

proceedings stand stayed.

On 22nd March, 1990 the appellant moved the District judge, Amritsar and was granted Rs. 6,000as litigation

expenses and Rs. 2,000as maintenance pendente lite from the date of application under S. 24. She also

claimed permanent alimony and maintenance under S. 25 of the Hindu Marriage Act, 1955. On appeal, the

High Court held that an application under S. 25 was not

955

maintainable as the matrimonial court at amritsar had not passed any decree for restitution of conjugal rights,

judicial separation, nullity or divorce. Sequelly it quashed the order under S. 24 of the Act.

Dismissing the appeal, this Court

HELD:The right of permanent maintenance in favour of the husband or the wife is dependent (in the Court

passing a degree of the kind envisaged under Ss. 9to 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 ancilliary or incidental to such affectation or disruption.

Kadia Martial Purshotham v. Kadia Lilavati Gokaldas AIR 1961 Guj 202; Shantaram Gopalshet Narkar v.

Hirabai, AIR 1962 Bom 27 Minarani Majumdar v. Dasarath Majumdar AIR 1963 Cal 428; Shantaram Dinkar

Karnik v. Malti Shantaram Karnik AIR 1964 Bom 83; Akasam Chinna Babu v.Akasam Parbati, AIR 1967 Ori

163; Gurcharan Kaur v. Ram Chand, AIR 1979 P & H 206; Darshan Singh v. Mst. Daso., AIR 1980 Raj 102;

Smt. Sushama v. Satish Chander, AIR 1984 Del 1; Vinod Chandra Sharma v. Smt. Rajesh Pathak, AIR 1988

All 150 and Ranganatham v. Shyamala AIR 1990 Mad 1, affirmed. Smt. Swaran Lata v.Sukhvinder Kumar

(1986) 1 Hindu LR 363; Sadanand Sahadeo Rawool v. Sulochana Sadanand Rawool, AIR 1989 Bom 220;

Surendra Singh Chauhan v. Mamta Chauhan, 11 1990 Divorce & Matrimonial Cases 208; Modilal kalaramji

Jain v. Lakshmi Modilal Jain AlR 1991 Bom 440; and Shilla Jagannadha Prasad v. Smt. Shilla Lalitha Kumari

1988 Hindu LR 26, overruled.

Durga Das v. Smt. Tara Rani, AIR & H 141, referred to. 2.A Court intervening under the Hindu Marriage Act

undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at the

juncture when the marital status is affected or disrupted. It also retains the power subsequently to be invoked

on application by a party entitled to relief. A nd such order, in all events, remains within the jurisdiction of

that court, to be altered or modified as future situations may warrant. 3.While sustaining her marriage and

preserving her marital status, a Hindu wife's claim to maintenance is codified is S.18 of the Hindu Adoptions

956

and Maintenance Act, 1956 and must necessarily be agitated thereunder.

4.The court is not at liberty to grant relief of maintenance simplicitor obtainable under one Act in proceedings

under the other. As is evident, both the statutes are codified as such and are clear on their subjects and by

liberality of interpretation inter-changeability cannot be permitted so as to destroy the distinction on the

subject of maintenance. Carew, & Co. v. Union of India [1975] 2 SCC 791 and Motor Owners' Insurance Co.

Ltd. v. Jadavjit Keshavji Modi [1981] 4 SCC 660, referred to.

Smt. Chand Dhawan vs Jawaharlal Dhawan on 11 June, 1993

Indian Kanoon - https://indiankanoon.org/doc/1162687/ 25.When distinctive claims are covered distinctly under two different statutes, choosing of one forum or the

other, are not mere procedural technicalities or irregularities. These are matters which go to the root of the

jurisdiction. The matrimonial court, a court of special jurisdiction. is not meant to pronounce upon a claim of

maintenance without having to go into the exercise of passing a decree which implies that unless it goes

onwards, Moves or leads through, to affect or disrupt the marital status between the parties. By rejecting a

claim, the matrimonial court does make an appealable decree. in terms of section 28, but neither affects nor

disrupts the marriage. It certainly does not pass a decree in terms of section 25 for its decision has not moved

or done anything towards, or led through, to disturb the marriage, or to confer or to take away any legal

character or status.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2653-54 of 1991.

