Gujarat High Court
Nilamben W/O Kaushikkumar Patel And D/O ... vs Kaushikkumar Kiritbhai Patel on 11 February, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/334/2025 ORDER DATED: 11/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 334 of 2025
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NILAMBEN W/O KAUSHIKKUMAR PATEL AND D/O BHULABHAI
DAHYABHAI & ANR.
Versus
KAUSHIKKUMAR KIRITBHAI PATEL
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Appearance:
MR MAHESH BHAVSAR(1781) for the Appellant(s) No. 1,2
MRS HM BHAVSAR(5340) for the Appellant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 11/02/2025
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)
1. This appeal challenges the order dated
26.09.2024 passed by the Family Court, Gandhinagar, by
which, the application at Ex.49 filed by the applicants-
appellants for permanent maintenance under Section 25 of
the Hindu Marriage Act, 1955 (for short 'the Act') has
been dismissed.
2. Mr.Mahesh Bhavsar, learned counsel for the
appellants would submit, by reading Section 25 of the Act,
that the words "any decree" would also include a decree
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when the husband's application for divorce has been
dismissed. He would therefore submit that even if a decree
of divorce has not been granted and the relationship of
marriage subsists between the parties, the wife is entitled
to the permanent alimony under Section 25 of the Act.
3. We have perused the judgment and order under
challenge. Reading of the reasonings would indicate that
the marriage of the parties was solemnized on 15.05.1998.
Thereafter, it appears that the husband sought a decree of
divorce but that decree was not granted, even the
husband's challenge in the appeal before the competent
Court, also failed. Claiming permanent alimony to be a
right to the maintenance, the appellants filed an
application under Section 25 of the Act praying for
permanent alimony. It is also apt to point out that Section
125 of the Criminal Procedure Code was also invoked for
claiming maintenance for the appellants and an amount of
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C/FA/334/2025 ORDER DATED: 11/02/2025
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maintenance has been granted in those proceedings. The
contention of the learned counsel for the appellants that,
irrespective of the proceedings under Section 125 of the
Act, the wife can claim permanent alimony and
maintenance even when the marriage subsists. Considering
the scheme of the Act, especially the Hindu Marriage Act,
1955 under the chapter on jurisdiction and procedure, the
provisions provide for the jurisdiction of Court under
Section 19 where a petition for divorce can be filed.
Sections 20 and 21 of the Act deal with the contents and
verification of petitions. The procedural aspects also deal
with an application that can be filed by the wife claiming
interim maintenance under Section 24 of the Act. Section
25 of the Act talks about permanent alimony and
maintenance. The contention of the learned counsel for the
appellants that any decree would also include "a decree"
where application of the husband is rejected not appealing
to us on the ground that even as when sub-section 3 of
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Section 25 of the Act.
4. Perusal of the order of the learned Judge, which
has aggrieved the appellants, would indicate that the
learned Judge in para 19 of the judgment has considered
this position of law in context of Section 125 of the Act.
Paras 19 to 20 of the judgment read as under:-
"19. Section 25 of Hindu Marriage Act provides
for payment of permanent alimony and
maintenance and confers to the court jurisdiction
to grant it to either party to the marriage. It
provides that "any court exercising jurisdiction
under this Act may, at the time of passing of 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 opposite party shall pay the
applicant..." As such as per this section either the
wife or husband can apply to the court under
this section at the time of passing of any decree
or at any time subsequent thereto for payment of
maintenance. Here in the present case, the
husband's petition u/s.13 of the act was dismissed
and appeal against the same was also dismissed
and there was no decree within the meaning of
sec.25 of the Act and therefore this court is of
the opinion that the petitioner wife's application
u/s. 25 of the H.M. Act is not maintainable. It
cannot be controverted that maintenance can be
granted under this act to either parties to the
marriage at the time or after passing of the
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decree for restitution of conjugal rights or for
judicial separation or for nullity of marriage or
divorce. This are the four kinds of decrees passed
under the act granting substantial relief u/s. 9 to
14. However when the petition by husband for
the relief of divorce is dismissed and the appeal
against the same is also dismissed and no relief
is granted under the aforesaid sections, the order
of dismissal cannot be regarded as passing of a
decree within the meaning of section 25 of the
H. M. Act. In such case this court would have no
jurisdiction to pass an order for maintenance u/s.
25 of the Hindu Marriage Act, 1955. Thus the
order of dismissal of divorce petition filed by
husband cannot be regarded as passing of a
decree within the meaning of section 25 of the
Act and thus in absence of a decree as
contemplated u/s.25, the court cannot exercise
any jurisdiction under this section and therefore
this petition is not maintainable.
20. It is also contention of the Ld. Adv. for the
petitioner that an order for maintenance to the
petitioners has been passed in CRMA No. 362/06
filed by the petitioner u/s.125 of Cr. P. C
wherein the court was pleased to grant
maintenance of Rs.2000 to the petitioner no. 1
and Rs. 1000 to the petitioner no. 2 in total
maintenance of Rs.3000/- per month to the
petitioners. It is contention of the Id. advocate of
the petitioner that the period of more than 10
years has been passed after passing of this order
and looking to the rate of inflation and increase
in the basic necessity of life, the petitioner has
filed the present petition. It is an admitted
position that an order has been passed u/s. 125
of Cr.P.C on 15/07/2008 and the respondent
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husband has been paying Rs. 3000/- per month
to the petitioners. So far as contention of the Id.
advocate for the petitioner as to rise in inflation
and cost of living is concerned civil and criminal
proceedings are different and when separate
provision is available for enhancement of
maintenance she is required to avail the same. In
view of the above discussion, the present petition
is filed by the petitioners u/s.25 of the Hindu
Marriage Act, 1955 and for the reasons discussed
above the petitioner no. 2 is not entitle to any
maintenance u/s. 25 of the Hindu Marriage Act
and so far as the petitioner no. 1 wife is
concerned, the provisions u/s.25 of Hindu
Marriage Act take effect, following the marriage
dissolution or judicial separation and only in that
case, the petitioner is entitled to claim relief
under this Act. In the present case, the divorce
proceedings filed by the respondent husband have
been dismissed and their being no decree within
the meaning of Section 25 of the Hindu Marriage
Act, 1955 the relief prayed for cannot be
granted. In view of the above discussion my
answer to the Issue no.3 is accordingly answered
"In Negative"."
5. For the aforesaid reasons, we find no merit in
the appeal and the same is accordingly dismissed.
(BIREN VAISHNAV, J)
(D. M. DESAI,J)
MANOJ
