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கடல் புறா 1 [Kadal Pura]
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Law of Maintenance by Shashi Kiran
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Gnanamurthy Nagar. Lalitha Devi HIG Gayathir Aswin Apts. Sri Sayee Nagar. Arunachalam Plot Krishnamurthy Plot No. Narayanan AH Plot Old No. Easwaran Nagar. Anna Nagar Chennai Ph: Lakshmi Nagar. Thirumurugan Road. Mc Nichols Road. Apoorva Apartments. Lalitha Narasimhan New No. Leela Laxmi Doraipandian New No.
Loganathan, Old No. Loganathan No. Lokaiah Naidu No. Madhavan No. Madhavi 4, Valmiki Street, T. Nagar Chennai Ph: Mallika, New No. Gurcharan Kaur v. Dasarath, AIR Cal. Parbati AIR Orissa As said before, these two enactments keeping apart, the remaining two i. 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. Distinction with maintenance Section 25 of Hindu Marriage Act, lays down that at the time of passing the decree or thereafter the Court is competent to pass an order for maintenance or support. This is to be on the basis of an application. Jawaharlal Dhawan, SCR 3 Thus, the Legislature made a distinction between a petition and an application.
Section 25 does not envisage arrears of maintenance. This deals with the future. Moreover, the Legislature intends that the power under Section 25 to be exercised on the basis of an application. Application to a Court requires proper fee to be paid. He mandatory provision of Section 6, Court-fees Act, provides that no Court shall receive a document which is not supported by proper fee. Written statement does not require any fee. The assertion is that court-fee of about Rs. All these factors indicate that the claim is not one under Section 25 of the Act.
Being a benevolent provision the prayer could have been considered liberally to convert the same to one under section 25 of the Act. The husband had met his wife before the accepted the proposal of marriage with her. This being so, the husband had the opportunity to meet and talk to his wife before he accepted the proposal of marriage. This being so, the exercise of discretion is granting permanent alimony must depend on property and moral justice.
This is a case in which the respondent wife cannot be blamed for the marriage ending in a divorce. The husband himself did not choose to apply for a decree of nullity on the ground that the marriage was in contravention of the condition specified in Clauses ii of Section 5 of the Act, because the wife was suffering from mental disorder even prior to the marriage.
This conduct of the husband indicates that the husband himself did not believe that the wife was suffering from mental disorder prior to the marriage. He applied for and obtained divorce on the basis that the marriage was valid. In view even of this conduct of the husband indicates that the husband himself did not believe that the wife was suffering from mental disorder prior to the marriage this position, it would not be just and proper to take into consideration the alleged earlier mental illness of the wife as a circumstance for determining the amount of permanent alimony.
We much proceed on the basis that the mental disorder on which ground decree for divorce has been granted was not in existence prior to the marriage. In these circumstances, there can 1 Jayanti Pradhan vs. However, when the legislature has introduced an amendment in Section 25 of Hindu Marriage Act, , it cannot be treated as redundant and should be given effect to logically and legally.
She insisted on remaining separately even when a decree for restitution of conjugal rights was passed, and forced the husband to file a petition for dissolution of marriage, and now the marriage has been dissolved, for which she alone is responsible, she cannot persuade this Court for grant of such maintenance which should be enough for maintaining her and also meeting the expenses should be enough for maintaining her, and also meeting the expenses of the medicines.
It is self-invited trouble, for which none else but she is responsible. The act of desertion which was done initially and which has been consistently followed by her, in no case can put premium over her conduct. However, when the legislature has introduced this amendment in Section 25, it cannot be treated as redundant and should be given effect to logically and legally.
Undoubtedly, the wife in the present case deserted the husband, did not reconcile and return to the husband during the pendency of the first litigation of restitution of conjugal rights. She insisted on remaining separately even when a decree of restitution of conjugal rights was passed, and forced the husband to file a petition for dissolution of marriage, and now the marriage has been dissolved, for which she alone 1 2 Mukesh Mathur vs.
Umesh Chand vs. Alimony—Entitlement only after divorce 23 is responsible, she cannot persuade this Court for grant of such maintenance which should be enough for maintaining her, and also meeting the expenses of the medicines.
That being so, the order varying, modifying or rescinding the order of alimony cannot go beyond the date of the application for varying, modifying or rescinding that order because it is only when such a motion is made that the Court gets jurisdiction to very, modify or rescind that order. Permanent alimony can be granted only when the wife has no sufficient independent source of income. In one case both the lower Courts, considering the evidence on record and particularly, the conduct of the wife, refused to grant permanent alimony to her.
