Citation: Patel Dharamshi Premji Vs Bai Sakar Kanji (1967) GLR 888
Date of Judgement :13/04/1967
Equivalent citations: AIR 1968 Guj 150, (1967) GLR 888
Case No.: Second Appeal No. 112 of 1964
Case type: Civil Appeal
Appellant: Patel Dharamshi Premji
Respondent: Bai Sakar Kanji
Bench: Hon’ble Justice P Bhagwati, Hon’ble Justice A Nakshi
Court: Gujarat High Court
Statute Referred:
- Hindu Marriage Act, 1955; Section 9, 25, 28
- Judicature (Consolidation) Act, 1925; Section 190 (1)
- Matrimonial Causes Act, 1950; Section 19
- Special Marriage Act, 1954; Section 37
Cases Referred:
- Gunvantray Vs Bai Prabha, AIR 1963 Guj 242
- Umiyaben Vs Ambalal, (1965) 6 Guj LR 714: (AIR 1966 Guj 139)
- Clear Vs Clear, (1958) 2 All ER 353,
- J.G. Khambatta Vs M.C. Khambatta, AIR 1941 Bombay,
- Harilal Vs Lilavati, AIR 1961 Guj 202
- Sydenham Vs Sydenham and Illingworth, (1949) 2 All ER 196
Facts:
- The Plaintiff and the Respondent were married in accordance with the Hindu religion, and in this marriage a son was born.
- The Plaintiff and the Respondent, but quickly fell out, and soon the wife left the husband and went away to her father’s house.
- The husband then filed an application against the wife under Section 9 of the restitution of conjugal rights.
- The wife opposed the application on the grounds that they had been ill-treated with cruelty when she lived with her husband and would therefore be entitled to take the applicant’s time.
- The wife, terribly failed to establish the cruelty by cogent evidence and a decree for restitution of conjugal rights was passed against her by the Court on 28th February 1958.
- The divorce petition was finally accepted in a petition on February 23, 1961 and on the dissolution of the marriage between the parties.
- The wife, thereafter, preferred Civil Miscellaneous Application No. 26 of 1961 under Section 25 for claiming permanent alimony at the rate of Rs. 75 per month from the husband.
- The application was opposed by the husband and one of the grounds of opposition was that the application was not tenable as the wife was the erring spouse and it was by reason of the refusal of the wife to carry out the decree for restitution of conjugal rights that a decree for divorce was obtained against her.
- The trial court, in the light of the directly expressed wording of this Section 25 of the Code, dismissed the ground and after considering all the facts and circumstances of the case, it was issued an amount of Rs 20 per month, and the wife will be kept for a long period of time.
- Two appeals were filed against this decision-for the plaintiff and the defendant.
- The lower court of appeal rejected the applicant’s appeal, and the defendant’s appeal, in particular, in connection with the increase in the amount of fixed alimony in the amount of 28 rupees, for a month.
- The husband then chooses to present Second Appeal to the Court.
Issue involved:
- Whether a husband or wife can apply to the Court for permanent alimony under Section 25 of Hindu Marriage Act, 1955 after the passing of a decree for divorce?
Contention of Appellant:
The Counsel of the Appellant contended that:
- The Appellant’s lawyer argued that the defendant’s application for permanent alimony could not be supported under Section 25 because it was filed after the divorce judgment was approved and therefore the defendant was not the wife on the date of the request.
- Mr.Vakharia said that a husband or wife’s request is a prerequisite for the court to exercise its jurisdiction to issue a permanent alimony order. Therefore, the party making the request must be the husband or wife on the date of the first investment request.
- If an application is filed after the approval of the divorce decree, the party who filed the application, would no longer be the husband or wife and therefore, after the divorce, the application for pension permanent alimony according to Section 25, cannot be maintained.
- The lawyer representing the appellant also urged the court to base the argument on the facts of the order passed by the lower court of appeal to fix permanent alimony in rupees. 28 times a month.
- The dispute has two aspects: one is that the lower court of appeals should not award any permanent alimony to the defendant because the defendant is wrong and because the defendant refused to comply with the law to restore the rights of the husband. and wife, the appellant was forced to obtain the right against her Divorce decree.
- The second aspect is that even the lower appellate court wrongly increased the amount of the permanent alimony from Rs. 20 per month to rupees.
- Taking into account the needs and requirements of the child born, Rs. 28 per month.
Contention of Respondent:
The counsel of the Respondent contended that:
- The learned counsel urged that the second right of Appeal granted by Section 28 is limited to the grounds provided for in Section 100 of the Code of Civil Procedure so it can only be exercised on legal and not factual issues.
- Taking it into account the factors stipulated in Section 25, the amount of permanent alimony is essentially a matter of fact.
- The second appeal cannot challenge the determination of permanent alimony by the lower Appellant unless the claim has not been considered by the lower appellate court. factors specified in Section 25 or consideration of any irrelevant or irrelevant factors.
- Cross objection did not allege such defects in the lower Appellate court’s decision and therefore must be rejected for incompetence.
Judgement:
The Appeal was Allowed in part.
- The Appeal was allowed in part and it was ordered to modify the order of the lower Appellate Court by directing that the permanent alimony should be awarded to the wife at the rate of Rs. 20 per month instead of Rs. 28 per month.
- The Appellant was directed to pay the costs of the Appeal to the wife.
Ratio decidendi:
- In accordance to Section 25, permanent alimony can even be awarded to the erring spouse, but the fact that the defendant does not comply is the same as the law restoring the rights of the husband and wife.
- In fact, if she is a guilty spouse and is guilty in the sense that she did not comply with the law restoring the rights of husband and wife.
- When determining the amount of permanent alimony, it is well established fact that, the lower Appellate court has the right to consider the amount of alimony required to meet the needs and requirements of the child.
Obiter Dicta:
The learned Justice said:
“As it stands now, the record of the court shows that the wife has committed adultery. It shows that she has by that action at any rate forfeited her common Law right to be maintained, because her adultery was not condoned or connived at, and that she could not get any maintenance in a court of summary jurisdiction. It is only by virtue of divorce legislation that she is enabled to get maintenance at all, and in such cases the court will consider whether she ought to have maintenance.”
Conclusion:
Despite the fact that Section 25 of the Hindu Marriage Act, 1955 does not mention the term “Permanent alimony” anywhere in the statute, the Section’s marginal note, plainly states that it is designed to deal with permanent alimony. There was no law of divorce among Hindus in this nation, thus the concept of “permanent alimony” is not an indigenous concept established on our soil.
The concept of “permanent alimony” was borrowed from England which provided for Hindu divorce among other things. Therefore, the order of the lower Appellate Court increasing the amount of permanent alimony from Rs. 20 to Rs. 28 per month was, vitiated by an error of law. The order of the lower Appellate Court was consequently set aside and the order of the trial Court was restored
Drafted by: Bharti Verma, Chanderprabhu Jain College of Higher Studies and School of Law
Edited by: Aashima Kakkar, Associate Editor, Law Insider
Published On: October 18, 2021 at 15:52 IST