Gujarat High Court
Darshankumar S/O Dhirajlal Kalani vs Bhavika Darshankumar Kalani on 8 April, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
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Reserved On : 24/03/2025
Pronounced On : 08/04/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2916 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/FIRST APPEAL NO. 2916 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE BIREN
VAISHNAV
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
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DARSHANKUMAR S/O DHIRAJLAL KALANI
Versus
BHAVIKA DARSHANKUMAR KALANI
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Appearance:
MR VISHAL C MEHTA(6152) for the Appellant(s) No. 1
MR. MEHUL SHAH, SENIOR COUNSEL WITH SAMEE A URAIZEE,
ADVOCATE for the Appellant(s) No. 1
MR SALIL M THAKORE(5821) for the Defendant(s) No. 1
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CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
CAV JUDGMENT
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE
BIREN VAISHNAV)
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1 This appeal has been filed by the appellant, who was
the original plaintiff in Family Suit No. 61 of 2013 filed
before the Family Court at Vadodara. The suit was filed
by the appellant under the provisions of Sec.13(1)(i-a) of
the Hindu Marriage Act, 1955 (hereinafter referred to as
"the Act"), for obtaining a decree of divorce. The Family
Court by its judgement and decree dated 16.01.2019,
allowed the Family Suit and decreed dissolution of the
marriage. However, while allowing the suit, the Family
Court directed the appellant to pay a sum of Rs.70 lakhs
towards permanent alimony to the respondent-wife under
Sec.25 of the Act. The appeal has been filed only to the
extent that the Family Court directed payment of
permanent alimony.
2 We have heard Mr.Mehul Shah, learned Senior
Counsel appearing with Mr.Sami Uraizee, learned
advocate for the appellant. Mr.Shah, learned Senior
Counsel, made the following submissions:
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2.1 Mr.Shah, learned Senior Counsel, would submit that
reading Section 25 of the Act would indicate 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. He would submit that
the Trial Court committed an error in granting permanent
alimony without there being an application, without any
issue being framed or without discussing any relevant
evidence.
2.2 Mr.Shah, learned Senior Counsel, would submit that
apart from any written application, the respondent even
did not make any oral request or prayer before the lower
Court, and therefore, the order and the direction to pay
permanent alimony is ex-facie unsustainable in law.
Mr.Shah, learned Senior Counsel, would further submit
that it was incumbent upon the Family Court to first
discuss, appreciate and then record categorical findings
as regards the financial capacity of the appellant as well
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as the respondent-wife and such findings have to be
based on appreciation of evidence on all material issues.
The learned Court did not even frame any issue with
regard to permanent alimony.
2.3 Mr.Shah, learned Senior Counsel, would further
submit that the Family Court, without any rational base,
assessed the sum of Rs.70 lakhs to be granted to the
respondent as permanent alimony. The Family Court did
not even discuss the issue with regard to income and
property of the appellant as also the status of the parties
including that of the respondent. Mr.Shah, would further
submit that the respondent-wife, even in her written
statement at Exh.48 has nowhere prayed for the grant of
any monetary assistance or permanent alimony so as to
constitute a prayer thereof.
2.4 Mr.Shah, learned Senior Counsel, would submit that
even an application which was preferred by the
respondent under Sec.24 of the Act praying for grant of
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maintenance pendent lite could not be treated as an
application under Sec.25. Even otherwise, vide order
dated 13.11.2017, the application came to be disposed of
by the lower Court categorically observing that the
respondent had shown lack of interest to proceed with
the same. On this count also, the respondent was not
entitled to the alimony as directed by the Trial Court.
Mr.Shah, would further submit that it is a settled
proposition of law that grant of permanent alimony is an
equitable relief. As per the mandate of Sec.25(1), conduct
of the parties is also important to evaluate the amount.
He would submit that the respondent has levelled false,
frivolous and serious allegations against the appellant
accusing him of an illicit relationship with other woman.
