Gujarat High Court
Dhirajbhai Dahyabhai Makwana vs Hansaben Dhirajbhai Makwana on 7 May, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/2654/2024 ORDER DATED: 07/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2654 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/FIRST APPEAL NO. 2654 of 2024
With
R/FIRST APPEAL NO. 2774 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/FIRST APPEAL NO. 2774 of 2024
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DHIRAJBHAI DAHYABHAI MAKWANA
Versus
HANSABEN DHIRAJBHAI MAKWANA
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Appearance:
MR M. R. AJMERI(12139) for the Appellant(s) No. 1
MR. KALRAV R PATEL(7041) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR.JUSTICE L. S. PIRZADA
Date : 07/05/2025
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE L. S. PIRZADA) Order in First Appeal No.2654 of 2024
1.s The present appeal has been preferred by the appellant, who was the original plaintiff in Family Suit No.561 of 2013 filed before the learned Family Court, Ahmedabad. The suit was filed by the present appellant - husband under Section 13(1) of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act") for decree of divorce on the ground of cruelty and desertion. Page 1 of 8 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri May 09 2025 Downloaded on : Sat May 10 16:00:02 IST 2025
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2. The learned Family Court, Ahmedabad, by its judgment and decree dated 14.05.2024, allowed the family suit filed by the present appellant - original plaintiff and passed the decree of dissolution of the marriage solemnized between the original petitioner and the original respondent dated 25.04.1998. However, while allowing the suit, the learned Family Court directed the appellant herein - husband to pay sum of Rs.15,00,000/- (Rupees Fifteen Lakh Only) to the respondent - wife towards one time full and final permanent alimony for the respondent - wife and children under the provisions of Section 25 of the Act.
3. The present appeal is filed only to the extent that the learned Family Court directed the original petitioner - husband to pay an amount of Rs.15,00,000/-.
4. Heard learned advocate Mr.M.R. Ajmeri for the appellant and learned advocate Mr.Kalrav Patel for the respondent.
5. The learned advocates for the respective parties have also submitted before the Court that so far as the decree of divorce passed by the learned Family Court is concerned, the same is not under challenge by any of the parties.
6. Mr.Ajmeri, learned advocate for the appellant submitted that Page 2 of 8 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri May 09 2025 Downloaded on : Sat May 10 16:00:02 IST 2025 NEUTRAL CITATION C/FA/2654/2024 ORDER DATED: 07/05/2025 undefined as per plain reading of Section 25 of the Act, it indicates that for passing a decree and order and for granting permanent alimony, there has to be an application and also the parties have to lead relevant evidence in order to come to a finding on the amount of alimony and the learned trial Court has committed an error in granting permanent alimony without there being an application or without any issue having been framed or without discussing any relevant evidence also. Further, learned advocate Mr.Ajmeri relied on the decision of the Division Bench of this Court passed in First Appeal No.2916 of 2019 and submitted that the present case is fully covered by the said decision passed in First Appeal No.2916 of 2019.
7. On the other hand, learned advocate Mr.Kalrav Patel for the respondent has submitted that he does not want to object the aforesaid.
8. The learned advocates for the respective parties jointly submitted that the matter may be remanded back to the learned Family Court to decide the issue on permanent alimony by giving an opportunity of hearing to both the parties and to lead their evidence.
9. After hearing the rival submissions of the learned advocates Page 3 of 8 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri May 09 2025 Downloaded on : Sat May 10 16:00:02 IST 2025 NEUTRAL CITATION C/FA/2654/2024 ORDER DATED: 07/05/2025 undefined for the respective parties and perusing the impugned judgment, the following points come before us for consideration:-
(1) Whether the learned Family Court has erred in directing the present appellant to pay the permanent alimony without any application is provided under Section 25 of the Act?
(2) Whether the present appellant proves that in absence of an application under Section 25 of the Act, the judgment and decree passed by the learned Family Court, directing the permanent alimony, is required to be set aside?
10. Our findings are as under:-
(1) Issue No.1 - Affirmative
(2) Issue No.2 - Affirmative
11. After hearing the rival submissions made by the learned advocates for the respective parties, so far as the present case is concerned, it is an admitted position that in the family suit filed before the learned Family Court, no issue has been framed by the learned Family Judge for granting permanent alimony. Further, from the judgment, it also appears that no application has been moved by the respondent before the learned trial Court for grant of any maintenance.
