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Vinod Chandra Sharma v. Smt. Rajesh Pathak .
Factual and Procedural Background
This first appeal challenges an order dated 19-1-1984, passed by Mr. R.S. Tripathi, Vth Additional District Judge, in Misc. Case No. 39 of 1983. The impugned order granted permanent alimony under Section 25 of the Hindu Marriage Act, 1955, to the respondent wife. The underlying proceedings involved a petition for divorce initiated by the husband, Vinod Chandra Sharma, which was dismissed by the trial court on the same date the alimony order was passed.
Legal Issues Presented
- Whether permanent alimony under Section 25 of the Hindu Marriage Act can be granted during the subsistence of the marriage, i.e., when a decree of divorce has not been granted but the petition for divorce has been dismissed.
- The proper interpretation of the term "decree" in Section 25 of the Hindu Marriage Act in the context of matrimonial proceedings.
- The scope and timing of the court's power to grant permanent alimony under Section 25, particularly whether it applies only after the dissolution or judicial separation of marriage as per Sections 10, 11, and 13 of the Act.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Smt. Sushama v. Sh. Satish Chander, AIR 1984 Delhi 1 | Clarification that permanent alimony under Section 25 of the Hindu Marriage Act can only be granted after a decree of divorce, judicial separation, or restriction of conjugal rights is passed, not when a divorce petition is dismissed. | The court relied on this precedent to support the interpretation that alimony cannot be granted during the subsistence of marriage and after dismissal of the divorce petition. |
Court's Reasoning and Analysis
The court analyzed the scope of Section 25 of the Hindu Marriage Act, emphasizing that the power to grant permanent alimony arises only after the marital ties have been legally severed or altered through a decree of divorce, judicial separation, or restriction of conjugal rights as specified in Sections 10, 11, and 13 of the Act. The court distinguished the use of the term "decree" in matrimonial matters from its general civil law meaning, noting that a decree is considered passed only when the relief sought (such as divorce) is granted, not when the petition is dismissed. Consequently, since the husband's petition for divorce was dismissed, no decree of divorce existed, and the marriage subsisted. Therefore, granting permanent alimony under Section 25 at this stage was legally impermissible. The court also referenced a Division Bench decision from the Delhi High Court in Smt. Sushama v. Sh. Satish Chander which affirmed this interpretation. The respondent's counsel conceded this legal position.
Holding and Implications
The court allowed the appeal and set aside the impugned order granting permanent alimony at the rate of Rs. 350/- per month to the respondent wife. The parties were directed to bear their own costs given the special circumstances of the case.
The direct effect of this decision is that permanent alimony cannot be granted under Section 25 of the Hindu Marriage Act during the subsistence of the marriage, i.e., when a divorce petition is dismissed and no decree of divorce or judicial separation has been passed. The court did not establish any new precedent beyond affirming existing legal principles.
1. This first appeal from order, passed by Mr. R.S Tripathi, the then Vth Additional District Judge, on 19-1-84, in Misc. Case No. 39 of 1983, is directed against an order granting permanent alimony under S. 25 of the Hindu Marriage Act, 1955, to the respondent.
2. Briefly stated, the proceedings for a decree of divorce were going on in the court below between the patties at the instance of the husband Vinod Chandra Sharma. The learned Additional District Judge dismissed the petition for divorce on 19-1-84 and by the present impugned order of the same date he passed the order granting Rs. 350/- per month as permanent alimony in favour of the wife and against the husband. It is contended that this order is patently illegal and cannot be allowed to stand. I have heard the learned counsel on both the sides. Permanent alimony and maintenance under S. 25 of the Hindu Marriage Act can only be granted if divorce is granted but not during the subsistence of the marriage. The word ‘decree’ is used in matrimonial cases in a special sense different from that in which it is used in the Civil P.C The use of the word ‘decree’ in S. 25 of the Hindu Marriage Act means the passing of the decree of divorce, restriction of conjugal rights or judicial separation and not the passing of a decree through which the petition itself is dismissed because if the petition fails then no decree is passed. 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 refused because in such a case the marriage will subsist.
3. The power to grant alimony contained in S. 25 of the Hindu Marriage Act has to be exercised when the court is called upon to settle the mutual rights of the parties after the marital ties have snapped by determination or variation by the passing of the decree of a type mentioned in Ss. 10, 11 and 13 of the Act. Read with Ss. 23, 26 and 27 of the Act, a decree can be assumed to have been passed when an application for divorce or similar other relief is granted but surely not when the application is dismissed.
4. A Division Bench of the High Court at Delhi was also of the same view in the matter of Smt. Sushama v. Sh. Satish Chander, AIR 1984 Delhi 1. The learned counsel for the respondent concedes the legal position.
5. As such the appeal is allowed and the impugned order dt. 19-1-84, passed by Mr. R.S Tripathi, Vth Additional District Judge, Aligarh, granting alimony at the rate of Rs. 350/- per month to the respondent against the appellant is set aside.
6. The parties shall bear their own costs in the special circumstances of the case.
7. Appeal allowed.
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