2.5 According to Mr.Shah, learned Senior Counsel, the
respondent in her cross-examination, had refused to
disclose material details regarding salary slips from her
employment in the United States. This prevented the
Family Court from assessing the social and financial
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status of the respondent and this itself disentitled the
respondent from receiving any alimony. In the submission
of Mr.Shah, the appellant had produced evidence to show
that a lease agreement was executed in her favour
whereby the wife was to pay monthly rent of 850 dollars
and that her educational qualifications were sound
enough to give her sustenance and also that she has
purchased her car. All these material facts ought to have
been considered and the Trial Court even in para 9.14 of
the judgement recorded a finding that the respondent is
able to maintain herself. Despite this, the direction to pay
a sum of Rs.70 lakhs towards permanent alimony was
misconceived.
2.6 Mr.Shah, learned Senior Counsel, would submit that
the direction to pay the permanent alimony cannot in any
manner be treated to be a direction under Sec.26 of the
Act. He, moreover, submitted that the appellant
continued to pay the sum as ordered by the U.S Court
towards child support, whereas the respondent has not
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abided by the directions of the Court with regard to child
access. Mr.Shah, in support of his submissions relied
upon the following decisions:
(1) Jalendra Padhiary Vs. Pragati Chhotary,
reported in 2018 (16) SCC 773.
(2) Sukhdev Singh Vs. Sukhbir Singh., reported
in AIJEL SC 74725.
(3) Vinny Paramvir Parmar Vs. Paramvir
Parmar., reported in 2011 (13) SCC 112.
(4) Vijayshree D/o. Ganesh Ingle Erstwhile
Vijayshree W/o. Nishant Kale Vs. Dr.Nishant
Arvind Kale., reported in 2021 SCC Online Bom
2.7 Mr.Mehul Shah, learned Senior Counsel, would try
and distinguish the decisions relied upon by Mr.Salil
Thakore, learned counsel for the respondent, on the
question of whether an application, oral or written is
necessary.
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3 Mr.Salil Thakore, learned counsel appearing for the
respondent, made the following submissions:
3.1 That the direction to pay alimony of Rs.70 lakhs was
just and proper. Despite the order passed by this Court,
the husband-appellant herein had not deposited the
amount, and therefore, no indulgence can be given to the
appellant. Even on 22.07.2019, the appellant-husband
had made a statement before this Court that he will
deposit the amount of Rs.70 lakhs till March 2023 of
which he had deposited only Rs.15 lakhs. Relying on a
decision in the case of Palaniappan Vs. Raman,
reported in AIR 1929 Mad 672., he would submit that
unless the appellant purges his contempt, the appeal
cannot be heard by this Court.
3.2 On the submission of the appellant that an
application is necessary to award permanent alimony,
Mr.Thakore, learned counsel, would submit that there is
no requirement under Sec.25 to file an application. The
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provision of granting permanent alimony is a beneficient
provision. For this submission, Mr.Thakore, learned
counsel, would rely on the following decisions:
(1) Amutha Vs. A.R.Subramanian, reported in
2024 SCC On Line SC 3822.
(2) Umarani Vs. D.Vivekannandan., reported in
2000 SCC OnLine Mad 50.
(3) Surajmal Ramchandra Khati vs.
Rukminibai., reported in 1999 SCC OnLine MP
(4) Vijayashree Vs. Nishant Arvind Kale.,
reported in 2021 SCC OnLIne Bom 29.
(5) S.Chandra Vs. C.V.Sridharan., reported in
2007 SCC OnLIne Mad 1657.
(6) C.H.Bhatt Vs. Naliniben C. Bhatt., reported
in (1995) 2 GLR 1525.
(7) Mahendra Kumar Mishra vs.
Smt.Snehalata Kar., reported in AIR 1983 Ori 74.
(8) A.Jairam Vs. A.Sumar., reported in 2005
SCC OnLine Raj 1124.
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(9) Munuszvamy Rajoo Vs. Hansa Rani.,
reported in AIR 1975 Mad 15.
(10) Satish Kumar Sawhney Vs. Prem Sawhney.,
reported in 1997 SCC OnLine Del 207.
3.3 Mr.Thakore, learned Counsel, would submit that in
light of these decisions, it is evident that the Hon'ble
Supreme Court also had awarded maintenance and so
had other High Courts without any application. The
Courts have taken a view that an application can even be
oral. From the evidence on record, Mr.Salil Thakore,
learned counsel, would submit that a letter of one KPMG
is part of the evidence which shows the earning summary
of the appellant. Cross-examination was done on the issue
of income which is as good as oral application. He would
therefore submit that both the sides therefore were alive
to the issue of alimony. Mr.Thakore, learned counsel,
would submit that it is a well settled principle that the
Court should avoid taking a very technical view in such
matters.
