Jammu & Kashmir High Court
(Through Video Conferencing) vs Ashwani Kumar on 3 February, 2021
Sr. No.101
Approved for reporting
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CJ Court
Case: Letters Patent Appeal (LPA) No. 112 of 2020
(Through Video Conferencing)
Vijay Kumari ...Appellant(s)
Through: Mr. Ashwani Thakur, Advocate
v/s
Ashwani Kumar .... Respondent(s)
Through:
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
ORDER
PANKAJ MITHAL, CJ:
1. The wife Smt. Vijay Kumari has preferred this Letters Patent
Appeal (LPA) against the order dated 27.07.2020 passed by the learned Single
Judge rejecting her application for enhancement of permanent alimony in an
appeal arising out of the judgment and order of the court of first instance in a
divorce case.
2. The matrimonial dispute between the appellant and her husband
Ashwani Kumar came up for consideration in a divorce case. The divorce
petition was dismissed whereupon the respondent husband preferred an appeal
before the High Court. The appeal was allowed and a consent decree of divorce
and a permanent alimony was passed on 27.07.2020 by the learned Single
Judge.
3. The appellant wife was allowed permanent alimony @ Rs. 1000/-
per month.
4. The said judgment and order of the learned Single Judge passed
with the consent of the parties became final and conclusive as no one
challenged it any further, rather the appellant wife started accepting the
alimony so fixed.
5. The appellant wife moved an application before the Additional
District Judge (Matrimonial Cases), Jammu on 28.07.2010, i.e., after ten years
of the decree of divorce, for the enhancement of alimony as envisaged under
Section 25 of the Hindu Marriage Act, 1955/Section 31 of the Jammu and
Kashmir Hindu Marriage Act., 1980.
6. The application was rejected as not maintainable as the decree of
divorce was passed by the High Court. Accordingly, appellant wife preferred
an application under Section 31 of the Jammu and Kashmir Hindu Marriage
Act, 1980/Section 25 of the Hindu Marriage Act, 1955 for the enhancement of
the alimony before the High Court. The said application has been rejected by
the learned Single Judge by the order impugned dated 27.07.2020 holding that
as the permanent alimony was fixed with the consent of the parties, the same is
not liable to be modified and that the provisions of Section 31 (2) of the Jammu
and Kashmir Hindu Marriage Act, 1980 would not come in operation as the
same are applicable only when the permanent alimony is fixed on merits. In
other words, the application was rejected on the ground that it is not
maintainable against the consent order.
7. In this Letters Patent Appeal, two preliminary issues arise,
namely;
i) Whether the appellant wife is entitled to maintain an
application for enhancement of permanent alimony even
though the same has been fixed by consent of the parties;
ii) Whether the Letters Patent Appeal is maintainable against
the order impugned which has been passed by the learned
Single Judge in exercise of his appellate power.
8. There is no dispute to the fact that the decree of divorce passed
vide judgment and order dated 13.10.2000 by the learned Single Judge was
with the consent of both the parties fixing permanent alimony @ Rs. 1000/- per
month. Thus, in the normal circumstances, the said order cannot be challenged
any further either by means of an appeal or revision or otherwise.
Notwithstanding the above, Section 31 (2) of the Jammu and Kashmir Hindu
Marriage Act, 1980 which is in pari materia with Section 25 (2) of Hindu
Marriage Act, 1955 provides that if a court is satisfied that there is a change in
the circumstances of either party at any time after the order of permanent
alimony was made, it may at the instance of the either party, vary, modify or
rescind or any such order in such manner as may be deemed just by the court.
This provision gives recurring cause of action to either of the parties to the
matrimonial dispute to have the order or permanent alimony, varied, modified
or rescinded.
9. The aforesaid provision lays down no rider that such power cannot
be exercised if the order has been passed earlier with the agreement of the
parties.
10. This may be for the reason that the consent given at one point of
time may not remain to be an appropriate one with the passage of time and in
the changed circumstances and therefore parties be left free to have the order
modified or rescinded subject to the satisfaction of the court of the changed
circumstances.
11. In a way, the aforesaid statutory provisions empower the parties to
get the order fixing the permanent alimony revised subsequently if there is a
change in circumstances. The said entitlement of the parties cannot be taken
away merely for the reason that earlier fixation of permanent alimony was by
consent as any agreement or consent would not override or do away with the
statutory provisions rather would be void.
12. In the case of Smt. P. Archana @ Atchamamba vs. Varada Siva
Rama Krishna, AIR 2008 (AP) 216, a similar controversy had come up before
the Division Bench of that High Court and it was held that enhancement of
maintenance under Section 25 (2) of the Hindu Marriage Act is a substantive
right which cannot be denied merely on the ground of earlier agreement of the
parties at the time of passing of the divorce decree. The Division Bench further
relying upon one another decision of the Division Bench went on to hold that
even an agreement by the parties not to seek enhancement in permanent
alimony would not debar them from claiming higher rate of maintenance if
there was change in the circumstances as it would run contrary to the statutory
provisions.
