- (1.) C.R.P. 1324 of 1986 converted into C.M.S.A. No.8 of 1988:- In view of the order passed in C.M.P. 12496 of 1988 this petition is converted into C.M.S.A. and disposed of accordingly. The only substantial question of law that arises in this appeal is whether the permanent alimony can be granted to wife u/S.25 of the Hindu Marriage Act, even though the main petition for annulment of marriage u/S.12 of the Act is dismissed.
(2.) According to the learned counsel for the appellant Mr. M.N. Padmanabhan that u/S.25 of the Hindu Marriage Act, a permanent alimony can be granted only when on the petition filed by either of the spouses u/Ss.9, 10, 11, 12 or 13 of the Act, a decree is passed and not in cases where the petition is dismissed. According to the learned counsel, only in cases where the marriage relationship comes to an end or altered, a permanent alimony can be granted and not in cases where the relationship of the marriage is subsisting and the remedy of the spouse is to proceed under the Hindu Adoption and Maintenance Act, 1956 for the relief of maintenance and not under the Hindu Marriage Act. In support of his contention, the learned counsel relied on various decisions reported in Shantaram Gopal Shet Narkar v. Hirabai, AIR 1962 Bom 27; Minarani Majumdar v. Dasarath Majumdar, AIR 1963 Cal 428; Shantaram Dinakar Karnik v. Malti Shantaram Karnik, AIR 1964 Bom 83; Akasam Chinna Basu v. Akasam Parbati, AIR 1967 Orissa 163 (DB); Purshotam v. Devki, AIR 1973 Raj 3; Gurucharan Kuar v. Ramchand, AIR 1979 Punj and Har 206; Darshan Singh v. Mst Daso, AIR 1980 Raj 102; Sushma v. Satishchandra, AIR 1984 Delhi 1; and Vinod Chandra Sharma v. Rajesh Pathak, AIR 1988 All 150. The ratio laid down in the above said decisions is to the effect that in the context of S.25 of the Act, the expression 'passing any decree' means any of the decrees provided for u/Ss.9, to 13 of the Act, and not the dismissal of a petition. But although technically speaking dismissal of a suit may be called a decree, such a decree is not contemplated u/S.25 of the Act. The learned counsel appearing on either side frankly conceded that there is no judgment of this Court on this question. However, the learned counsel for the appellant submitted that there is one decision of this Court u/S.37 of the Indian Divorce Act, reported in Devasahayam v. Devamony, (1923) ILR 46 Mad 133 wherein it was held as follows - "It is not competent to the Court dismissing a husband's petition for dissolution of marriage, to award maintenance to the wife, u/S.15 or 37 of the Indian Divorce Act. Though the wife might have filed an application for divorce or judicial separation on the husband's petition u/S.15 of the Act, still in the absence of a decree for dissolution or judicial separation, no order for maintenance can be made under the Act." To appreciate the aforesaid decision, it is worthwhile to quote the provisions of S.37 of the Indian Divorce Act, which runs thus - "The High Court may, if it thinks fit, on any, decree absolute declaring a marriage to be dissolved, or any decree of judicial separation obtained by the wife, and the District Judge may, if he thinks fit, on the confirmation of any decree of his declaring a marriage to be dissolved or any decree of judicial separation obtained by the wife, order that the husband shall, to the satisfaction of the Court secure to the wife such gross sum of money or such annual sum of money for any term not exceeding her own life, as having regard to her fortune (if any) to the ability of the husband, and to the conduct of the parties, it thinks reasonable; and for that purpose may cause a proper instrument to be executed by all necessary parties. In every such case the Court may make an order on the husband for payment to the wife of such monthly or weekly sums for her maintenance and support as the Court may think reasonable." See. 25 of Hindu Marriage Act reads 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 pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant, as having regard to the respondent's own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent. (2) 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-sec. (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) 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 intere course with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the Court may deem just." This S.25 of the Hindu Marriage Act is not identical to S.37 of the Divorce Act. It is clear from S.37 of the Indian Divorce Act, that only in a case where the Court on passing any decree absolute declaring a marriage to be dissolved, or any decree of judicial separation obtained by the wife and on its confirmation, make an order on the husband for payment to the wife, the monthly or weekly maintenance. But, this is not the case in so far as S.25 of the Hindu Marriage Act is concerned. Hence, that section is not at all helpful in deciding the issue involved in this appeal. The very S. 37 itself contemplates passing of a decree for dissolution or a judicial separation for granting a permanent alimony to the wife. But S.25 of the Hindu Marriage Act contemplates only passing of any decree and it does not further proceed to say a decree for either dissolution or nullity of marriage, restitution of conjugal rights, or judicial separation.