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3.4 Mr.Thakore, learned Counsel, would submit that
award of Rs.70 lakhs as alimony was totally just. Reading
various paragraphs of the judgement under challenge,
Mr.Thakore, would submit that the parties got married in
February 2002. Their first son Aum was born in Vadodara
on 12.07.2004 and from 2004 to 2008, the appellant was
working in Amul and both i.e. the appellant and the
respondent were staying in Anand. In August 2005, the
appellant shifted to the United States, whereas the
respondent shifted to the United States in 2008. The
appellant has qualification of MBA (Marketing) and MBA
(Finance) and was working at "Delloitte". Falling back on
the paper book, he would submit that there is a letter
showing that he was with KPMG, where per annum
income was Rs.1.15 lakhs U.S.Dollars and as per the 2012
exchange rate, it was Rs.60 lakhs per annum, which as
per 2025 exchange rate would be Rs.99 lakhs per annum.
He would, therefore, submit that even if the KPMG
earnings are perused, the award of Rs.70 lakhs was far
more lower.
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3.5 Mr.Salil Thakore, learned counsel, would submit
that out of the wedlock, second son Shivam was born on
15.05.2010. The husband left for the United States in
2011. On an application filed for permanent and
temporary custody in the U.S, the husband in such
application made a statement that he is capable of taking
care of children by providing financial support. He also
relied on an order dated 01.05.2012 passed by the Circuit
Court of Cook County, Illinois, USA, which directed the
appellant to pay 1017.55 dollars twice a month. The
payment was to begin from 15.05.2012 and would
terminate on 15.05.2028. This, as per the exchange rate
of 2012 would be 1.94 crores and as per the 2025
exchange rate, would be 3.20 crores. Obviously therefore,
the permanent alimony awarded was very reasonable.
The conduct of the appellant indicates that he has not
visited the minor children since 2012, i.e. almost 13 years
now. He has addressed E-mail to the wife indicating that
she is ill equipped to maintain the children.
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3.6 Mr.Thakore, learned Counsel, would further submit
that though Sec.24 application was dismissed for non-
prosecution, the submission of the appellant's counsel
that this would disentitle permanent alimony is
misconceived as it is held by various decisions of the
Hon'ble Supreme Court and High Courts that even an
oral application is sufficient. Mr.Thakore, learned
Counsel, would then inviting our attention to the
Examination-in-Chief of the appellant where the appellant
has stated that he would not want to produce I.T returns
but admits that he had worked in Delloitte and KPMG.
These are important documents to suggest that the award
of alimony is just and proper. The observations of the
Family Court based on the U.S Court's order is justified
for the reasons that he has submitted earlier.
3.7 Mr.Thakore, learned Counsel, would submit that
even if no issue was framed and no evidence was led, the
Trial Court had before it the evidence on record, based on
which it granted permanent alimony to the respondent.
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This Court should not remand the matter, as it has been
held by several decisions of this Court that where
evidence exists, the Court can decide the issue which has
not been framed and remands have to be avoided
particularly when in matrimonial matters strict rules of
evidence are not applicable. To the aforesaid submission,
he would rely on the following decisions:
(1) Ashwinkumar K. Patel vs. Upendra J.Patel,
reported in AIR 1999 SC 1125.
(2) Shivakumar V. Sharanabasappa., reported
in (2021) 11 SCC 277.
(3) Municipal Corpn., Hyderabad Vs. Sunder
Singh., reported in (2008) 8 SCC 485.
(4) Bhairab Chandra Vs. Ranadhir Chandra.,
reported in AIR 1988 SC 396.
(5) Sri Gangai Vinayagar Temple Vs.
Meenakshi Ammal., reported in (2015) 3 SCC
4 Having considered the submissions made by the
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learned counsels appearing for the respective parties, the
Court is required to decide as to whether:
(1) In absence of an application, either oral or
written, was it proper for the Family Court to award
permanent alimony in favour of the respondent? In
fact, is any application, oral or written, necessary to
do so.
