Madhya Pradesh High Court
Kuldeep Rai vs Smt. Rita W/O Kuldeep Rai on 7 February, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 7 th OF FEBRUARY, 2024
FIRST APPEAL No. 145 of 2023
BETWEEN:-
KULDEEP RAI S/O SHRI RAMGOPAL JI RAI, AGED
ABOUT 39 YEARS, OCCUPATION: PRIVATE SERVICE A
5/10 KSHIPRA VIHAR BANK OF INDIA KE PAAS DEWAS
ROAD DISTRICT UJJAIN (MADHYA PRADESH)
.....APPELLANT
(SHRI MUKESH RAV JADHAV, ADVOCATE)
AND
SMT. RITA W/O KULDEEP RAI D/O LATE RADHESHYAM,
AGED ABOUT 46 YEARS, OCCUPATION: HOUSEHOLD F-
15 KAVAR COLONY GURJAR HOSPITAL KE PAAS
BADWAH DISTRICT KHARGONE (MADHYA PRADESH)
.....RESPONDENT
(SHRI SHYAM DHAR SHUKLA, ADVOCATE)
This appeal coming on for order this day, Justice Devnarayan Mishra
passed the following:
JUDGEMENT
This first appeal under Section 19 of the Family Courts Act, 1984 has
been preferred by the appellant/husband, being partially aggrieved by the
judgement and decree dated 14.12.2022 passed by the Principal Judge, Family
Court, Ujjain in RCSHM No.512/2018, by which u/S 25 of the Hindu Marriage
Act, appellant/husband has been directed to pay Rs.4.00 lacs to the
respondent/wife as a permanent alimony.
2. In nutshell, the case of the appellant/husband before the Trial Court
was that the respondent/wife is his legal wedded wife and their marriage was
solemnized on 05.07.2011, as per Hindu Rites and Rituals in Ujjain city. The
respondent resided with the appellant for certain days and after that, she was
making quarrel and on the ground of cruelty and desertion, appellant has filed a
petition u/S 13 of the HMA for dissolution of marriage.
3. The respondent/wife has admitted the matrimonial relations but denied
that she has treated her husband with cruelty or deserted her husband and
pleaded that due to ill treatment of her husband, she is residing at her parents
house.
4. After framing the issues, learned Family Court after trial passed the
impugned judgement and decree by which marriage of the parties was dissolved
and the appellant was directed to pay his wife Rs.4.00 lacs as permanent
alimony.
5. The appellant/husband has preferred this first appeal only on the part
of the decree by which alimony has been granted in favour of the
respondent/wife.
6. Learned counsel for the appellant has submitted that the judgement
and decree passed by the Family Court is contrary to the provisions of law.
Learned Trial Court has not rightly appreciated the facts and law. The
respondent/wife has not filed any application u/S 25 of the HMA and has not
demanded permanent alimony and inspite of that, learned Trial Court has
granted the said relief.
7. Further argued that from perusal of the record of the Trial Court, it is
clear that the respondent/wife is owner of the agricultural land. The respondent
has not filed any documents regarding income of the appellant or that appellant
has any movable or immovable property. Appellant was employed in a private
job and he has no regular source of income. He is handicapped and his mother
is also dependent upon him. Appellant is not in a position to pay the
maintenance to the respondent and lastly argued that maintaining the decree of
dissolution of marriage, the decree regarding payment of permanent alimony be
quashed.
8. Learned counsel for the respondent has supported the judgement and
decree passed by the Trial Court and has stated that learned Principal Judge,
Family Court has not committed any illegality and the appellant want to deny his
legal and pious liability to maintain his wife. No formal application is required
hence, the appeal be dismissed.
9. We have heard learned counsel for the parties and perused the record
of the Trial Court.
10. It is an admitted fact that in this case, the respondent has not filed
any application u/S 25 of the HMA before the Trial Court for permanent
alimony and it is also clear from the record that learned Trial Court has not
framed any issue in respect of that.
11. We have also gone through the written statement filed by the
respondent. In that also, she has not demanded any alimony. Thus, by
separate application or written statement, the respondent/wife has not claimed
or applied for permanent alimony.
12. On this point, whether without filing a formal application u/S 25 of
the HMA, husband can be directed to pay the alimony? In this regard, the
High Court of Madras in the case of Umarani Vs. D. Vivekannandan, 2000
(II) CTC 449, in paragraph-10 of the judgement has held that "the Act also
does not say that there should be a written application. It only says that an
application made to it. It can also be on the basis of oral application." Thus,
held that u/S 25 of the HMA, no formal application is required.