From the Judgment and Order dated 15.2.91 of the Punjab and Haryana High Court in Civil Revision Nos.

2998 and 2919 of 1990.

D.V. Sehgal and N.K. Aggarwal for the Appellant. G.L, Saghi, P.P. Tripathi and Suchinto Chatterji for the

Respondent.

The Judgment of the Court was delivered by PUNCHHI, J. The point which requires determination in these

two appeals, arising from a common judgment and order dated February 15, 1991 of a Division Bench of the

Punjab and Haryana High Court at Chandigarh, in Civil Revision Nos. 2918 and 2919 of 1990 is, whether the

payment of alimony is admissible

957

without the relationship between the spouses being terminated.

The wife-appellant was married to the husband-respondent on September 19,1972 at Amritsar, in the State of

Punjab. Three children were born from the wed lock and are at present living with their father. Out of them

two are males, their respective years of birth being 1973 and 1980 and the third is a female born in the year

1976. On 28-8- 1985 a petition under section 13-B of Hindu Marriage Act, 1955 (hereafter referred to as the

Act') seeking divorce by mutual consent was received by the court of the Additional District Judge, Amritsar

purported to have been failed jointly by the two spouses. It was stated therein that the parties had been living

separately for over a year due to incompatibility of temperament and their effort to settle their differences

amongst themselves, or with the aid of friends and relatives, had been futile. On receipt the petition was kept

pending, as was the requirement of section 13-B of the Act. According to the wife she was not a consenting

party to the filing of such petition at all. Her version was that the husband had duped her in obtaining her

signatures on blank papers on a false pretext and in turn had employed those papers in the said petition for

divorce. On coming to know of the pendency of the petition, she immediately filed objections before the

court, obstructing the grant of petition. The respective pleas of the parties were put to issue and evidence was

led. According to the wife some understanding later was reached between the parties on the basis of which she

was to be put back in the matrimonial home and thus the petition was got dismissed on 19-8-1987, on the

basis of the joint statement of the parties before the Additional District Judge, Amritsar which was to the

following effect:

"We agree that applications under sections 24 and 25 of Hindu Marriage Act may be dismissed. We also agree

that since the parties have not been able to make a joint statement within a period of six months of the original

petition, the main petition under section 13B of the Hindu Marriage Act may be dismissed. Otherwise too, the

parties to the marriage do not want to proceed with their main

Smt. Chand Dhawan vs Jawaharlal Dhawan on 11 June, 1993

Indian Kanoon - https://indiankanoon.org/doc/1162687/ 3application under section 13 of the Hindu Marriage Act and the same be also dismissed and the parties may be

left to bear their own costs.

On the basis of the above statement, the court passed the following order, the same day:

"The applicant and counsel for the parties have made their statements recorded separately the main petition

under section 13 and

958

also applications under sections 24 and 25 of the Hindu- marriage Act are dismissed as withdrawn. The parties

are left to bear their own costs. The file be consigned."

It appears that the dismissal of the petition under section 13-B led only to a temporary truce, and not peace as

hoped. Rehabilitation in the matrimonial home evaded the wife. The husband, who in the meantime had

established his business at Ghazibad in Utter Pradesh, barely three months after the dismissal of the petition

under section 13-B. approached the District Court at Ghaziabad in a regular petition for divorce under section

13 of the Act levelling, amongst others, allegations of adultery against the wife. To meet the offensive the

wife refuted the charge of adultery and prayed to the Ghaziabad Court grant of maintenance pendente lite,

which the Court fixed at Rs. 1000 per month. It appears since the husband had obstacled payment of

maintenance pendente lite, divorce proceedings stand stayed under orders of the High Court of Allahabad,

until the order of grant of maintenance pendente lite was obeyed. The matter thus stands stagnated there.