(2) Was the Family Court right in its approach in
awarding such an amount on the basis of certain
findings of the U.S. Court without discussion of any
material evidences which were part of the record,
particularly when no issue with regard to such
permanent alimony was framed. In addition thereto,
when there was evidence available on record,
without the parties having been examined on this
issue though they were alive to it, could the Trial
Court pass an order granting such alimony.
4.1 Since both the learned counsels for the respective
parties have extensively relied on the provisions of
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Sec.24, 25 and 26 of the Hindu Marriage Act, the same
are reproduced as under:
" 24. Maintenance pendente lite and expenses
of proceedings.--Where in any proceeding under
this Act it appears to the court that either the wife or
the husband, as the case may be, has no
independent income sufficient for her or his support
and the necessary expenses of the proceeding, it
may, on the application of the wife or the husband,
order the respondent to pay to the petitioner the
expenses of the proceeding, and monthly during the
proceeding such sum as, having regard to the
petitioner's own income and the income of the
respondent, it may seem to the court to be
reasonable.
[Provided that the application for the payment
of the expenses of the proceeding and such monthly
sum during the proceeding, shall, as far as possible,
be disposed of within sixty days from the date of
service of notice on the wife or the husband, as the
case may be.]
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 3 * * *
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
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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, 5 [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].
26. Custody of children.--In any proceeding under
this Act, the court may, from time to time, pass such
interim orders and make such provisions in the
decree as it may deem just and proper with respect
to the custody, maintenance and education of minor
children, consistently with their wishes, wherever
possible, and may, after the decree, upon application
by petition for the purpose, make from time to time,
all such orders and provisions with respect to the
custody, maintenance and education of such
children as might have been made by such decree or
interim orders in case the proceeding for obtaining
such decree were still pending, and the court may
also from time to time revoke, suspend or vary any
such orders and provisions previously made:
[Provided that the application with respect to
the maintenance and education of the minor
children, pending the proceeding for obtaining such
decree, shall, as far as possible, be disposed of
within sixty days from the date of service of notice
on the respondent.]
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4.2 Section 24 of the Hindu Marriage Act deals with a
situation when any proceeding is pending under the Act
and when it appears to the Court that either the wife or
the husband has no independent income, it may, on the
application of the wife or the husband, order the
respondent to pay expenses of the proceedings and
monthly during the proceedings. Section 25 deals with
the issue of permanent alimony. Reading the section
indicates that any Court exercising jurisdiction under the
Act may, at the time of passing any decree, on
application made to it for the purpose by either the
wife or the husband may order the respondent to pay to
the applicant for her or his maintenance and support such
sum as may be decided having regard to the respondents
own income and property and the income and property of
the applicant. Sub-sec.2 of Sec.25 indicates that it is open
for a Court to change or vary the amount if there is a
change in circumstance. Sec.26 talks of custody of the
children. It indicates that the custody shall be given after
a decree on an application made for such purpose.
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4.3 Considering the decision of the Hon'ble Supreme
Court in the case of Jalendra Padhiary (supra), what is
noteworthy is that in an appeal arising from a judgement
of the Division Bench where the Division Bench of the
High Court has dismissed the appeal of the husband, on
reading the facts would indicate that the appellant had
filed the appeal only being aggrieved by that part of the
order of the Family Court which had granted permanent
alimony to the respondent - wife. Reading the aforesaid
judgement in light of the findings the Family Court has
arrived at in our case, we find that on the factual
narration of the case there is no discussion, appreciation
or reasoning on the financial earning capacity of both
parties. The Hon'ble Supreme Court in the case of
Sukhdev Singh (supra), while considering the
applicability of Secs.24 and 25, when a marriage is
declared void, in paragraphs 22 to 26 observed thus:
"22. The remedy under Section 25 of the 1955 Act is
completely different from the remedy under Section
125 of the CrPC. It confers rights on the spouses of
the marriage declared as void under Section 11 of
the 1955 Act to claim maintenance from the other
spouse. The remedy is available to both husband and
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wife. The principles which (1988) 1 SCC 530 apply
to Section 125 of the CrPC cannot be applied
to Section 25 of the 1955 Act. The relief
under Section 125 of the CrPC can be granted to
wife or child and not to husband.
