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.
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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
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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
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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
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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
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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
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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