The wife then went in an offensive. She moved the court of Additional District Judge, Amritsar on 22-3-1990,

under section 15 of the Hindu Marriage Act for the grant of permanent alimony on the plea that she was

facing starvation, when her husband was a multi-millionaire, having cars, telephone facilities and other

amenities of life. Simultaneously she moved the court under section 24 of the Hindu Marriage Act for

maintenance pendente lite and litigation expenses. After a grim contest between the parties the Additional

District Judge, Amritsar on September 20, 1990 allowed the petition under section 24 of the Act granting her a

sum of Rs. 6000 as litigation expenses and Rs. 2000 per month as maintenance pendente lite, from the date of

application. The husband challenged the said order of grant in revision before the High Court of Punjab and

Haryana at Chandigarh. The wife too approached the High Court in revision seeking enhancement of sums

under both counts. Both the revision petitions being referred to a larger bench were disposed of by the

common judgment under appeal sustaining the objection of the husband that an application under section 25

of the Act was, in the facts and circumstances, not maintainable; the Matrimonial Court at Amritsar, in the

earlier litigation, having not passed any decree of the variables known as Restitution of Conjugal Rights,

Judicial Separation, Nullity of Marriage, or Divorce, so as to quash proceedings under section 25 and sequally

quashing the order under section 24 of the Act granting litigation expenses and maintenance pendente lite.

Hence these appeals.

959

Section 25 of the Act, as it now stands, after amendment by Act 68 of 1976 is reproduced hereunder:

"25 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

purpose by either the wife o r

the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance

and support such cross 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

Smt. Chand Dhawan vs Jawaharlal Dhawan on 11 June, 1993

Indian Kanoon - https://indiankanoon.org/doc/1162687/ 4court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property

of the respondent.

(2)If the court is satisfied that there is, a change in the circumstances of either party at any time after it has

made an order under sub- section (1), it may at the instance of either party, very, modify or rescind any such

order in such manner as the court may deem just. (3)If the court is satisfied that the party in whose favour an

order has been made under this section has remarried or, if such party is the wife, that she has not remained

chaste, or, if such party is the husband, that he has had s*xual intercourse with any woman outside wedlock,

[it may at the instance of the other party very, modify or rescind any such order in such manner as the court

may deem just]." It is relevant to reproduce Section 28 as well:

"28 APPEAL FROM DECREES AND ORDERS- (1) All decrees made by the court in any proceeding under

this Act shall, subject to the provisions of sub-section (3) be appealable as decrees of the court made in the

exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals

ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction.

(2) Orders made by the court in any proceeding under this Act, under

960

section 25 or Section 26 shall, subject to the provisions of sub-section (3), be appealable if they are not

interim orders and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of

the court given in exercise of its original civil jurisdiction.

(3) There shall be no appeal under this section on the subject of costs only.

(4) Every appeal under this section shall be preferred within a period of thirty days from the date of the decree

or order."

Right from its inception, at the unamended stage, the words "at the time of passing any decree or any time

subsequent thereto" posed difficulty. The majority of the High Courts in the country took the view that those

words indicated that an order for permanent alimony or maintenance in favour of the wife or the husband

could only be made when a decree is passed granting any substantive relief and not where the main petition

itself is dismissed or withdrawn. It was also gathered that if no request for alimony was made at the time of

passing the decree the same relief could be sought subsequently on an application. The relief of permanent

alimony was deduced to be ancilliary or incidental to the substantive relief, and it was given to the party to

whom such relief was due. The expression "any decree" was viewed to have been used having regard to the

various kinds of decrees such as decree for Restitution of Conjugal Rights, Judicial Separation, Nullity of

Marriage, and Divorce, which could be passed either on contest or consent. Some of the High Courts also had

occasion to distinguish between the expression "passing any decree" referred to in section 25 (1) with "decrees

made" referred to in section 28 providing for appeals from decrees and orders made by the Court in any

proceeding under the Act, and such decrees being appealable, as decrees of the Court made in exercise of its

original civil jurisdiction. It led to the determination of the question whether the denial of relief under the Act,

when making a decree in the sense appealable under section 28, could be it a decree passed within the

meaning of Section 25 entitling the respective spouses to claim permanent alimony thereunder. On this

question too there has been rife a difference of opinion.

