[Cites 2, Cited by 0]
Gauhati High Court
Page No.# 1/7 vs Xxxxxxxx on 9 December, 2025
Author: M. Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/7
GAHC010170822021
2025:GAU-
AS:16956-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Mat.App./20/2021
XXXXXXXX
D/O LATE PABITRA MAHANTA, W/O SRI DHRUBA JYOTI KALITA, R/O
KAMAKHYA GATE, N.N. ROAD, GUWAHATI, P.O.-BHARALUMUKH, P.S.-
BHARALUMUKH, DIST-KAMRUP(M), ASSAM
VERSUS
XXXXXXXX
S/O LATE RAMESH CH. KALITA, R/O LATASHIL, LAMB ROAD, GUWAHATI-
781001, P.O.-SILPUKHURI, P.S.-LATASHIL, DIST-KAMRUP(M), ASSAM
Advocate for the Petitioner : MR. B SAIKIA, MR. A NARZARI,MRS. P BARMAN
(BORKAKOTI)
Advocate for the Respondent : MS B DEVI, MR. D GOSWAMI,MR. P K DEKA,MS R GOSWAMI
Page No.# 2/7
-B E F O R E -
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
For the Appellant (s) : Mrs. P Barman (Borkakoti), Mr. A Narzari,
Advocates.
For the Respondent(s) : Ms. B Devi, Mr. P K Deka,
Ms. R. Goswami, Mr. D Goswami,
Advocates.
Date on which judgment is reserved : N/A
Date of pronouncement of judgment : 09.12.2025
Whether the pronouncement is of the
operative part of the judgment ? : No.
Whether the full judgment has been
Pronounced : Yes.
Page No.# 3/7
JUDGMENT & ORDER (ORAL)
(M. Zothankhuma, J)
Heard Ms. P Barman, learned counsel for the appellant wife as well as Mr. P
K Deka, learned counsel for the respondent husband.
2. The appellant has put to challenge the impugned judgment dated
21.09.2021 passed by the learned Principal Judge, Family Court No. II, Kamrup
(Metro), Guwahati in FC(Civil) Case No. 801/2014, by which the learned Family
Court has allowed the petition filed by the respondent husband for a decree of
divorce and held that the appellant wife was entitled to get a permanent
alimony of Rs. 5,00,000/- (Rupees Five Lakhs) under Section 25 of the Hindu
Marriage Act, 1955 (hereinafter referred to as the HMA Act, 1955).
3. The counsel for the appellant wife submits that the respondent husband
had prayed for a divorce decree in terms of Section 13 (1a) and Section 13(1b)
of the HMA Act, 1955. She submits that though the learned Family Court did not
find any ground of cruelty established against the appellant, the learned Family
Court had granted the divorce in violation of Section 13(1a) of the HMA Act,
1955, by granting permanent alimony of Rs. 5 Lakhs to the appellant. Further,
the learned Family Court had also found that the appellant wife had deserted
the respondent husband, even though the same had not been proved by the
respondent husband. She further submits that despite the appellant and the
husband not having filed any application under Section 25 of the HMA Act,
Page No.# 4/7
1955, the learned Family Court had granted the permanent alimony of Rs.
5,00,000/- to the appellant wife. She thus submits that the impugned judgment
dated 21.09.2021 being illegal and in violation of the provisions of Sections
13(1a) and 13(1b) and Section 25 of the HMA Act, 1955, the same should be
set aside.
4. Mr. P K Deka, learned counsel for the respondent husband submits that
though there has been desertion of the respondent by the appellant wife, the
desertion had occurred for a few months prior to the filing of the application and
not for two years. He also submits that the appellant wife is agreeable to the
divorce that was sought for by the respondent husband. However, the road to
settlement between the parties is blocked by the high demand of the appellant
wife, inasmuch as, the wife is claiming permanent alimony far beyond the
means of the respondent husband.
5. We have heard the learned counsels for the parties.
6. As can been seen from the pleadings, the issue before the learned Family
Court was whether a divorce decree could be granted to the respondent
husband, in terms of Section 13 (1a) and Section 13(1b) of the HMA Act, 1955,
which states as follows -
"13. Any marriage solemnized, whether before or after the commencement
of this Act, may, on a petition presented by either the husband or the
wife, be dissolved by a decree of divorce on the ground that the other
party -
(1a) has, after the solemnization of the marriage, treated the petitioner
with cruelty; or]
(1b) has deserted the petitioner for a continuous period of not less than
two years immediately preceding the presentation of the petition or]
Page No.# 5/7
7. Section 25 of the HMA Act, 1955 also states as follows -
"25. Permanent alimony and maintenance. - (1) Any court exercising
jurisdiction under this Act may, at the time of passing any decree or at
any time subsequent thereto, on application made to it for the purpose by
either the wife or the husband, as the case may be, order that the
respondent shall pay to the applicant for her or his maintenance and
support such gross sum or such monthly or periodical sum for a term not
exceeding the life of the applicant as, having regard to the respondent's
own income and other property, if any, the income and other property of
the applicant, [the conduct of the parties and other circumstances of the
case], it may seem to the court to be just, and any such payment may be
secured, if necessary, by a charge on the immovable property of the
respondent.
(2) If the court is satisfied that there is a change in the circumstances of
either party at any time after it has made an order under sub-section (1),
it may at the instance of either party, vary, modify or rescind any such
order in such manner as the court may deem just.
(3) If the court is satisfied that the party in whose favour an order has
been made under this section has re-married or, if such party is the wife,
that she has not remained chaste, or, if such party is the husband, that
he has had sexual intercourse with any woman outside wedlock, [it may
at the instance of the other party vary, modify or rescind any such order
in such manner as the court may deem just].
8. The learned Family Court in the impugned judgment has clearly come to
the finding that no case of cruelty has been established by the respondent
husband against the appellant wife.
9. The 2nd issue was with regard to whether the ingredients for applying
Section 13(1b) of the HMA Act, 1955 had been established by the respondent
husband. It is noticed that the marriage between the parties had occurred on
27.01.2012 and that in terms of petition for divorce made under Section 13(1b)
of the HMA Act, 1955 by the respondent husband which was filed on
Page No.# 6/7
19.09.2014, the appellant wife had allegedly deserted her husband sometime in
March, 2014. This is clear from the finding of the learned Family Court in the
impugned judgment.
10. The above being said, Section 13(1b) of the HMA Act, 1955 requires
desertion for a continuous period of not less than 2 years, immediately
preceding the presentation of the petition. As it is not the case of either of the
parties that there has been a desertion for a period of 2 years, prior to filing of
the petition under Section 13(1b) of the HMA Act, 1955, we find that 13(1b) of
the HMA Act, 1955 is not attracted to the facts of the present case. As such,
there was no ground or reason for the learned Family Court to have passed the
divorce decree.
11. Further, a perusal of Section 25 of the HMA Act, 1955 shows that
permanent alimony can only be granted, if either of the parties submit an
application under Section 25. As it is an admitted position by both the parties
that neither of them had submitted an application under Section 25 of the HMA
Act, 1955, the learned Family Court was in error in granting permanent alimony,
when it had not been sought for.
12. For the reasons stated above, the impugned judgment and decree are
not sustainable in law and the same are accordingly set aside.
13. Any amount submitted by the respondent husband towards permanent
alimony in terms of the impugned judgment should be returned to the
respondent husband.
14. With the above observations, this matrimonial appeal stands allowed.
Page No.# 7/7
15. Return the TCR forthwith.
JUDGE JUDGE
Comparing Assistant
Pranab by Pranab
Kumar Date:
2025.12.09
Deka 21:13:03
+05'30'