It was amply proved that the husband tried his level best to bring back the wife for leading a peaceful marital life. Similarly, efforts for reconciliation were made even after a decree of restitution of conjugal rights was passed by the lower Courts, but it was found that the wife was not ready to join the society of her husband though the husband was ready to join the society of his wife. The learned Counsel for the wife stated that the wife was working as a Laboratory Assistant in the school at Paratwada and getting more than Rs.
On these facts it was held that the wife being an earning member, she was not entitled for the permanent alimony under Section 25 of the Hindu Marriage Act, Mohinder Singh vs.
Rashmi Pradip Kumar Jian vs. Pradeep Kumar, 2 DMC 25 Bom 24 Law of Maintenance Entitlement only after divorce Permanent alimony and maintenance under Section 25 of the Hindu Marriage Act can only be granted if divorce is granted but not during the subsistence of the marriage. In other words, in such cases decree is denied to the applicant. Obviously, alimony cannot, therefore, be granted in a case where a decree for divorce is refusal because in such a case the marriage will subsist.
In the absence of an application, the Court has no jurisdiction to pass an order under Section Vinod Chandra Sharma vs. Rajesh Pathak ibid Jitabandhan vs. Balakrishnan vs.
Alimony—Insufficient income 25 law for clothing the court with the jurisdiction to act under Section This defect of jurisdiction made the order a nullity and so nonexecutable. Although the executing Court cannot go behind the decree or order which it is required to execute, it can examine the question whether the decree or order is a nullity or not for lack of jurisdiction. An application can be in writing as also by word of mouth. The fact that the trial Court passed an order for alimony would imply that an oral application had been made to it.
Therefore, it will have to be found that widow is entitled to rely on the principles of Section 25 of the Hindu Marriage Act and to invoke the powers of the Court for making provisions for just and fair maintenance. The principles underlying Section of the Civil Procedure Code are no more in doubt.
Where the need and the circumstances to do justice require, the power to act ex debito justitiae exists and can be invoked. When this occurs, the court clearly has to decide what the priorities are to be and where the inevitable loss should fall.
The wife is the financially dependent spouse. She is potentially likely to suffer greater financial loss from the dissolution or annulment of the marriage 1 2 3 4 Jitabandhan vs. Rajeshbai vs. Shantabai ibid 26 Law of Maintenance than the husband. But her need cannot be denied. Having regard to all the circumstances of the case the court has to award a reasonable amount. Therefore, there should be left some security in the form of immoveable properties or otherwise which should be sufficient and adequate enough for the grant of permanent alimony under section 37 of the Act and that aforementioned house in Green Park can be adequate security for the payment of permanent alimony to the petitioner in case it is granted by the Court.
Every Court has inherent power to grant relief during the pendency of the proceedings if the interest of justice so requires. Wife was an Advocate. However, she had started her professional career only after dissention arose between the parties. It is stated that husband was having no employment at present. In our Society a husband can get easily married but our Society has not changed far to accept a divorced wife to be married again in normal circumstances.
Legal Profession for the beginner is very hard. Husband has liability to maintain a wife. Husband has approached Court for divorce. Therefore, he is to pay some alimony to the wife. With gradual experience wife will have her own income from the profession if she proves successful. She may also get married if a suitable match is available. Keeping all these circumstances a monthly payment of Rs. Monthly payment by itself is continuing process and may cause difficulty to both the parties.
Sheela vs. Tungal ibid Hilda Basant Lal vs. It was also held that in default of payment of any two instalments, the balance amount can be realised by execution and if the respondent gets married during the period of one year, further instalment payable shall not be paid.
It appeared from the evidence on record that she has been living in the house of her brother. The son was aged twelve and was school going. The father of child and the husband used to serve in the Government of India Press and he had already retired on attaining the age of superannuation.
It was also found that he made default in payment of alimony pendente lite. So in these facts and circumstances of the case it was held that it would be reasonable that a gross sum should be awarded as permanent alimony. Thus it was held to be reasonable to grant a gross sum of Rs. This case was also followed by Kerala High Court and the amount of maintenance at the rate of Rs.
It was also left open to the parties to file proper application before the lower Court for variation of the order if circumstances change necessitating variation. Amarendranath Sanyal vs.
Saroj Rani vs. During the pendency of the present appeal, the appellate court had directed that the appellant petitioner will continue to receive alimony pendente lite at the same rate. Ultimately it was held that she is entitled to receive permanent alimony from the respondent husband at the same rate and in case, there is any change of circumstance, either party was granted liberty to apply to the trial Court for variation, modification or rescinding the order under Section 25 as the said Court may deem just.