A Division Bench of the Gujarat High Court in Kadia Harilal Purshottam v. Kadia Lilavati Gokaldas AIR

[1961] Gujarat 202; ruled that the words "at the time of passing any decree or any time subsequent thereto"

occurring in section 25 meant passing of any decrees of the kind referred to in the earlier provisions of the Act

and not at the time of dismissing the petition for any relief provided in those 961

Smt. Chand Dhawan vs Jawaharlal Dhawan on 11 June, 1993

Indian Kanoon - https://indiankanoon.org/doc/1162687/ 5sections, or any time subsequent thereto. It was viewed that the expression "any decree" did not include an

order of dismissal and that the passing of an order of dismissal of the petition could not be regarded as the

passing of decree within the meaning of section 25. On that view a petition for permanent alimony preferred

by the wife was dismissed when the petition of the husband for restitution of conjugal rights had been

dismissed.

In Shantaram Gopalshet Narkar v. Hirabai, AIR [1962] Bombay 27 Vol. 49, a learned Single Judge of the

Bombay High Court took the view that in order to confer jurisdiction upon the court to proceed under section

25(1) there must be a decree as contemplated under the Hindu Marriage Act and one of the decrees can. be

under section 10(1) (B). And when the petition was allowed to be withdrawn, there was no decree passed in

favour of the husband, and if there was no decree, the court had no jurisdiction to pass any order granting

permanent alimony to the wife under section 25(1). In Minarani Majumdar v. Dasarath Majumdar AIR [1963]

Calcutta 428 Vol. 50, a Division Bench of the Calcutta High Court ruled that an order dismissing a petition by

the husband for divorce under section 13 is not a decree within the meaning of section 25 and as such when no

substantive relief is granted under sections 9 to 14, there is no passing of a decree as contemplated by section

25 and hence no jurisdiction to make an order for maintenance under the said section. Harilal's case (supra) of

the Gujarat High Court was noticed and relied upon.

A learned Single Judge of the Bombay High Court in Shantaram Dinkar Karnik v. Malti Shantaram Karnik,

AIR [1964] Bombay 83 - vol. 51 relying on the earlier decision of that court in Shantaram Gopalshet's case

(supra) and kadia Hiralal's case (supra) reaffirmed the view that the expression "passing of any decree" only

referred to passing of any decrees provided for in section 9 to 13 of the Act, even though technically speaking

dismissal of a suit or a petition may be called a decree but not for the purpose of section 25 confering

jurisdiction on the Matrimonial Court to grant permanent alimony.

A Division Bench of the Orissa High Court in Akasam Chinna Babu v. Akasam Parbati & Another AIR

[1967] Orissa 163 - Vol. 54 denied the relief of permanent alimony when the petition for divorce of the

husband had been dismissed. The views of the Bombay High Court and the, Gujarat High Court above

referred to were taken in aid to get to that view. A three-Judge full bench of the Punjab and Haryana High

Court in Durga

962

as v. Smt. Tara Rani,AIR (1971) Punjab and Haryana 141 - Vol. 58, in a different context, while determining

the question whether a party to a decree or divorce could apply for maintenance under sub-section (1) of

section 25 of the Act after which decree has been granted, ruled that the proceedings for grant of permanent

alimony were incidental to the main proceeding and as such an application for alimony could be made even

after the grant of the decree for divorce.

A learned Single Judge of that Court, however, in Gurcharan Kaur v. Ram chand AIR 1979 Punjab and

Haryana 206 Vol. 66 even while relying, on the full bench decision afore- referred went on to deny permanent

alimony to the wife hose claim for decree of Nullity of Marriage stood dismissed and on that basis the petition

for alimony was held not maintainable.

In Darshan Singh vs. Mst. Daso AIR 1980 Rajasthan 102 - Vol. 67 a learned single Judge of the Rajasthan

High Court made a distinction between the expression "passing any decree" occurring in section 25 and the

expression decree made" under section 28. He viewed that the former expression meant granting any relief of

the nature stated in sections 9 to 13 while the later meant granting or refusing the relief. In other words, it

meant that passing of any decree as to mean granting any relief, and the making of any decree was to mean

granting or refusing any relief. A Division Bench of the Delhi High court too in Smt. Sushma v. Shri Satish

Chander AIR 1984 Delhi 1 Vol. 71 taking stock of the above-referred to views of the Rajasthan, Orissa.

