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THE HON'BLE SRI JUSTICE D.S.R. VARMA AND THE HON'BLE MS. JUSTICE G. ROHINI
Family Court Appeal No.11 of 2008
23-04-2008
Smt. P. Archana @ Atchamamba
Varada Siva Rama Krishna
Counsel for the petitioner: Sri A. Mahadev
Counsel for the respondent: Sri A. Hanumantha Reddy
:ORDER : (Per Ms. G.Rohini, J)
This appeal is preferred under Section 19(1) of Family Courts Act, 1984 against
the order of the Family Court, Hyderabad, in O.P.No.757 of 2005, dated
12.01.2007.
The wife, whose application under Section 25 of the Hindu Marriage Act,1955, for
maintenance of Rs.4,000/- per month or in the alternative permanent alimony of
Rs.5,00,000/- was dismissed, is the appellant. The respondent herein is the
appellant's husband. For the sake of convenience, the parties shall hereinafter
be referred to as the wife and husband respectively.
The facts, in brief, are as under :
The wife initially filed O.P.No.766 of 2003 in the Family Court, Hyderabad under
Section 13 (1)(ia) of the Hindu Marriage Act, 1955 seeking divorce on the ground
of cruelty. Though the husband contested the petition, on appreciation of the
evidence adduced by both the parties, the Family Court, by order dated
6.10.2004, allowed O.P.No.766 of 2003 and dissolved the marriage by way of
decree of divorce.
It is to be noted that prior to filing of O.P.No.766 of 2003 the wife initiated
criminal proceedings against the husband for the alleged offence under Section
498-A of the Indian Penal Code as well as Sections 4 and 6 of the Dowry
Prohibition Act. However, the said proceedings ended in a compromise under which
the wife and husband agreed to take divorce by consent by filing a petition
under Section 13-B of the Hindu Marriage Act, 1955. The husband also agreed to
pay Rs.70,000/- to the wife towards the value of the gold ornaments and
pasupukumkuma presented to her by her parents at the time of the marriage, apart
from a further sum of Rs.30,000/- towards permanent alimony. The said settlement
dated 19.2.2003 was reduced into writing.
Pursuant to the said Memorandum of Settlement, though a petition under Section
13-B of the Hindu Marriage Act, 1955 was filed on 16.4.2003, since the husband
resiled no decree could be passed and therefore the wife was constrained to file
O.P.No.766 of 2003 under Section 13 (1) (ia) of the Hindu Marriage Act seeking
divorce on the ground of cruelty. As mentioned above, the said Original Petition
was allowed by order dated 6-10-2004 granting a decree of divorce.
Pending O.P.No.766 of 2003 the wife also filed I.A.No.540 of 2003 seeking
recovery of Rs.1,00,000/- agreed to be paid by the husband under the Memorandum
of Settlement dated 19.2.2003 which was marked as Ex.P-5. Though the husband in
his counter contended that his signatures on Ex.P-5 were obtained by coercion
and threat, the Court below disbelieved the same and while granting decree of
divorce allowed I.A.No.540 of 2003 by a separate order on 6.10.2004. However,
having regard to the fact that pursuant to Ex.P-5 Settlement the husband had
already paid Rs.35,000/- to the wife by way of demand draft, the Court below
directed payment of the balance amount of Rs.65,000/- to the wife along with
interest at 6% per annum from the date of the order till the date of realization
within four months.
Subsequently, the wife filed a fresh petition i.e., O.P.No.757 of 2005 before
the Family Court, Hyderabad under Section 25 of the Hindu Marriage Act, 1955
seeking maintenance at the rate of Rs.4,000/- per month or in the alternative
for payment of Rs.5,00,000/- towards permanent alimony pleading that she was
solely dependent on her parents after divorce and that her father had retired
from the service and her mother was bedridden with paralysis and that the meager
pension being received by her father was not sufficient for her survival. Thus,
she prayed for enhanced maintenance in the changed circumstances.