23. Now, we come to the decision in the case
of Abbayolla Reddy v. Padmamma5. The Andhra
Pradesh High Court's view is based on the right of a
spouse to claim maintenance under Section 18 of the
Hindu Adoptions and Maintenance Act, 1956. This is
a specific provision for the grant of maintenance to
the wife. The right under Section 25 of the 1955 Act
is different. The right is created in favour of both
spouses once there is a decree passed
under Sections 9 to 13 of the 1955 Act. The third
decision is in the case of Navdeep Kaur v. Dilraj
Singh6. In paragraph 10 of the said decision, the
Himachal Pradesh High Court gave a very narrow
meaning to the 'decree in proceedings' under the
1955 Act by holding that the expression "husband
and wife" used in Section 23 must mean legally
wedded husband and wife. This view is entirely
contrary to the view taken in the case of Chand
Dhawan1.
24. The Bombay High Court, in the case of Leelabai,
dealt with the reference made to the Full Bench of
the three Hon'ble Judges. The issue referred to Full
Bench was the same one we are dealing with. The
Full Bench of the Bombay High Court relied upon
the decision in the case of Yamunabai6. In
paragraph 18 of the judgment, the Full Bench has
coined the term "illegitimate wife". Calling the wife
of a marriage declared as void as an illegitimate wife
is very inappropriate. It affects the dignity of the
concerned woman. Unfortunately, the Bombay High
Court went to the extent of using the words
"illegitimate wife". Shockingly, in paragraph 24, the
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High Court described such a wife as a "faithful
mistress". It is pertinent to note that the High Court
has not AIR 1999 AP 19 (2003) 1 HLR 100 : 2002
SCC OnLine P&H 498 used similar adjectives in the
case of husbands of void marriages. Under Section
21 of the Constitution of India, every person has a
fundamental right to lead a dignified life. Calling a
woman an "illegitimate wife" or "faithful mistress"
will amount to a violation of the fundamental rights
of that woman under Article 21 of the Constitution of
India. Describing a woman by using these words is
against the ethos and ideals of our Constitution. No
one can use such adjectives while referring to a
woman who is a party to a void marriage.
Unfortunately, we find that such objectionable
language is used in a judgment of the Full Bench of
a High Court. The use of such words is misogynistic.
The law laid by the Full Bench of the Bombay High
Court is obviously not correct.
25. Then comes the decision in the case of Savitaben
Somabhai Bhatiya v. State of Gujarat & Ors7. We
must note here that in this decision, this Court was
dealing with the proceedings under Section 125 of
the CrPC which is of a summary nature. This Court
dealt with the eligibility of a spouse to claim
maintenance under Section 125 of the CrPC.
Therefore, none of these decisions support the stand
taken by the appellant-husband.
26. An apprehension is the expression by the learned
counsel for the appellant that if it is held
that Section 25 of the 1955 Act also applies to void
marriages, it will lead to a ridiculous result. He gave
an example of a wife whose first marriage is
subsisting, inducing another man to marry her. He
also gave an example of a daughter getting married
to her father. We must note that Sub-Section
1 of Section 25 uses the word "may". A grant of a
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decree under Section 25 of the 1955 Act is
discretionary. If the conduct of the spouse who
applies for maintenance is such that the said spouse
is not entitled to discretionary relief, the Court can
always turn down the prayer for the grant of
permanent (2005) 3 SCC 636 alimony under Section
25 of the 1955 Act. Equitable considerations do
apply when the Court considers the prayer for
maintenance under Section 25. The reason is
that Section 25 lays down that while considering the
prayer for granting relief under Section 25, the
conduct of the parties must be considered."
4.4 In paragraph 26, the Hon'ble Supreme Court
observed that the grant of decree under Sec.25 is
discretionary and the Court can always take into
consideration the conduct of the spouse who applies for
maintenance. In the case of Vinny Paramvir Parmar
(supra), on the point of consideration of what would be
the reasonable amount, the Apex Court held that the
Court has to consider the status of the parties and their
respective needs. Paragraphs 12 to 14 of the decision
read as under:
"12) As per Section 25, while considering the claim
for permanent alimony and maintenance of either
spouse, the respondent's own income and other
property, and the income and other property of the
applicant are all relevant material in addition to the
conduct of the parties and other circumstances of
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the case. It is further seen that the court considering
such claim has to consider all the above relevant
materials and determine the amount which is to be
just for living standard. No fixed formula can be laid
for fixing the amount of maintenance. It has to be in
the nature of things which depend on various facts
and circumstances of each case. The court has to
consider the status of the parties, their respective
needs, the capacity of the husband to pay, having
regard to reasonable expenses for his own
maintenance and others whom he is obliged to
maintain under the law and statute. The courts also
have to take note of the fact that the amount of
maintenance fixed for the wife should be such as she
can live in reasonable comfort considering her status
and mode of life she was used to live when she lived
with her husband. At the same time, the amount so
fixed cannot be excessive or affect the living
condition of the other party. These are all the broad
principles courts have to be kept in mind while
determining maintenance or permanent alimony.
