Decided on January 30,1970

Soumyanarayanan Appellant


S. Maharajan, J. - (1.) THIS is an appeal against the order of the learned First Assistant Judge of the City Civil Court, Madras, directing the appellant, who had previously divorced his wife, the respondent, to pay permanent alimony at the rate of Rs. 65 per mensem.
(2.) SOUMYANARAYANAN , the appellant, married Jayalakshmi Ammal, the respondent on 10th February, 1957. In O.P. No. 33 of 1964 on the file of the Court below the respondent instituted a petition under Section 12 of the Hindu Marriage Act for annulment of the marriage on the ground that the appellant was impotent at the time of the marriage and continued to be so until the institution of the proceedings. In spite of contest by the husband the Court below passed an order on 1st September, 1964, annulling the marriage on the ground alleged by the wife. Subsequent to the date of annulment the divorced wife filed a petition for alimony at the rate of Rs. 100 per mensem with effect from 1st September, 1964. This petition was allowed by the Court below to the extent indicated above. The quantum awarded is not contested in this appeal. The only question argued relates to the maintainability of the respondent's petition for alimony. It is said that under Section 25 of the Hindu Marriage Act, an application for alimony made by a woman, who has ceased to be a wife, is not maintainable. That section runs as follows: 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, while the appellant remains unmarried, pay to the appellant, for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as having regard to the respondent's own income and other property, if any, the income and other property of the applicant and the conduct of the parties, it may seem to the Court to be just and any such payment may be secured, if necessary, by a charge on the Immovable property of the respondent. 2. 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, vary, modify or rescind any such order in such manner as the Court may deem just. 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 sexual intercourse with any woman outside wedlock, it shall rescind the order. 3. It may be noted that the Court exercising jurisdiction under the Hindu Marriage Act, can pass three kinds of decree : (i) decrees of nullity under Section 111 declaring the marriages null and void on the ground of contravention of any one of the conditions specified in Clauses 1, 4 and 5 of Section 5; (ii) decrees of nullity under Section 12 annulling voidable marriages on any of the grounds (including impotency) mentioned in Section 12 and (iii) decrees of divorce dissolving validly conducted marriages on the grounds enumerated in Section 13. Besides these three categories of decrees, Courts having jurisdiction under the Hindu Marriage Act are empowered to grant decrees of such interim nature as for restitution of conjugal rights under Section 9 and for judicial separation under Section 19. The expression "at the time of passing any decree or at any time subsequent thereto" occurring in Section 25 of the Act makes it clear that the Court would have jurisdiction to award maintenance either at the time of passing any decree of the categories mentioned above or at any time subsequent thereto. There is therefore, no warrant for the argument of the appellant that the jurisdiction to award maintenance would be available only when decrees for dissolution of valid marriage are granted and not when decrees annulling marriages are granted.
(3.) THE next contention of the appellant is that under the terms of Section 25 the applicant must have the status of wife or husband as a necessary pre -condition to the prayer for maintenance, and that in this case, although at the time of annulment of the marriage, the wife could have prayed for alimony, and the Court could have granted it, the moment that wife ceased to be a wife on account of annulment of the marriage she became incompetent to file an application for maintenance and the Court lost jurisdiction to award it. I am unable to agree. Reference to the wife or the husband in Section 25, is only descriptive in character, and if read in the context of the entire section, would mean the divorced wife or the divorced husband. The severance of the marital tie effected by the decree annulling the marriage does not, in the eye of the law, put an end to the liability to pay maintenance, which, on grounds of high State Policy, is recognised and enforced by the statute. In fact in Clause 2 of Section 25, the draftsman has avoided the use of the words, "wife and husband" and used the words "either party". In Clause 3 of Section 25 reference is made to the party in whose favour an order has been made". If the same language had been used by the draftsman in Clause 1 of Section 25, there would have been no room whatsoever for the appellant to raise the hypertechnical contention that the application for maintenance by an ex -wife or ex -husband is not strictly maintainable on the terms of Section 25(1). Unfortunately this technical argument was accepted by a single Judge of the Gujarat High Court in Gunvantray v. Bal Prabh : AIR 1963 Guj 242 . Learned Counsel for the appellant placed great reliance upon this ruling. But a Division Bench of the same High Court has overruled this ruling in Dharmashi Premji v. Baisakar Kanji : AIR 1968 Guj 150 . I have no doubt that the proper construction of Section 25 is the one put upon it by the Division Bench of the Gujarat High Court.;

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