In WRIT PETITION NO. 2527 OF 2021-BOM HC- Bombay HC upholds order accepting husband’s plea for maintenance, says permanent alimony or maintenance can be claimed by either spouse Justice Bharati Dangre [26-02-2022]

Read Order: Bhagyashri w/o. Jagdish Jaiswal v. Jagdish S/o. Sajjanlala Jaiswal & Anr 

Tulip Kanth

Aurangabad, April 4, 2022: Observing that it is open for the Court to decide the application filed by the husband under Section 25 of the Hindu Marriage Act, 1955 seeking monthly maintenance, the Aurangabad Bench of the Bombay High Court has opined that the provision of maintenance / permanent alimony being a beneficial provision for the indigent spouse, can be invoked by either of the spouse.

The Bench of Justice Bharati Dangre added that the scope of Section 25 cannot be constricted by not making it applicable to a decree of divorce being passed between the husband and wife.

In this case, the marriage between the petitioner-wife and the respondent-husband was solemnized on April 17, 1992. Later, the wife’s petition filed under Section 13, seeking dissolution of marriage on the ground of cruelty and desertion, was allowed and the marriage between the parties came to be dissolved on January 17,2015.

Then, the husband claimed maintenance of Rs 15,000 per month from the wife on the ground that he had no job, possessed no moveable or immoveable property and had no independent income. This application claiming interim maintenance was allowed by the Second Joint Civil Judge, Nanded. The Judge directed the wife to pay Rs 3,000 per month to the husband towards maintenance pendente lite from the date of application till disposal of the petition.

The petitioner-wife being aggrieved by this Order, submitted that since the marriage between the petitioner and the respondent was dissolved by a decree of divorce, the proceedings for permanent alimony and maintenance under Section 25 were not maintainable. Referring to the wording used in the said section –“husband or the wife”, the submission advanced was that on the dissolution of marriage, no such application could be entertained.

On the aforesaid contention, Justice Dangre clarified that Section 25 is not only restricted to a decree of divorce, but the decree can also be for restitution of conjugal rights under Section 9, judicial separation under Section 10, divorce under Section 13 or divorce by mutual consent under Section 13B.

In the contingency other than the one covered by a decree of divorce, the parties are still husband and wife, when a decree for restitution of conjugal rights or judicial separation is passed. The scope of Section 25, therefore, cannot be restricted by holding that on divorce / dissolution of marriage, the wife or the husband cannot bring such proceedings, the Bench noted.

Justice Dangre affirmed, “The provision of maintenance / permanent alimony being a beneficial provision for the indigent spouse, the said section can be invoked by either of the spouse, where a decree of any kind governed by Sections 9 to 13 has been passed and marriage tie is broken, disrupted or adversely affected by such decree of the court. The scope of Section 25 of the Act of 1955 cannot be constricted by not making it applicable to a decree of divorce being passed between the husband and wife.”

The Bench also referred to the judgment of the Apex Court in Chand Dhawan v. Jawaharlal Dhawan wherein it was held that in order to avoid conflict of perceptions, the legislature while codifying the Hindu Marriage Act preserved the right of permanent maintenance in favour of the husband or the wife, as the case may be, dependent on the court passing a decree of the kind as envisaged under Sections 9 to 14.

The High Court noticed that Section 25 has to be looked upon as a provision for destitute wife/husband and the provisions would have to be construed widely so as to salvage the remedial entailments.

Thus, upholding husband’s claim for maintenance, the Bench did not interfere with the impugned orders and dismissed the writ petition.