Bombay, Calcutta and Gujarat High Courts affirmedly took the view that the passing of the decree in section

Smt. Chand Dhawan vs Jawaharlal Dhawan on 11 June, 1993

Indian Kanoon - https://indiankanoon.org/doc/1162687/ 625 meant the passing of a decree of divorce, Nullity, Restitution of Conjugal Rights or Judicial Separation and

not the passing of a decree dismissing the petition. It was further held that if the petition fails then no decree is

passed, i.e., the decree is denied to the applicant and therefore alimony cannot be granted in a case where a

decree is refused because in such a case the marriage subsists. The word "decree" in matrimonial cases was

held to have been used in a special sense different from that in which it is used in the Civil Procedure Code.

Following Delhi High Court's decision in Sushma's case (supra), a learned Single Judge of the Allahabad High

Court in Vinod Chandra Sharma v. Smt. Rajesh Pathak AIR 1988 Allahahad 150 - Vol. 75 opined that when

an application for divorce is dismissed, there is no decree passed and obviously therefore alimony cannot he

granted because in such a case the marriage subsists.

963

A learned Single Judge of the Madras High Court in Ranganatham v. Shyamla AIR 1990 Madras 1- Vol. 77

too following the above decisions held that the existence of any of the decrees referred to in sections 9 to 13 is

a condition precedent to the exercise of jurisdiction under section 25 (1) of the Act and the granting of

ancilliary relief for permanent alimony and maintenance, when the main petition was dismissed, was not

permissible. A divergent view, however, was struck by a learned Single Judge of the Punjab and Haryana

High Court in Smt. Swaran Lata v. Sukhvinder Kumar(1986) 1 Hindu Law Reporter 363 taking the view that

when the rights of the parties stand determined conclusively with regard to matters in controversy, irrespective

as to whether relief is granted or not, it culminates in a decree and on the basis of that decree, the wife would

be entitled to claim maintenance or permanent alimony under section 25 of the Act. Not only was on such

interpretation of sections 25 and 28 the view taken but liberality of interpretation was injected to justify the

view. It was expressed that when the right of the wife to maintenance was assured under section 125 of the

Code of Criminal Procedure, 1973 and section 18 of the Hindu Adoptions and Maintenance Act, 1956 and

when that right of the wife was not being disputed, the court, in order to avoid multiplicity of proceedings

could give effect to that right, wherever possible, in a proceeding under section 25 of the Act itself. There the

objection of the husband to the jurisdiction was termed as technical and the maintainability of claim under

section 25 was upheld. A learned Single Judge of the Bombay High Court in Sadanand Sahadeo Rawool v.

Sulochana Sadanand Rawool, AIR 1989 Bombay 220- Vol. 76 also took a similar view and based his decision

on "necessity of the times" expressing that technicalities should not be allowed to away any court. In the

situation, the dismissal of petition for divorce was held to be no bar to grant maintenance under section 25 to

the successful spouse.

Then in Surendra Singh Chaudan v. Mamta Chauhan II(1990) Divorce & Matrimonial Cases 208 a learned

Single Judge of the Madhya Pradesh High Court taking the view that the dismissal of a petition amounts to

passing of a decree for the purposes of Section 25 of the Act held that claim for permanent alimony was

maintainable. The learned Judge ruled that there appeared to be no justification for curtailing the ambit of the

words to go on to hold that a decree is not a "decree" for the purposes of section 25 of the Act, though a

"decree" for the purposes of section 28 of the Act. Here again the intention of the legislature was gathered

avoiding multiplicity of proceedings. so that every dispute between the parties, particularly connected with

matters like maintenance etc. should be settled in the

964

same proceedings.

A learned Single Judge of the Bombay High Court in Modilal Kalaramji Jain v. Lakshmi Modilal Jain AIR

1991 Bombay 440 - Vol. 78 omitting the word "passing" from the expression, interpreted the expression "any

decree" to include an order refusing to grant matrimonial relief and on that basis held adjudication of claim of

permanent maintenance to be within the jurisdiction of the matrimonial court. Same is the view of the Andhra

Pradesh High Court in Shilla Jagannadha Prasad alias Ram v. Smt. Shilla Lalitha Kumari [1988] 1 Hindu Law

Smt. Chand Dhawan vs Jawaharlal Dhawan on 11 June, 1993

Indian Kanoon - https://indiankanoon.org/doc/1162687/ 7Reporter 26 and some other cases which need not be multiplied.