The husband filed a detailed counter opposing the claim in O.P.No.757 of 2005
contending inter alia that since he had already paid Rs.65,000/- in compliance
with the direction in I.A.No.540 of 2003 together with interest towards full and
final settlement of her claim for permanent alimony, the petition for further
maintenance was not maintainable and untenable.
Both the parties adduced evidence to substantiate their respective claims. The
wife got herself examined as P.W.1 and marked copies of the order in I.A.No.540
of 2003, dated 6.10.2004 and the Memorandum of Settlement, dated 19.2.2003, as
Exs.P-1 and P-2 respectively.
Having considered the facts and circumstances of the case, particularly Ex.P-2
settlement whereunder it was agreed between the parties that there should not be
any future claim against each other as well as the admitted fact that the wife
had already received the agreed amount of Rs.30,000/- towards permanent alimony,
the Family Court held that Section 25 of the Hindu Marriage Act had no
application and accordingly dismissed O.P.No.757 of 2005 by order dated
12.1.2007.
The said order dated 12.1.2007 is under challenge in this Appeal filed by the
wife.
We have heard the learned counsel for both the parties in detail.
The learned counsel for the Appellant while submitting that the order under
Appeal is erroneous contended that a decree for maintenance in terms of
compromise between the parties is not a bar to maintain an application under
Section 25(2) of the Hindu Marriage Act, 1955 if there are changed
circumstances. In support of his submission, the learned counsel cited a
decision of a Division Bench of this Court in CHIMALAKONDA AMBAYAMMA (DIED) vs.
CHIMALAKONDA GANAPATHI1.
On the other hand, the learned counsel for the respondent at the outset raised
an objection as to the maintainability of the Appeal under Section 19 (1) of the
Family Courts Act, 1984 contending that sub-section (2) of Section 19 expressly
bars an appeal from a decree or order passed with the consent of the parties.
The learned counsel while relying upon the decisions of the High Court of Punjab
and Haryana in GURMAIL SINGH vs. RAMANJEET KAUR2 and MANJIT SINGH vs. SAVITA
KIRAN3 further contended that having accepted the permanent alimony of
Rs.30,000/- in terms of compromise in full and final settlement of her claim for
maintenance, the Appellant cannot maintain a fresh petition purportedly under
Section 25 (2) of the Hindu Marriage Act, 1955 (for short, 'the Act').
At the outset, we would like to make it clear that the order under Appeal
i.e.,the order in O.P.No.757 of 2005, dated 12.01.2007, is an order on contest
and not a consent order as claimed by the learned counsel for the respondent. A
mere perusal of the said order shows that the matter was decided on appreciation
of the evidence adduced by both the parties. May be that the Court below held
that in view of Ex.P-2 settlement between the parties, the wife cannot maintain
an
application under Section 25 of the Act, however by no stretch of imagination
the same can be treated as an order passed with the consent of the parties. As
noticed above, O.P.No.757 of 2005 was contested by the husband by filing a
counter and both the parties adduced evidence in support of their respective
claims and after due enquiry the order under Appeal was passed rejecting the
wife's claim for maintenance. Hence, the bar under sub- section (2) of Section
19 is not attracted and the preliminary objection raised by the learned counsel
for the respondent as to the very maintainability of the present appeal is
untenable.
Now, coming to the merits of the case, having regard to the submissions made by
the learned counsel for the parties, the only point that arises for our
consideration is whether the wife/Appellant is disentitled to make or estopped
from making an application under Section 25 (2) of the Act seeking further
maintenance in view of Ex.P-1 earlier order passed in I.A.No.540 of 2003 in
O.P.No.766 of 2003, dated 6.10.2004.