13. The High Court of Bombay in the case of Vijayashree D/o Ganesh
Ingle Vs. Dr. Nishant Arvind Kale, 2021 (3) Mh.L.J. 389 , in paragraphs-8
to 12 of the judgement has held as under :-
"8. With regard to question under consideration before this court,
various other High Courts including this High Court have held
that the word 'application' as referred to in Section 25 of the Act
i.e. 'on application made to it' does not specify as to whether it is
oral application or application in writing. It is also held that
broader view of Section 25 of the Act is to be taken considering the
object and purpose for inclusion of this provision in the Act.
9. The Madras High Court in the case of Umarani Vs. D.
Vivekannandan reported in 2000 SCC Online Mad 50 held that
there is no need of written application under Section 25 of the
Hindu Marriage Act, 1955 and permanent alimony and
maintenance can be granted on the basis of oral application. The
relevant para No. 10 in this judgment reads thus :
"10. It is true that Section 25 of the Act contemplates an
application for the said purpose. When the lower court has
not disposed of Section 24 application in time and has
disposed of along with the main application, it should have
disposed of the application under Section 25 also. Therefore,
one more litigation could be avoided and on the basis of very
same order, the maintenance could be provided for the wife
and child. From the conduct of the respondent, it is clear that
he will not pay the maintenance which is legally due to the
petitioner. Under these circumstances, asking the petitioner to
file another application under Section 25 or asking to file a
separate suit and again seeking indulgence of the Court
below will be harsh. The Act also does not say that there
should a written application. It only says that an application
made to it. It can also be on the basis of oral
application........."
10. The Madhya Pradesh High Court in the case of Surajmal
Ramchandra Khati Vs. Rukminibai d/o Prabhulal reported in
1999 SCC Online MP 87 held that merely because wife had not
presented a separate application praying for grant of permanent
alimony, it cannot be said that she is not entitled to the same. It is
further observed that the provisions of Section 25 of the Act have
been introduced for the purpose of protecting the interest of such
spouse against whom the court has passed the decree.
11. This Court in the case of Sadanand Sahadev Rawool Vs.
Sulochana Sadanand Rawool reported in 1989 SCC Online Bom
5 held that Section 25 of the Act when it speaks of an application
does not specify that the same has to be in writing. An application
can be in writing as also by word of mouth. Although this
judgment is overruled by the Apex Court on the point of entitlement
of the spouse to claim permanent alimony and maintenance even if
the the court dismisses the petition and does not pass any decree as
contemplated in Section 25 of the Act.
12. The Division Bench of the Punjab and Haryana High Court in
the case of Mukesh Kumar Vs. Sunita in FAO-M-46 OF 2010
while relying on the judgment in the case of Sadanand Rawool
(supra) and Surajmal (supra) held that the approach to be
adopted in matrimonial cases has to be practical and not based on
mere technicalities. The expression "on application made to it"
occurring in Section 25 of the Act should not be construed
narrowly but keeping in view the intent of the legislature in
enacting this provision. The purpose behind this provision appears
to be to safeguard the interest of the spouse against whom the
decree had been passed. It is further held that grant of permanent
alimony and maintenance under Section 25 of the Act is sine-qua-
non if the prayer made in that regard whether in writing or orally
and there can either be a separate written application claiming
permanent alimony and maintenance under Section 25 of the Act
or in the written statement or even by oral prayer."
14. Our own High Court in the case of Surajmal Ramchandra Khati
Vs. Rukminibai, 1999 SC OnLine MP 87, in paragraphs 6 to 8 of the
judgement has held as under:-
"6. Shri Ukas further placed reliance on the provisions of
Section 25 of the Hindu Marriage Act 1955 (hereinafter
referred to as Act for convenience) wherein it has been
provided that--
"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."
7. While considering provisions of section 25 of the Act,
provisions of section 23(B) cannot be ignored which provides
that--
"In any proceeding for divorce or judicial separation or
restitution of conjugal rights, the respondent may not only
oppose the relief sought on the ground of petitioner's
adultery, cruelty or desertion, but also make a counter-
claim for any relief under this Act on that ground; and if
the petitioner's adultery, cruelty or desertion is proved,
the Court may give to the respondent any relief under this
Act to which he or she would have been entitled if he or
she had presented a petition seeking such relief on that
ground."
It means that in absence the petition filed by other spouse who
has been contesting said litigation as respondent, is entitled to
claim any relief under the provisions of the Act by making
counter claim on the ground of petitioner's adultery, cruelty or
desertion. And such spouse would be entitled to get such relief
if he proves the said fact. That spouse would be entitled to get
said relief from the Court as if the said spouse had presented a
petition seeking such relief on that ground. Thus, keeping in
view the spirit of provisions of section 23(B), the spirit behind
the enactment will have to be seen. The Act has adopted a
broader approach while dealing with matrimonial cases.