The preamble to the Hindu Marriage Act suggests that it is an Act to amend and codify the law relating to

marriage among Hindus. Though it speaks only of the law relating to marriage, yet the Act itself lays down

rules relating to the solemnization and requirements of a valid Hindu marriage as well as Restitution of

Conjugal Rights, Judicial Separation, Nullity of Marriage, Divorce, legitimacy of children and other allied

matters. Where the statute expressly codifies the law, the court as a general rule, is not at liberty to go outside

the law so created, just on the basis that before its enactment another law prevailed. Now the other law in the

context which prevailed prior to that was the unmodified Hindu law on the subject. Prior to the year 1955 or

1956 maintenance could be claimed by a Hindu wife through court intervention and with the aid of the case

law developed. Now with effect from December 21, 1956, the Hindu Adoptions and Maintenance Act is in

force and that too in a codified form. Its preamble too suggests that it is an Act to amend and codify the law

relating to adoptions and maintenance among Hindus. Section 18 (1) of the Hindu Adoptions and

Maintenance Act, 1956 entitles a Hindu wife to claim maintenance from her husband during her life-time.

Sub- section (2) of section 18 grants her the right to live separately, without forfeiting her claim to

maintenance, if he is guilty of any of the misbehaviours enumerated therein or on account of his being in one

of objectionable conditions as mentioned therein. So while sustaining her marriage and preserving her marital

status, the wife is entitled to claim maintenance from her husband. On the other hand, under the Hindu

Marriage Act, in contrast, her claim for maintenance pendente lite is durated on the pendency of a litigation of

the kind envisaged 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, 965

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 siezen of

the matter, invokes its ancilliary or incidental power to grant permanent alimony. Not only that, the court

retains the jurisdiction at subsequent stages to fulfil this incidental or ancilliary obligation when moved by an

application on that behalf by a party entitled to relief. The court further retains the power to chance or alter the

order in view of the changed circumstances. Thus the whole exercise is within the gammit of a diseased of 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, 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 ancilliary or incidental to such affectation

or disruption. The wife's claim to maintenance necessarily has then to be agitated under the Hindu Adoptions

and Maintenance Act, 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. Section 41 of

the Evidence Act inter alia provides that a final judgment, order or decree of a competent court in the exercise

of matrimonial jurisdiction, which confers upon or takes away from any person any legal character, or which

declares any person to be entitled to such character, is relevant. And that such judgment, order or decree is

conclusive proof as to the conferral, accrual,or taking away of such. legal character from a point of time as

declared by the court. Such judgments are known as judgments in rem, binding the whole world. But the

judgment of that kind must have done something positive, onwards. This provision is indicative of the quality

of matrimonial jurisdiction. 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. In contrast, without affectation or disruption of the marital

status, a Hindu wife sustaining` that status can live in separation from her husband, and

Smt. Chand Dhawan vs Jawaharlal Dhawan on 11 June, 1993

Indian Kanoon - https://indiankanoon.org/doc/1162687/ 8966

whether she is living in that state or not, her claim to maintenance stands preserved in codification under

section 18 (1) of the Hindu Adoptions and Maintenance Act. The court is not at liberty to grant relief of

maintenance simplicitor obtainable under one Act in proceedings under the other. As is evident, both the

statutes are codified as such and are clear on their subjects and by liberality of interpretation

inter-changeability cannot be permitted so as to destroy the distinction on the subject of maintenance.

Relief to the wife may also be due under section 125 of the Code of Criminal Procedure whereunder an order

of maintenance can be granted after contest, and an order of interim maintenance can be made at the outset,

without much contest. This provision however has two peculiar features: (i) the provision applies to all and

not only to Hindus; and

(ii) maintenance allowance cannot exceed a sum of Rs. 500 per mensem.

But this is a measure in the alternative to provide destitute wives.