A copy of Ex.P-1 Order in I.A.No.540 of 2003, dated 6.10.2004 has been
placed before us. A reading of the said order shows that the application was
filed by the wife for recovery of Rs.70,000/- presented by her parents towards
pasupukumkuma at the time of marriage apart from Rs.30,000/- towards permanent
alimony agreed to be paid under Ex.P-2 - Memorandum of Understanding. The said
application was opposed by the husband by filing a counter contending that he
did not receive Rs.70,000/- at the time of the marriage. He also denied his
liability under Ex.P-2 - Memorandum of Understanding alleging that his
signatures on Ex.P-2 were obtained by coercion.
The Court below, after considering the rival claims, while recording a finding
that the husband had executed Ex.P-2 Memorandum of Understanding voluntarily,
held that the husband was liable to pay the amount as claimed by the wife. It is
not in dispute that in compliance with the said order the entire amount payable
to the wife, including Rs.30,000/- towards permanent alimony agreed under Ex.P-2
settlement was paid by the husband.
In the circumstances, the husband contended before the Court below that the wife
who had already received Rs.30,000/- in full and final settlement of her claim
for maintenance was not entitled to make any further claim for maintenance on
any ground whatsoever. Having accepted the said contention, the Court below
dismissed O.P.No.757 of 2005 holding that the wife cannot maintain an
application under Section 25 of the Act claiming further maintenance from the
husband.
Before examining the correctness of the said order, it is necessary to extract
Section 25 of the Hindu Marriage Act which provides for grant of permanent
alimony and maintenance by the Court exercising jurisdiction under the Act :
"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 the 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 party, 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 immoveable property of
the respondent.
(2) If the Court is satisfied that there is 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, vary, modify or rescind any such order in such
manner as the Court may deem just.
(3) ... ... .... ..... .... ...."
As could be seen, Section 25 (1) of the Act provides for grant of a
gross sum or monthly or periodical sum towards maintenance on an application
made by the wife or husband for a term not exceeding the life of the applicant
taking into consideration the factors specified thereunder. Sub-section (1) of
Section 25 makes it clear that such an order may be passed by the Court
exercising the jurisdiction under the Hindu Marriage Act, 1955 at the time of
passing any decree or at any time subsequent thereto. In other words, grant of
maintenance under Section 25 (1) is incidental to the decree granting
substantial relief under the Act. Sub-section (2) of Section 25 provides that if
the Court is satisfied that there is a change in the circumstances of either
party at any time after granting maintenance under sub-section (1), the Court
may at the instance of either party vary, modify or rescind such order passed
under sub-section (1).
It needs no reiteration that the object of granting maintenance under Section 25
(1) is to enable the applicant, either the wife or the husband who has no
independent income sufficient for her or his support, to maintain her/himself as
per the status and economical condition of the other party. Sub-section (2) of
Section 25 further empowers the Court to vary or revise the quantum of
maintenance granted under sub-section (1) if there is any change in the
circumstances of the parties. On a combined reading of sub-sections (1) & (2),
it is clear that the right of maintenance is a continuing right even after a
decree is granted under the Act and the quantum of maintenance is variable from
time to time if there is change in the circumstances of either party.
In the instant case permanent alimony as agreed between the parties was granted
to wife while granting a decree of divorce and the same was complied with. The
said order passed in I.A.No.540 of 2003, dated 6.10.2004, was admittedly made
under sub-section (1) of Section 25 of the Act. If that be so, it is always open
to the wife to seek enhancement of maintenance under Section 25 (2) provided the
changed circumstances are established to the satisfaction of the Court. Ex.P-2
settlement under which the wife agreed not to claim any further maintenance, in
our opinion does not preclude the Court to exercise the discretion conferred
under sub-section (2) of Section 25 of the Act if the Court is satisfied as to
change in the circumstances of the wife.
In similar circumstances, while dealing with a matter arising under Section 25
of the Hindu Adoptions and Maintenance Act, 1956, a Division Bench of this Court
in CHIMALAKONDA AMBAYAMMA (DIED) (1 supra) held that notwithstanding the
agreement by the applicant not to claim higher rate of maintenance she would be
entitled to enhanced maintenance if there was a material change in the
circumstances.