It is well settled that the cases of divorce and annulment of marriage have the effect of snapping the marriage tie. If these words are literally construed, it may lead necessarily to the confinement of Section 25 to the cases of restitution of conjugal rights and judicial separation, which could not have been the intention of the Legislature.
Hemaraj Shamrao Umredkar vs. Sister Kumar v. Alimony—Nullity marriage 29 always conferred power upon the court to alter the amount of maintenance where circumstances have altered.
The point, however, is as to the procedure to be adopted in making such alteration. Briefly speaking the law before the introduction of the said Act was that, where a decree was passed for maintenance and it contained provisions for making an application to alter the quantum of the maintenance owing to change of circumstances, then and then only an application could be made.
Otherwise, the court had no jurisdiction to alter the amount of a decree by means of an application, and it was always necessary to institute a suit for that purpose. The resultant relationship is both as also contractual. The grounds mentioned in Section 5 2 of the Act as invalidating a Hindu Marriage are incapacity to enter into a contractual relationship because of the minority or unsoundness of mind or an inherent incapacity to achieve the very purpose of the marriage, namely procreation, due to lack of capacity to consummate the marriage.
These are considerations which may vitiate a contract. Invalidation due to any or all these grounds in virtually an annulment of the contractual relationship. It is only just and proper that a person who induced another to enter into a contractual relationship inspite of the existence and awareness of essentially invalidating circumstances compensates that other as an incidence of the decree of annulment which he obtains.
It may be that because these jural and contractual relationships are so inter wined in Hindu Marriages the former also snaps when the latter is annulled. The obligation flowing out of the jural relationship which the court disrupts by its decree seems to be sufficient justification for an order to pay maintenance subject to reasonable restrictive conditions even after the decree of annulment. In the instant case, it is not in dispute that a decree for annulment of marriage was passed by this Court MFA No.
That being so, it is obvious that the erstwhile wife in the instant case could maintain an application for maintenance. The different types of decrees that are contemplated under the Hindu Marriage Act: decree for judicial separation, decree for 1 2 Menokabala Dasi vs.
Gopalakrishnan Nair vs. Hence is obvious that the parties to a decree for annulment of marriage also are covered under Section 25 1 of the Hindu Marriage Act. This is clarified by the provisions contained in sub-section 3 of Section 25 of the Act, where the circumstance in which the alimony is likely to be withdrawn are specified.
In my opinion, there is no scope for enlarging the circumstances when alimony may not be granted and I have no doubt that the benefit of the provision is not to be denied to the parties who have suffered the misfortune to have their marriage dissolved by the decree or the court, merely on account of the passing of the decree, if they are otherwise entitled to the maintenance and it was certainly not the intention of law that the parties to the dissolved marriage must suffer further misery or starvation without grant of alimony.
Passing of the decree of annulment of marriage, therefore, does not debar the court from granting alimony to the parties, who be otherwise entitled to it. Smritikana Bag vs. Kuldip Chand Sharma vs.
Section 25 of the Hindu Marriage Act confers upon a woman, whose marriage is void or is declared to be void, a right to maintenance against her husband. The right of maintenance can be enforced by her not only in proceedings under Section 25 of Hindu Marriage Act but also in any other proceedings where the validity of her marriage is determined 3. This right can be enforced by her not only during the lifetime of her husband but also after his death against the property of her husband after his death 4.
Of course, this right of maintenance is available only during her life time ceases if remarries. Thus, to get the alimony for maintenance under Section 25 of the Hindu Marriage Act, , it is necessary that the parties were husband and wife.
When there is a declaration given under Section 11 of the Hindu Marriage Act, , by the court that the marriage between the parties was null and void it has effect of saying that there was no marriage at all. That being so, there was no relationship between the husband and wife at any time. Under the circumstances Section 25 of the Hindu Marriage Act, , has no application and the court has no jurisdiction to grant of maintenance exercising the powers under Section 25 of the Hindu Marriage Act, Prayer for 1 2 3 Shantaram Tukaram Patil vs.
Bhaiyalal vs. According to this case section 25 of Hindu Marriage Act, confers a statutory right on the wife and the husband and confers jurisdiction on the Court to pass an order of maintenance and alimony in proceedings under Section 9 to 14 of the Hindu Marriage Act.
At any time before or after the decree is passed in such a proceeding, therefore, the wife or husband could make such a claim and the conditions of Section 25 1 will have to be satisfied.
There must be a matrimonial petition filed under the Hindu Marriage Act, then, on such a petition, a decree must be passed by the Court concerning the material status of the wife or husband. It is only when such a decree is passed that the right accrues to the wife or the husband and confers jurisdiction on the Court to grant alimony.