(3.) It is clear from the above two provisions that what is contemplated under S.37 of the Divorce Act, 1869 is materially different from the language used by the Legislature under S.25 of the Hindu Marriage Act, 1955, and that the decision rendered in Darshan Singh v. Mst. Daso, AIR 1980 Raj 102, cannot afford any guidance in construing the language used by the Legislature in S.25 of the Hindu Marriage Act, 1955. We are now concerned with the words "at the passing of any decree or at any time consequent thereto with regard to the grant of permanent alimony in favour of the defeated spouse". In this connection, it is worthwhile to refer to the various decisions relied on by the learned counsel for the appellant. In Akasam Chinna v. Parbati, AIR 1967 Orissa 163, a Division Bench of the said Court relying on the earlier decisions reported in Harilal Purushotham v. Lilavathi Gokaldas, AIR 1961 Guj 202, Shantaram Gopalshet v. Hirabai, AIR 1962 Bom 27; Shantaram Dinakar v. Malti Shantaram Karnik, AIR 1964 Bom 83, Minarani v. Dasarath, AIR 1963 Cal 428, held that the expression 'any decree' means passing of any of the decrees mentioned in Ss.9 to 14 of the Act and it does not include an order of dismissal and further the passing of an order of dismissal is not the same thing as passing of a decree and that therefore it cannot be regarded as the passing of a decree and permanent alimony cannot be granted to a party while dismissing the petition under the Act. In the decision reported in Smt. Sushma v. Satish Chandra, AIR 1984 Delhi 1, a Division Bench of the said Court, while considering the earlier decisions held as follows - "Hindu Marriage Act (25 of 1955) S.25 - Permanent alimony and maintenance - When can be granted - Words "passing any decree" in S.25. - Mean passing of decree of divorce, restitution of conjugal rights or judicial separation - Alimony and maintenance cannot therefore be granted as passing of decree dismissing divorce petition. Permanent alimony and maintenance under S.25 can only by granted in case divorce is granted and not if the marriage subsists. The word 'decree' is used in matrimonial cases in a special sense different from that in which it is used in C.P.C. The passing of the 'decree' in S.25 means the passing of the decree of divorce, restitution of conjugal rights, or judicial separation and not the passing of a decree dismissing the petition. If the petition fails then no decree is passed, i.e., the decree is denied to the applicant. Alimony, cannot therefore, be granted in a case where a decree for divorce or other decree is refused because in such a case the marriage subsists. The power to grant alimony contained in S.25 can only be exercised when the Court is faced with the problem of setting the mutual rights of the parties after the matrimonial ties have been determined or varied by the passing of the kind of decree mentioned in Ss.9, 10, 11 and 13 of the Act and not in other cases. Secs. 23 and 27 also show that a decree is passed only when application for divorce or other relief is granted and not when the application is dismissed." The Division Bench has elaborately dealt with the reasoning in paras 5 to 8 and ultimately came to the conclusion that the word 'decree' in a specific sense is different from that in which it is used in the C.P.C. and that accounted for the reasons which have prompted the reference to the Bench for proper consideration of the term 'decree' used in the context under S.25 of the Act. The learned Judges have also considered the word 'decree' used in Ss.26, 27 and 23 of the Act, in support of the said conclusion. As rightly observed by the learned Judges in the above mentioned case alimony on a permanent basis is maintenance given to an ex-spouse of the marriage by the other ex-spouse, and if a petition fails, then the marriage still subsists unaltered by the intervention of any decree. In that event, the normal rights of the parties are to be found in the legal system under which they are married (which have) to prevail. There is no question of alimony being granted in such cases, because the matrimonial rights of the parties are to be found in the legal system which operates, requiring one of the parties to support the other and if there is failure to do so, then the other partner can seek maintenance by recourse to the civil or criminal Court. There is no question of granting alimony in such cases. It has to be maintenance simpliciter as per S.18 of the Hindu Adoptions and Maintenance Act Furthermore, sub-sec. (3) to S.25 of the Act provides that alimony has to end on the re-marriage of the ex-spouse or proof of sexual relations with another partner or unchastity. These conditions clearly show that the matrimonial ties have to be determined before an order for alimony can be passed. In cases, where the dismissal of the petition is made there is no alteration or the variation of the rights of the matrimonial parties and the question of granting alimony does not arise. Under S.23 of the Act, certain safeguards are provided for passing a decree for divorce or other relief and not for the dismissal of those petitions. Similarly, regarding the custody of the child under S.26 of the Act and the disposal of the property u/S.27 of the Act, reliefs are granted only in cases where the decrees for the relief u/Ss.9 to 14 of the Act were granted.;