The Allahabad High Court observing the fact that since there was no application filed by the Respondent under Section 25 of the Hindu Marriage Act, 1955, held that the grant of maintenance under Section 25 of the Hindu Marriage Act in favor of the Respondent is manifestly erroneous and illegal.
Brief Facts:
The instant second appeal has been filed against the part of the judgment and decree dated 17.10.2015, by which the permanent alimony has been granted to defendant/respondent no.1 against the plaintiff-appellant.
The second appeal was admitted on the following substantial question of laws-
- Whether the order of maintenance under Section 25 of the Hindu Marriage Act can be passed without such relief being asked by the person in whose favor such order is being passed?
- Whether the first appellate court had not afforded the opportunity of hearing to parties on the point of maintenance under Section 25 of the Hindu Marriage Act?
Contentions of the Appellant:
The learned Counsel for the Appellant contended that once the suit for declaring the marriage as null and void/ineffective, has been decreed and the decree has been affirmed in the 1st appeal, the grant of maintenance by the 1st appellate court is manifestly erroneous. He further submitted that the appellate court has not formulated a point of determination while deciding the 1st appeal as provided under Order 41 Rule 31 of the C.P.C., as such, the order for grant of maintenance by the 1st appellate court is manifestly erroneous.
He also submitted that the order of maintenance under Section 25 of the Hindu Marriage Act cannot be passed unless there is an application and relief claimed by the party concerned in the proceeding.
Contentions of the Respondent:
The learned counsel for the respondent submitted that the appellant has not complied with the conditions of the interim order passed by this Court for paying half of the maintenance amount to the respondent, as such, the appellant is not entitled to be heard and the second appeal is liable to be dismissed. He further submitted that the monthly maintenance/lumpsum maintenance has been granted by the lower appellate court in accordance with the law as the appellant has failed to maintain the respondent on the basis of valid marriage taking place between them.
Observations of the Court:
This Court admitted the appeal on the substantial question of law. In order to answer it, this Court perused the judgment of the lower appellate court which reveals that it has ordered maintenance/ permanent alimony on the ground that there was a divorce decree of the trial court although the trial court passed the decree declaring the marriage as void/ineffective, as such, there was no occasion to order for maintenance / permanent alimony in favor of respondent.
So far as the exercise of the jurisdiction under Section 25 of the Hindu Marriage Act while dismissing the civil appeal filed by the wife is concerned, the Court held that there was no occasion to grant maintenance under Section 25 of the Hindu Marriage Act in favor of the respondent coupled with the fact that there was no application under Section 25 of the Hindu Marriage Act, 1955 in civil appeal. Therefore, the substantial questions of law nos. 1 & 2 are answered in favor of the appellant and against the respondent.
The decision of the Court:
The Allahabad High Court, allowing the appeal, set aside the maintenance under Section 25 of the Hindu Marriage Act which has been granted by the first appellate court in Civil Appeal.
Case Title: Sarnam Singh Lekhpal Chakbandi vs Preetam Kumari and Another
Coram: Hon’ble Justice Chandra Kumar Rai
Case no.: Second Appeal No.1087 of 2015
Advocate for the Appellant: Mr. Manoj Kumar Sharmam, Smt. Krishna Singh
Advocate for the Respondent: Mr. Manoj Kumar Gupta, Mr. Mahesh Narain Singh
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