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12. In this regard, it is relevant to refer to the order dated 09.04.2025 passed by the Division Bench of this Court in the case of Darshankumar S/O Dhirajlal Kalani vs. Bhavika Darshankumar Kalani passed in First Appeal No.2916 of 2019. It is relevant to reproduce paragraphs 4.7 and 5 of the said judgment, which read as under:-
"4.7 Even in the case of Umarani (supra) of the High Court of Madras, paragraph 9 talks about filing of a further application. True it is that no technical approach can be expected from the Courts in family matters. Reading the section itself, particularly the language of Sec.25 indicates that the words are very clear, inasmuch as, it says that on the question of permanent alimony, there has to be an application to be made for such purposes. We may agree with the submissions of the learned counsel for the respondent that there is no word in the section which stipulates that the application need necessarily have to be written. However, in the facts of the case, not even an oral request for permanent alimony was made. The parameters for deciding the issue of alimony have been set out by the Hon'ble Supreme Court in the case of Amutha (supra). The judgement may not assist us as suggested by the learned counsel for the respondent on the issue whether an application has to be made. However, reading paragraphs 36 to 38 thereof, which we have reproduced, indicates that although the wife there had not specifically claimed any monetary relief and it may be an equitable relief, the Court has to consider factors which includes Page 5 of 8 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri May 09 2025 Downloaded on : Sat May 10 16:00:02 IST 2025 NEUTRAL CITATION C/FA/2654/2024 ORDER DATED: 07/05/2025 undefined duration of marriage, earning capacities, their age and health, standard of living, financial and non financial contribution to the marriage etc. 5 We, at this stage, on perusal of the decision under challenge, find that the Trial Court has specifically opined that neither of the parties were willing to disclose their income and resources though, documents on record suggested otherwise. The parties may be alive to the issue that in the event the Court was to order separation, some permanent alimony needed to be worked out as we have held in the earlier part of this judgement. Neither was there an application, oral or written, or a written statement that the wife was unable to maintain herself. We have been taken through the paper book and there are evidences on both sides and documents to suggest which can be a road map for the Trial Court to evolve a suitable figure for maintenance / permanent alimony, but without framing an issue thereon and directing oral evidence be recorded either at the hands of the husband or the respondent i.e. the husband and the wife i.e. the appellant and the respondent, no figure based on the U.S Courts without putting the issue for being dealt with on the basis of leading evidence, based on the suggested parameters, could have been awarded."
13. From the above judgment, it is very clear that as per Section 25 of the Act, it indicates that on the question of permanent alimony, there has to be an application made by the parties for such purpose. In the present case, as discussed above, no Page 6 of 8 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri May 09 2025 Downloaded on : Sat May 10 16:00:02 IST 2025 NEUTRAL CITATION C/FA/2654/2024 ORDER DATED: 07/05/2025 undefined application under Section 25 of the Act has been moved by the present respondent - wife before the learned Family Court for grant of any permanent alimony for herself and children. No issue has been framed by the learned Family Court regarding the permanent alimony and no evidence has been lead by both the parties on this aspect. Hence, without any application, direction issued by the learned Family Court to the present appellant to pay an amount of Rs.15,00,000/- by way of permanent alimony to the respondent - wife and children is against the settled principles of law and without any cogent evidence, having been produced by the parties and, therefore, the impugned judgment and decree to the extent of directing permanent alimony, is required to be quashed and set aside.
14. For the aforesaid reasons, the judgment and decree dated 14.05.2024 passed by the learned Family Court in Family Suit No.561 of 2013 is hereby quashed and set aside qua the granting of permanent alimony as awarded in favour of the respondent - wife. The matter is remanded back to the learned Family Court, Ahmedabad to decide the issue of permanent alimony afresh after giving opportunity of hearing to both the parties and to lead their oral as well as documentary evidence. Further, as per the judgment of the Hon'ble Apex Court in the case of Rajnesh vs. Neha and others reported in 2021(2) SCC 324, the parties have to disclose Page 7 of 8 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri May 09 2025 Downloaded on : Sat May 10 16:00:02 IST 2025 NEUTRAL CITATION C/FA/2654/2024 ORDER DATED: 07/05/2025 undefined the details of income, liabilities and assets by way of an affidavit before the learned Family Court.
15. It is clarified that we have not gone into the merits of the issue whether any amount of quantum can be awarded to the respondent by way of permanent alimony and that issue is left open for the learned Family Court to decide afresh. The learned Family Court, Ahmedabad is directed to decide the issue of permanent alimony in accordance with law and in accordance with the aforesaid direction within a period of 10 weeks from the date of receipt of copy of this order. Both the parties are directed to co- operate with the learned Family Court.
16. Accordingly, the present appeal is allowed to the aforesaid extent.
17. In view of disposal of the main appeal, First Appeal No.2774 of 2024 as well as the connected civil applications do not survive and the same are disposed of accordingly.
(BIREN VAISHNAV, J) (L. S. PIRZADA, J) Hitesh Page 8 of 8 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri May 09 2025 Downloaded on : Sat May 10 16:00:02 IST 2025