13) It is not in dispute that before their marriage,
the appellant-wife was working as Air Hostess with
Cathay Pacific Airlines and getting sizeable income.
It is also brought to our notice that after marriage,
at the instance of the respondent, she resigned from
her job. The particulars furnished also show that at
present she is living with her sister at Mumbai and
she does not possess any immovable property at
Mumbai.
14) According to the respondent-husband, at the
time of filing of petition under Section 25, she
suppressed her employment and income thereon and
on this ground her entire case has to be rejected.
The fact remains, though she was employed for a
shorter period which was not stated so
subsequently, she clarified that she had earned only
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an amount of Rs. 1.5 lakhs from casual assignments
from July, 2004 to September, 2009. She also
asserted that her income was not fixed or regular
and she is struggling to take up casual assignments
of interior decoration even though she was not
formally trained for the same. She also explained
that at particular time her employment with JJ
Valaya Couture was only transitory in nature and
was not permanent, it was not a source of regular
and permanent income for her and that she had not
been issued even any letter of appointment setting
out the terms of employment and she further
explained that at the relevant time she was earning
an ad hoc remuneration of Rs. 20,000/-per month.
There is no reason to either reject or disbelieve her
explanation. In the same way, though she had
highlighted salary income of the respondent,
admittedly, those figures include allowances and
other payments under various heads of salary. The
respondent has also placed certificates from income
tax authorities such as Form 16C etc."
4.5 In the Second Appeal filed before the Bombay High
Court in the case of Vijayshree (supra), the question
before the Court was whether it is necessary for a wife to
file an application in writing. Considering various
decisions on the issue, the Bombay High Court held that
grant of permanent alimony under Sec.25 and the
expression "on application made to it" would mean that
the application has to be in writing or orally or there can
be a written application separately praying for
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maintenance. In para 22, the Bombay High Court held as
under:
"22. For the reasons aforestated, in the opinion of
this Court, the 'application' as referred to in section
25 of the Act implies any application either in
writing or oral for the prayer of permanent alimony
and maintenance. The mode and form of the
application under section 25 of the Act for claiming
permanent alimony is immaterial. What is esential is
the material before the Court to decide the same.
The Court cannot pass any order of permanent
alimony and maintenance in vacuum. The Court has
to consider the parameters as guided in the
provision itself. The relief is incidental in nature and
it is not the substantive relief."
4.6 Reading the aforesaid decisions, we may consider
the decisions cited by the learned counsel for the
respondent. In the case of Amutha (supra), challenge
was to the validity of the order of the Madras High Court
which had set aside the judgement of the lower Court and
granted a decree of divorce to the husband- respondent
before the Hon'ble Supreme Court. Paragraphs 36 to 39
deals with the parameters of granting maintenance,
which reads as under:
"36. While granting the decree of divorce, we deem
it appropriate to award permanent alimony to the
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appellant wife and the parties' daughter. Although
the appellant wife has not specifically claimed any
monetary relief or maintenance during these
proceedings, it is trite and equitable to grant such
relief, considering the financial status of the parties,
their professional backgrounds, and the larger
interest of justice. The financial independence of a
party does not preclude the High Court from
granting maintenance if it is necessary to secure
dignity, social standing, and financial stability
postdivorce, especially in cases where the marriage
has subsisted for a long period.
37. It is undisputed that both, the appellant and the
respondent are software engineers and were earning
handsomely at the time of their marriage more than
two decades ago. It is reasonable to infer that their
respective incomes must have increased
substantially over the years.
