Citation: 1993 SCR (3) 954
Case Type: Civil Appeal
Case No: 2653-54 of 1991
Appellants: Smt. Chand Dhawan
Respondents: Jawaharlal Dhawan
Decided On: 11-06-1993
Statues Referred:
- Hindu Marriage Act, 1955
- Evidence Act, 1862
- Hindu Adoptions and Maintenance Act, 1956
Case Referred:
- Kadia Harilal Purshottam v. Kadia Lilavati Gokaldas
- Shantaram Gopalshet Narkar v. Hirabai
- Minarani Majumdar v. Dasarath Majumdar
- Smt. Swaran Lata v. Sukhvinder Kumar
Bench: Punchhi, M.M. Yogeshwar Dayal (J)
Facts:
The wife-appellant and the husband-respondent were married to each other since Sept. 19th, 1972, at Amritsar. Three children were born from the wedlock, two male and one female. On 28-08-1985 a petition U/S 13-B of Hindu Marriage Act, 1955 seeking divorce by mutual consent was filed in e court of the Additional District Judge, Amritsar, which failed jointly by the two spouses.
In the petition it was claimed that the parties had been living apart for over a year due to incompatibility of temperament and infructuous attempt to settle differences.
The wife was not a consenting party to the petition and she contended that the husband had tricked her in obtaining her signature on blank paper in other pretext and then doctored the papers in the said petition.
Barely after three months of dismissal of petition, the husband approached the District Court at Ghaziabad for divorce U/S 13 of the Act upon the allegation of adultery against the wife. Refuting the charge against her, the wife rather prayed the Court for grant of maintenance pending litigation, which was fixed by the Court @ 1,000 pm.
The order of District Court was stayed by the Allahabad High Court upon the objection of the Husband.
Whereafter the wife approached the Additional District Judge, Amritsar on 22-3-1990 U/S 15 of the Act for the grant of permanent alimony and also prayed U/S 24 of the Act for maintenance pending litigation and litigation expenses.
The petition was allowed and a sum of 6000 as litigation expenses and 2000 pm maintenance was awarded. The order was challenged by the husband in High Court of Punjab and Haryana at Chandigarh. The objection of the husband was sustained and the order U/S 24 of the Act was quashed. Whereby the appeal was made to the Supreme Court.
Issue:
Whether the payment of alimony is permissible without the termination of relationship between the spouses.
Obiter Dicta:
A marriage is said to subsist when no decree is passed U/S 25 of the Act, and when no decree U/S 25 is passed then the question for passing a grant of alimony fails as the marriage is not dissolved.
When interpreting statues, two or more meaning is possible then the Court must endeavour to grasp the true intent of the legislation by filing gaps, clearing doubts, mitigating hardships or any unfair consequences .
Ratio Decedendi:
Technically dismissal of suit or petition can be regarded as a decree but not in the case of Section 25 of Hindu Marriage Act, 1955. The impugned Section 25 only refers to any decree being passed from section 9-13 of the Act.
A relief of permanent alimony cannot be granted where the petition of divorce of the husband is dismissed. But were a divorce is granted a party can apply for maintenance under sub-section (1) of Section of 25 of the Act.
The expression ‘passing any decree’ U/S 25 of the Act meant only granting relief of any nature as stated in Section 9 to 13 of the Act. Passing of a decree U/S 25 of the Act meant the passing of a decree of divorce, Nullity, Restitution of Conjugal Rights or Judicial Separation and if the petition fails then no decree is passed and hence grant of alimony also fails.
But a different view was held by the Punjab and Haryana High Court in Swaran Lata v. Sukhvinder Kumar that when the rights of the parties are determined and conclusive in nature and notwithstanding whether any relief is granted or not, it shall amount to a decree and upon that consideration the wife shall be entitled to claim alimony U/S 25.
The view was justified by the fact that when the right of a wife is assured U/S 125 of CrPc and U/s 18 of the Hindu Adoption and Maintenance Acr, 1956 and when such right is undisputed the to avoid multiplicity of proceeding the Court can give effect to such right as far as possible U/S 25 of the Act.
In necessary times the technicalities should not be permitted to wither away the Court from adjudication of matters and therefore dismissal of petition could not be bar to relief sort U/S 25 of the Act. Thereafter many High Courts in its decision took the liberal interpretation of the Section 25 and held that even a dismissal of petition be regarded as decree and that it must allow the relief to be granted U/S 25 of the Act for the grant of permanent alimony.
But in the instant case the Court held that the Matrimonial Court is a Court of special jurisdiction which is not meant to pronounce upon a claim of maintenance, until a decree affecting or disrupting the marital status of the couple is issued. Herein the Matrimonial Court by rejecting the claim actually did not affect or disturb the marital status.
Judgment
The Apex Court’s bench comprising of Punchhi, M.M. Yogeshwar Dayal (J) held the following:
The wife’s approach to Additional District Judge, Amritsar for grant of maintenance U/S 25 of the Act was ill-advised.
The Court over-ruled the various Judgement of different High Court containing view that even if a petition is dismissed then it shall amount to a decree and that a petition U/S 25 was maintainable.
The Court upheld the view that when the petition of divorce is not granted until then no suit for permanent alimony U/S 25 of the Act is admissible. Therefore the contrary view was held by the Court as aberration.
The appeal was therefore dismissed without any order of costs.
While the appeal was pending the Court had directed the husband to pay a sum of ₹1000 pm by way of maintenance via bank draft. An interlocutory application was filed where it was alleged that such order was not complied with. Hence the Court also issued a show cause notice to the husband.
Conclusion:
In this land mark judgement the Apex Court overruled the decision and contention of various High Court that order of permanent alimony was permissible even when the petition failed or dismissed. The Court cleared that for the grant of permanent alimony decree of restitution of conjugal rights is a condition precedent.
That is to say the marital rights has to be disturbed for the issuance of permanent alimony. And since in the instant case no such decree was passed therefore the petition was disallowed.
Kaushal Agarwal.