Therefore, the word 'on application made to it' used in sub-
section (1) of section 25 will have to be interpreted in a
broader view. This word 'on application made to it' should not
be construed in a strict sense. It does not mean always that
such spouse is required to present a separate application for
making a prayer for permanent alimony. After all, provisions
of section 25 of the Act according to me have been introduced
in the Act for the purpose of protecting the interest of such
spouse against whom the Court has passed the decree. When
such spouse happens to be a wife, the society and law would
not afford to see such spouse seeking sanctuary on the streets
at the stake of losing her soul and virtues. When the decree of
divorce is passed, the law would be definitely interested in
seeing that some arrangement has been made for the purpose
of enabling such spouse wife to have some money with her
which would enable her to live safely and with dignity of
womanhood. Such provisions would be made if she is left to
maintain herself with a child begotten out of the wedlock
which has been dissolved by decree of divorce dissolving such
marriage. It would create difficult situation for such discarded
wives and children increasing the possibility of vagaries and
unchastity. Therefore, it will have to be seen whether a prayer
has been made by such spouse any way in the written
statement or by separate application. Keeping in view the
spirit of the enactment of the Act, it would be safe if such a
prayer is made in the written statement.
8. In the present matter in para 2 at page No. 4 of the written
statement, the respondent has made a prayer to the Court to
grant Rs. 3000/- per month to her from the appellant as
permanent alimony. In my view this is sufficient. The divorced
wife cannot be thrown on streets after dissolution of the
marriage by a decree of divorce without granting permanent
alimony to her if such a prayer has been made by her in her
written statement, when the Act has adopted broader view as
indicated under section 23A of the Act."
15. In the case of Abhishek Parashar Vs. Neha Parashar, 2023 (1)
MPLJ 648, the Division Bench of this Court, in paragraphs-42 to 47 of the
judgement has held as under:-
"42. Learned counsel for the wife by placing reliance on the
Division Bench Judgments of this Court in Rituraj Singh
(supra) and Dharmendra Tiwari (supra) contended that no
express application is required to be filed under section 25
of the Hindu Marriage Act and this Court without such
application can decide the question of alimony. It is
noteworthy that SLP filed against the judgment of this
Court in Rituraj Singh (supra) was dismissed (SLP No.
27693 of 2019) on 3-2-2022. However, a plain reading of
this order makes it clear that:--
(i) Leave was not granted and SLP was not converted
into a civil appeal. Thus, in the light of judgment of
Supreme Court in (2000) 6 SCC 359 : 2000 MP LJ
OnLine (SC) 2, Kunhayammed v. State of Kerala, it
cannot be presumed that judgment of this Court in
Rituraj Singh got stamp of approval from the Supreme
Court and doctrine of merger has played its role. (ii)
The Apex Court while deciding the SLP of Rituraj
Singh has not specifically dealt with and examined
section 25 of the Hindu Marriage Act.
43. The legal journey shows that way back in the case of
Jitbandhan (supra) Justice G.P. Singh considered the
language used in section 25 of the Act and came to hold
that said provision does not permit the Court to decide the
question of alimony in absence of an express application.
The ratio of this judgment was followed by Division Bench
in Chhaya Kshatriya (supra). In Chhaya Kshatriya
(supra), this Division Bench also considered the previous
judgments of Bhikalal and Meerabai (supra). This principle
was followed by Single Bench in Mahesh Prasad (supra).
Lastly, another Division Bench in Manoj (supra) (decided
on 23-10-2012) poignantly held that without an
application made to the Court under section 25 of the
Hindu Marriage Act, the Family Court cannot decide the
aspect of alimony.
44. The aforesaid journey makes it clear that view taken by
Justice G.P. Singh way back in the year 1982 in the case of
Jitbandhan (supra) was consistently followed by various
Division Benches. The cleavage of opinion is because of
subsequent Division Bench judgments in Rituraj Singh and
Dharmendra Tiwari (supra) wherein the subsequent
Division Benches opined that in order to claim alimony, it is
not necessary to prefer a written application. A careful
reading of judgment of Rituraj Singh (supra) shows that the
Division Bench has not reproduced and considered section
25 of H.M. Act. Section 25(1) of H.M. Act reads as under:--
"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 55 (***) 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 56, (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. (Emphasis Supplied)
45. In both the subsequent judgments i.e. Rituraj Singh
(supra) and Dharmendra Tiwari (supra), the Division
Benches have not considered the previous judgments of this
Court passed in Jitbandhan, Chhaya Kshatriya, Bhikalal,
Meerabai, Mahesh Prasad and Manoj v. Raksha (supra).