This court has ruled that if the language used in a statute can be construed widely so as to salvage the remedial

intendment, the court must adopt it. Of course, if the language of a statute does not admit of the construction

sought, wishful thinking is no substitute, and then, not the court but the legislature is to blame for enacting a

damp squib statute. These are the observations of V.K. Krishna Iyer, J. in Carew and Company v. Union of

India [1975] 2 SCC 791 at pages 803-804. Towards interpreting statutes, the court must endeavour to see its

legislative intendment. Where the language is ambiguous or capable of more than one meaning, the court must

sympathetically and imaginatively discover the true purpose and object of the Provision by filling gaps,

clearing doubts, and mitigating hardships, harshness or unfair consequences. See Motor Owners' Insurance

Company, Limited vs. Jadavji Keshavji Modi and others [1981] 4 SCC 660 paras 14. 15 and 16. These

principles were pressed into service by learned counsel for the appellant contending that if the claim of the

wife for maintenance was otherwise justified on fact and law, the procedures and the for a should not stand in

her way and let her cash on her claim over-ruling all objections. It was asserted that the Amritsar court had

jurisdiction to grant relief, as asked for, because once upon a time it was seisin of the petition for dissolution

of marriage by mutual consent, though such petition was withdrawn. On the afore-analysis and distinction

drawn between the fora and perceptives,

967

it is difficult to come to the view that a claim which is ancilliary or incidental in a matrimonial court under the

Hindu Marriage Act could be tried as an original claim in that court; a claim which may for the moment be

assumed as valid, otherwise agitable in the civil court under the Hindu Adoptions and Maintenance Act, 1956.

As said before, these two enactments keeping apart, the remaining two, i.e., Hindu Succession Act, 1956 and

Hindu Minority and and Guardianship Act, 1956 are a package of enactments, being part of one socio-legal

scheme applicable to Hindus. When distinctive claims are covered distinctly under two different statutes and

agitable in the courts conceived of thereunder, it is difficult to sustain the plea that when a claim is otherwise

valid, choosing of one forum or the other should be of no consequence. These are not mere procedural

technicalities or irregularities, as termed by one line of reasoning by some of the High Courts. These are

matters which go to the root of the jurisdiction. The matrimonial court, a court of special jurisdiction, is not

meant to pronounce upon a claim of maintenance without having to go into the exercise of passing a decree,

which implies that unless it goes onwards, moves or leads through, to affect or disrupt the marital status

between the parties. By rejecting a claim, the matrimonial court does make an appealable degree in terms of

section 28, but neither affects nor disrupts the marriage. It certainly does not pass a decree in terms of section

25 for its decision has not moved or done anything towards, or led through, to disturb the marriage, or to

confer or take away any legal character or status. Like a surgeon, the matrimonial court, if operating, assumes

the obligation of the post operatives, and when not, leaves the patient to the physician.

Smt. Chand Dhawan vs Jawaharlal Dhawan on 11 June, 1993

Indian Kanoon - https://indiankanoon.org/doc/1162687/ 9On the afore analysis we have been led to the conclusion that the step of the wife to move the court of

Additional District Judge, Amritsar for (,rant of maintenance under section 25 of the Hindu Marriage Act was

ill-advised. The judgment of the High Court under appeal could be no other than the one that it was in the

present state of law and the facts and circumstances. It is still open to the wife to stake her claim to

maintenance in other fora. The judgments of the High Courts earlier quoted, and others which have been left

out, which are not in line with our view are over- ruled. The earlier and predominant view was the correct one

and the later an aberration; something unfortunate from the precedential point of view. The appeals thus

inevitably have to and are hereby dismissed, but without any order as to costs.

Before we part with this judgment, we need to mention that while this judgment was reserved, an

Interlocutory Application was received by the Registry, which unnumbered Interlocutory Application was

duly transmitted to us. It is for directing the appellant to pay arrears of maintenance.While granting leave

968

this Court on 8th July, 1991 had ordered that during the pendency of the appeal, but without prejudice to the

respective stands of the spouses, the husband shall pay a sum of Rs. 1000 per mensem by way of maintenance

to the wife month to month by bank draft. In the Interlocutory Application there is an allegation that this

Court's orders have not been complied with. Let notice on the application separately be issued to the

respondent returnable within six weeks to show cause why payment of arrears of maintenance be not secured

to the wife forthwith.

U.R. Appeal dismissed.

969

Smt. Chand Dhawan vs Jawaharlal Dhawan on 11 June, 1993

Indian Kanoon - https://indiankanoon.org/doc/1162687/ 10

Very good information.