13. A similar view was expressed by the Himachal Pradesh High
Court in the case of Kubja Devi vs. Isher Dass, AIR 2017 HP 21 wherein it
has been held that the maintenance fixed by the order of the court can be
enhanced in changed circumstances under Section 25 (2) of the Hindu
Marriage Act and that the principle of estoppel would not be attracted. It was
also observed that if the maintenance has been fixed by way of settlement in
the compelling circumstances with the passage of time and due to rise in cost
of living if the wife is not finding it sufficient to maintain herself, she is
entitled to seek enhancement.
14. It is useful to quote Lord Atkin who observed "the Wife's right to
future maintenance is a matter of public concern which she cannot barter
away". If the aforesaid principle is followed, it is but obvious that no party to
the matrimonial dispute even by agreement choose to give up their statutory
right for future enhancement/reduction in maintenance and any contract to the
contrary would not be valid in the eye of law.
15. In view of the aforesaid facts and circumstances, we are of the
opinion that despite the fact that in the decree of divorce passed by the learned
Single Judge permanent alimony was fixed with the consent of the parties, the
appellant wife, in accordance with the statutory provisions, is entitled to
maintain the application seeking its enhancement as contemplated by Section
31 (1) of the Jammu and Kashmir Hindu Marriage Act, 1980/Section 25 of the
Hindu Marriage Act, 1955.
16. Now coming to the second aspect of the matter, whether Letters
Patent Appeal would lie against an order passed by the learned Single Judge in
an appeal before it.
17. Shri Ashwani Thakur, learned counsel for the appellant wife
submits that the order impugned is not an order passed in exercise of appellate
jurisdiction but an order on the original application of the petitioner.
18. The submission is bereft of merit inasmuch as the learned Single
Judge had passed the decree of divorce in an appeal arising from a matrimonial
dispute decided by the Additional District Judge (Matrimonial Cases). It is in
the said appeal that he had fixed the permanent alimony with the consent of the
parties. The appellant wife applied for the enhancement of the said permanent
alimony, may be by a separate application, but certainly in the appeal arising
from the matrimonial dispute. An independent application for the above
purpose is otherwise not maintainable.
19. Therefore, the order passed by him which has been impugned
herein is an order passed in exercise of appellate jurisdiction.
20. It is well recognized that appeal is not as a matter of right. It is a
creation of a statute. The right to appeal against the judgment and order of the
Single Judge of the High Court has been conferred by Clause 12 of the Letters
Patent. The exercise of jurisdiction has to be within the scope of the authority
enshrined in the provisions meant for intra court appeal. It is, therefore,
imperative to examine the nature of jurisdiction that has been actually
conferred by the Letters Patent.
21. Clause 12 of the Letters Patent reads as under:-
"And we do further ordain that an appeal shall lie to the said
High Court of judicature from the judgment (not being a
judgment passed in the exercise of appellate jurisdiction in
respect of a decree or order made in the exercise of appellate
jurisdiction by a Court subject to the superintendence of the
said High Court., and not being an order made in the exercise
of revisional jurisdiction, and not being a sentence or order
passed or made in the exercise of the power of superintendence
of one judge of the said High Court or one Judge or any
Division Court and that not withstanding anything herein
before provided an appeal shall lie to the said High Court from
a judgment of "one Judge of the said High Court or one judge
of" any Division Court, a consistently with the provisions of the
civil procedure code, made in the exercise of appellate
jurisdiction in respect of a decree or order made in the exercise
of appellate jurisdiction in respect of a decree or order made in
the exercise of appellate jurisdiction by a court subject to the
superintendence of the said High Court where the judge who
passed the judgment declares that the case is a fit one for
appeal; but that the right of appeal from other judgments of the
judges of the said High Court or of such division court shall be
to us, our Heirs or Successors and be heard by our Board of
Judicial Advisers for report to us."
22. A plain reading of the aforesaid clause would reveal that an appeal
lies to the High Court of judicature from the judgment of one Judge of the said
High Court but not in cases where judgment has been passed in exercise of
appellate jurisdiction.
23. In the case before us, the order impugned is a judgment which has
been passed by the learned Single Judge of this Court in exercise of its
appellate power, may be on an independent application. The said order as such
would be a judgment and order passed in exercise of appellate jurisdiction
against which appeal would not lie under Clause 12 of the Letters Patent.
24. It is important to refer to Section 100-A CPC in this regard. It
reads as under:-
"100-A. No further appeal in certain cases.- Notwithstanding
anything contained in any Letters Patent for any High Court
or in any instrument having the force of law or in any other
law for the time being in force, where any appeal from an
original or appellate decree or order is heard and decided by
a single Judge of a High Court, no further appeal shall lie
from the judgment and decree of such single Judge."
25. A reading of the aforesaid provision would reveal that where an
appeal is decided by a Single Judge of the High Court, further appeal against it
is barred in law.
26. At the cost of repetition, it is again pointed out that the Single
Judge had passed the order of permanent alimony which is sought to be revised
while exercising power of an appeal in respect of an original decree/order and
the order impugned is a consequential order.
27. In view of the above also, no appeal would lie against the order
impugned.
28. In the light of the discussion hereinabove, we are of the opinion
that the present Letters Patent Appeal is not maintainable. It is accordingly
dismissed with liberty to the appellant wife to take recourse to any other
remedy, may be of applying afresh for the enhancement of permanent alimony,
if so advised to her.
29. The appeal is dismissed. No order as to costs.
1.
(RAJNESH OSWAL) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
Jammu
03.02.2021
Tilak