Thus, ancillary question is, out of the two views, which
view/judgment will be binding on us. In our view, the
curtains on this aspect are drawn by a Special Bench (five
Judges) of this Court in the case of Jabalpur Bus Operators
Association v. State of M.P., reported in (2003) 1 MP LJ
513 wherein it is held as under:--
",................ Similarly, Division Bench is bound by
the judgment of earlier Division Bench. In case, it does
not agree with the view of the earlier, Division Bench,
it should refer the matter to larger Bench. In case of
conflict between judgments of two Division Benches of
equal strength, the decision of earlier Division Bench
shall be followed except when it is explained by the
latter Division Bench in which case the decision of
latter Division Bench shall be binding. The decision of
larger Bench is binding on smaller Benches."
(Emphasis Supplied)
46. We also find substance in the argument of Shri Shroti
based on the judgment of Supreme Court in the case of
State of Bihar v. Kalika Kuer, (2003) 5 SCC 448 : 2003
MP LJ Online (SC) 45 wherein it was held that if previous
binding judgment is not considered by the subsequent
Bench, the judgment of subsequent Bench is per incuriam.
Thus, it can be safely held that in absence of application
preferred under section 25 of H.M. Act, no directions can be
issued by this Court for grant of permanent alimony. Apart
from this, for deciding the aspect of permanent alimony
various factual aspects regarding income, expenditure etc.
of the parties are required to be taken into account by the
Court. In Rajnesh v. Neha, (2021) 2 SCC 324 : (2021) 3
MP LJ (SC) 22 : (2021) 1 MP LJ (Cri) (SC) 187, the Apex
Court held as under:
"73. Parties may lead oral and documentary evidence
with respect to income, expenditure, standard of living,
etc. before the Court concerned, for fixing the
permanent alimony payable to the spouse." (Emphasis
Supplied)
47. So far judgment of Apex Court in Ramesh Chand
Rampratapji (supra) in concerned, it is noteworthy that
Court focussed and interpreted the expression 'at the time of
passing any decree' mentioned in section 25(1) of the H.M.
Act. The observation of Supreme Court in para-17 of said
judgment about 'ancillary' and 'incidental' power of the
Court, in our humble view, is not the ratio or principle laid
down. This is trite that precedent is what is actually decided
by the Apex Court and not what is logically flowing from it.
[See : State of Orissa v. Sudhansu Sekhar Misra, (1968) 2
SCR 154, Regional Manager v. Pawan Kumar Dubey,
(1976) 3 SCC 334, Ambica Quarry Works v. State of
Gujarat, (1987) 1 SCC 213, Commr. of Customs (Port) v.
Toyota Kirloskar Motor (P) Ltd., (2007) 5 SCC 371].
Hence, this judgment is of no assistance to respondent-wife."
16. Thus, from the judgement of this Court, it is clear that atleast an
application demanding permanent alimony is required, that may be either in a
written statement or by a separate application.
17. Thus, without demanding permanent alimony in the written statement
or by a separate application, learned Trial Court would not have granted
permanent alimony to the respondent/wife.
18. From other point of view, the judgement of the Apex Court in the
case of Vinny Parmar Vs. Paramvir Parmar, AIR 2011 SC 2748, has
considered in Section 25 that,
"while considering the claim of permanent alimony and
maintenance of either spouse, the respondent's 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 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."
19. On this point, we have gone through the record of the Trial Court.
Learned Trial Court has not framed any issue and no evidence was adduced on
this point, no document was filed by the respondent/wife regarding the income
and occupation of the appellant/husband. He was not cross-examined
regarding his income and was not suggested that he had movable or immovable
property by which he can pay regular maintenance to his wife. In the same way,
the respondent/wife - Rita (DW-1) in her examination-in-chief has not stated
regarding movable or immovable property of her husband and she has not filed
any document regarding that. She has also not stated what her husband is
doing. Thus, no fact was brought on record to prove the income and financial
capacity of her husband.
20. Thus, there was no material before the Trial Court regarding the
income and ascertain liabilities of the appellant/husband. Learned Family Court
in paragraph-49 of its judgement has held that the respondent has not filed any
application u/S 25 of the HMA but she has filed an application u/S 24 of the
HMA and on that basis, without discussing the income and liability and without
ascertaining the employment and financial status of the appellant, has ordered
Rs.4.00 lacs permanent alimony in favour of the respondent.
21. From the above discussion, this part of the judgement and decree
cannot be sustained. The respondent has not filed any cross-appeal as separate
appeal regarding dissolution of marriage hence, the decree of dissolution of
marriage is affirmed by this Court, but part of the decree by which the appellant
has been ordered to pay an amount of Rs.4.00 lacs as permanent alimony to the
respondent/wife is hereby quashed. Thus, part (B) of the decree is quashed
and modified accordingly. The decree be drawn accordingly.
22. With the copy of this judgement, the record of the Trial Court be
returned back. The parties shall bear their own cost.
Certified copy, as per Rules.
(S. A. DHARMADHIKARI) (DEVNARAYAN MISHRA)
JUDGE JUDGE
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