However, the learned counsel for the respondent sought to distinguish the above
decision on the ground that sub-section (2) of Section 25 of the Hindu Marriage
Act, 1955 does not contain the word 'agreement' whereas Section 25 of the Hindu
Adoptions and Maintenance Act, 1956 expressly provided for alteration of
maintenance whether fixed by a decree of Court or by agreement.
For proper appreciation, Section 25 of the Hindu Adoptions and Maintenance Act,
1956, may be extracted hereunder :
"25. Amount of maintenance may be altered on change of circumstances :- The
amount of maintenance, whether fixed by a decree of Court or by agreement,
either before or after the commencement of this Act, may be altered subsequently
if there is a material change in the circumstances justifying such alteration."
It is true that Section 25 (2) of the Hindu Marriage Act does not specifically
include the expression 'agreement'. However, keeping in view the very intendment
and object of Section 25 of the Act, we are of the opinion that the claim for
enhanced maintenance cannot be rejected merely on the ground that there was a
settlement between the parties under which the applicant agreed not to make any
further claim for maintenance. Such an interpretation would defeat the very
object of Section 25 of the Act. While considering an application under Section
25 (2) of the Act, in our opinion, the only criteria should be whether there is
any change in the circumstances justifying the enhancement of compensation.
Whether the earlier order under Section 25 (1) of the Act granting maintenance
was an agreed order or an order on contest is immaterial since the right to
maintenance under Section 25 of the Act is a continuing right variable from time
to time. Such discretion conferred on the Court under sub-section (2) of Section
25 to vary the maintenance awarded under sub-section (1) of Section 25 in the
changed circumstances cannot be restricted and the substantive right conferred
under the statute cannot be denied to a party merely on the ground of an
agreement contra between the parties. As a matter of fact, such agreement
defeating the right of maintenance provided under a statute being contrary to
public policy is not a valid contract and therefore cannot operate as a bar to
exercise the jurisdiction conferred under Section 25 (2) of the Act.
Even otherwise, the wife/appellant in the present case was paid maintenance by
virtue of an order passed by the Court in I.A.No.540 of 2003, dated 6.10.2004
but not by agreement between the parties. May be that the said order was in
terms of Ex.P2 settlement, but once an order is passed recording the terms of
settlement it becomes a decree of Court. It is also relevant to note that
sub-section (2) of Section 25 of the Act either expressly or by necessary
implication does not draw any distinction between an order on contest and an
agreed order.
Hence, viewed from any angle, the Court below committed an error in holding that
O.P.No.757 of 2005 was not maintainable in view of the Ex.P-1 order in
I.A.No.540 of 2003.
The decision of the High Court of Punjab & Haryana in GURMAIL SINGH'S case (2
supra), cited by the learned counsel for the respondent, has no application to
the facts and circumstances of the present case, and therefore is of no
assistance to uphold the contention of the respondent. So far as the other
decision rendered by a learned single Judge in MANJIT SINGH'S case (3 supra) is
concerned, we are unable to agree with the ratio that the Court may decline to
grant maintenance to a wife who bartered away her right to maintenance through
an agreement. The reasons for our disagreement have already been mentioned in
the above paras.
For the aforesaid reasons, we are of the view that the Court below ought not to
have dismissed O.P.No.757 of 2005 at the threshold without making an enquiry
into the correctness of the wife/appellant's plea as to the change of
circumstances. The order under Appeal in having declined to exercise the
jurisdiction under Section 25 (2) of the Act merely on the basis of Ex.P-1 order
is erroneous and cannot be sustained.
Accordingly, the order under appeal is hereby set aside and the matter is
remanded to the Court below for consideration afresh in the light of the
observations made above and pass appropriate orders in accordance with law.
In the result, the Appeal is allowed. No costs.
1 1969 (1) An.W.R. 41 = AIR 1969 AP 213
2 2007 (1) HLR (Punjab & Haryana) 495
3 AIR 1983 (P & H) 281