Till then, such a right does not take place. Not only that the Court retains the jurisdiction even subsequent to passing of such a decree to grant permanent alimony when moved by an application in that behalf by a party entitled to, 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 gamut of a broken marriage. Thus, the Legislature while codifying the Hindu Marriage Act, reserved the right of permanent maintenance in favour of the husband or the wife as the case may be depending on the Court passing of the kind as envisaged under Section 14 of the Act.
Thus, Section 25 should not be construed in such a manner as to hold that notwithstanding the nullity of the marriage, the wife retains her status for purposes of applying for alimony and maintenance.
In our view, the proper construction of Section 25 would be that where a marriage admittedly is a nullity, this section will have no application.
But, where the question of nullity is in issue and in contentious, the Court has to proceed on the assumption until the contrary is proved, that the applicant is the wife. But she did not raise any plea whatsoever as to why she is willing to live away from her husband.
In those proceedings, she led no evidence on that 1 2 Lydia Renuka vs. Abbayolla M. Subba Reddy vs. Alimony—Pregnant wife 33 aspect of the matter and if on perusal of that evidence it could be concluded that there was really some apprehension to her from the side of the husband of her-in-law, probably, she would have had a good case but when no evidence having been brought on record, the fact remains that as a wife, she wants to live away whereas the dicta of law is that she must go with her husband.
Smyamali Sarkar vs. Where, however, the evidence is, like in the present case, that she had conceived during the period of desertion and delivered a child, her application for permanent alimony cannot be thrown out on that ground alone.
It would, however, be open to a husband whose marriage has been dissolved on the ground that wife has deserted him to prove while contesting that application that the wife lives in adultery. Principle of natural justice has been reflected in the section itself which requires the copy of the application to be served on the husband.
Trial Court is required to consider the truth of the statements made in the application and thereafter, on its findings shall make such order on the husband as it may deem just for payment of alimony to the wife, pending disposal of the suit.
Thus, the Court considering such application is to determine the net income for three years and on the facts and circumstances of each case shall determine the quantum of alimony which shall not exceed one-fifth of the average thereof. The facts of this case were that the wife was practising as qualified Post-graduate doctor in 1 2 3 Ram Kishan vs.
Jayanti Menjet vs. Alimony—Quantum 35 Gynaecology and as such she was capable of earning substantial income through her profession. Whereas the respondent who was also a doctor by profession settled down in London, had to maintain his first daughter born through the appellant, his second wife and a son born through his second wife. In these circumstances it was held that, an amount of Rs.
While determining the above amount of permanent alimony, the amount of Rs. It was also held that pending payment of the permanent alimony of Rs. The respondent husband was also directed to pay an amount of Rs. The legislature in its discretion has not fixed any guideline in this regard as in the case of Indian Divorce Act or the Paris Marriage and Divorce Act and here court is always to be guided by the wide discretion vested by the statute on the Court itself.
Therefore the alimony pendente lite was increased to a sum of Rs.
Srinivasa Rao ibid S. Vijayalakshmi vs. Rina Sen vs. Out of this amount of Rs. Therefore the order under Section 25 shall be deemed to have been made by the trial Court. This view is fortified both by the heading of the section and the language of the principal clause in the section. The heading suggests that it applies to all cases coming under the Hindu Marriage Act and not 1 2 Balwinder Singh vs. Sandhya Bhattacharjee vs. Alimony—Right after passing of decree 37 necessarily and exclusively to cases where the marital tie has been dissolved by an order of court.
This expression is not intended to cut down or curtail the scope of Section Nor can it be construed as applying only to a case of a dissolution of marriage or an annulment of marriage. It is the duty of the court to put a construction upon the section, which does not attribute absurdity to the legislature and which would advance the remedy and suppress the mischief.
Whether there has been resumption of the cohabitation or not does not depend upon the duration of the stay. It rather depends on the animus of the parties and their mental attitude in coming to gather again.
When cohabitation is resumed, there is a waiver on the part of the wife of the cause of action on which the suit and the decree were founded. Whatever might be the ground on which the decree has been obtained, the same result follows, if subsequent to the decree there is a resumption of cohabitation.The Cholas lost control of the island of Lanka and were driven out by the revival of Sinhala power.
Even lor our organiza,t ion, we have not yet given the membership forms. Under sub-s. Because I could not include his photograph, does it mean that I have given up his politics? Koil First Lane. Butrvhen the cheri people revolt and rise, at the very beginning thepolice open fire. TNHB Colony. This is the historical trait of the In,,lien nation.
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