However, considering the dynamics of their
separation and the financial burdens the appellant
may have borne during the protracted litigation, this
Court finds it necessary to award her a lumpsum
permanent alimony of Rs. 50,00,000/- (Rupees Fifty
lakhs only) to secure her financial independence and
ensure that she can lead her life with dignity. As
observed in Kiran Jyot Maini vs. Anish Pramod Patel
11, the concept of maintenance and alimony
encompasses a right to sustenance that allows the
spouse to live in a manner suited to her status and
standard of living, and the aim is not to penalise the
husband.
38. Further, this Court recognizes the responsibility
of both parents toward the well-being, education,
and future prospects of their child. Although the
daughter may be of an age where she is approaching
independence, the financial support provided
through this judgment will be instrumental in
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meeting her educational needs as well as expenses
related to her future marriage. A sum of Rs.
50,00,000/- (Rupees Fifty lakhs only) is, therefore,
awarded to the daughter for these purposes. This is
in line with the principles of safeguarding the
interests of children suffering under distress of such
prolonged matrimonial disputes between the
parents. Both parents share the duty of ensuring the
daughter's well-being and future security, and this
financial provision will contribute to fulfilling that
duty.
39. In granting permanent alimony and financial
support, this Court is mindful of the principles laid
down in Rajnesh vs. Neha12. The factors to be
considered while awarding maintenance or alimony
include the duration of the marriage, the earning
capacities of the parties, their age and health, their
standard of living, and their financial and non-
financial contributions to the marriage. Here, the
appellant has spent substantial time during the
pendency of the litigation without the emotional or
financial support of the respondent. Moreover,
granting a lumpsum as permanent alimony ensures
finality and reduces the scope for future litigation
between the parties. While the appellant is
presumably capable of earning, she has undoubtedly
faced financial and emotional setbacks due to the
prolonged litigation and separation. Similarly, the
financial provision for the daughter ensures her
welfare is not compromised due to the breakdown of
the marital relationship between her parents."
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
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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 duration of marriage,
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earning capacities, their age and health, standard of
living, financial and non financial contribution to the
marriage etc.
4.8 Mr.Salil Thakore, learned counsel for the
respondent, has taken us through the various documents
on record to press into service the fact that the appellant
was financially stable and independent enough to honour
the award of maintenance of Rs.70 lakhs as awarded by
the Trial Court.
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.
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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.
6 For the aforesaid reasons, the judgement and order
of the Family Court, Vadodara, passed in Family Suit No.
61 of 2013 dated 16.01.2019, is hereby quashed and set
aside. As far as alimony is concerned, the matter is
remanded to the Family Court, Vadodara, to decide the
issue of permanent alimony afresh by directing the
appellant and the respondent to examine themselves
orally and by leading their evidence, oral as well as
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documentary.
We clarify that we have not gone into the merits of
the issues, namely, whether at all and if, then the
quantum that can be awarded to the respondent of
permanent alimony and that issue is left at liberty for the
Family Court to decide afresh on the parties leading their
evidences, oral as well as documentary. The Family Court
is directed to decide the issue of permanent alimony in
accordance with the aforesaid directions within a period
of ten weeks from the date of receipt of certified copy of
this order.
The appeal is allowed accordingly to the aforesaid
extent.
In view of disposal of the main appeal, civil
application will not survive and stands disposed of,
accordingly.
(BIREN VAISHNAV,ACJ)
(HEMANT M. PRACHCHHAK,J)
BIMAL
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Further Order.
After the order is pronounced, request is made by Mr.
Mehul Shah, learned Senior Advocate for the appellant that
pursuant to the earlier order passed by this Court, an
amount of Rs.15,00,000/- has been deposited before the
registry of this Court. Mr. Shah, learned Senior Advocate
requests that the said amount may be returned to the
appellant.
Since, we have remanded the matter for an
appropriate decision to the Family Court at Vadodara, the
registry shall transmit the amount back to the Family Court
at Vadodara and it shall be deposited with the Nazir of the
Family Court and the Nazir of the Family Court, shall invest
the said amount in the Fixed Deposit Receipt for a period
of six months and the deposit shall be subject to further
orders that may be passed by the Family Court in the
Family Suit.
(BIREN VAISHNAV,ACJ)
(HEMANT M. PRACHCHHAK,J)
BIMAL
