Orissa High Court

Smrutimala Dash vs Chinmaya Panda on 16 November, 2023

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                       MATA No.166 of 2019

                       (Though hybrid mode)

  Smrutimala Dash                              ....             Appellant

                                 -Versus-

  Chinmaya Panda                               ....          Respondent


     Advocates appeared in this case :

     For Appellant       : Ms. S. Nayak, Advocate

     For Respondent : Mr. Yuvraj Parekh, Advocate


        CORAM:

        JUSTICE ARINDAM SINHA
        JUSTICE SIBO SANKAR MISHRA

                                  JUDGMENT

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Dates of hearing: 8th and 16th November, 2023 Date of Judgment: 16th November, 2023

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ARINDAM SINHA, J.

1. Appellant is the wife. She is aggrieved by judgment dated 13th November, 2019 made by the family Court in her civil proceeding for dissolution of marriage because there was no order made for permanent alimony.

2. There was brief hearing of the appeal on 18th October, 2023. We reproduce below paragraphs 2 and 3 from our order made that day.

"2. Mr. Parekh, learned advocate appears on behalf of respondent-husband and submits, there was neither any claim nor evidence adduced regarding belated claim of permanent alimony, made before this Court.

3. We have seen the petition filed for divorce by appellant-wife. We reproduce below the prayer.

"Therefore it is prayed that, this Hon'ble court may graciously be pleased to dissolved the marriage by a decree of divorce U/s 13(1) (ia) of the Hindu Marriage Act, 1955. Which was solemnized on 29.11.2017 for benevolent and betterment of the petitioner."

3. Section 25 in Hindu Marriage Act, 1955 admits of the situation appellant-wife is in. The situation is of respondent-

husband opposing the appeal by relying on prayer made in the civil proceeding by appellant-wife, bereft of prayer for permanent alimony. In our view this omission cannot be relied upon to bar her claim by pleading constructive res judicata.

4. It will be relevant for us to reproduce below sub- section (1) in section 25.

"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 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."

(emphasis supplied)

5. The provision reproduced above clearly says that any Court exercising jurisdiction under the Act may, inter alia, 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 (in the application) be paid a gross

sum or monthly or periodical sum as per provision therein.

Sub-sections (2) and (3) provide contingencies for varying the order made or limiting it.

6. Appellant did not make a prayer for permanent alimony in her civil proceeding. Her claim is to be confined to maintenance as raised subsequent to passing of the decree. The provision allows her to apply, as applicant to the Court which passed the decree, for adjudication on what should be the maintenance either by gross sum or monthly or periodical sum, if any, in terms of sub-section (1) in section 25.

7. Ms. Nayak, learned advocate appearing for appellant relies on view taken by a learned single Judge of Bombay High Court in Vijayashree v. Dr. Nishant, reported in 2021 (3) Mh.L.J. 389, paragraph 9. The paragraph is reproduced below.

"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........."

Relying on the extract from judgment of the Madras High Court in Umarani v. D. Vivekannandan, available at 2000 SCC Online Mad 50 she submits, there should not be direction upon her client to go back to the family Court.

8. Necessarily appellant must apply to the Court below. The provision by section 25 is applicable to the Court passing the decree. In appeal from the decree, provisions in order XLI in Code of Civil Procedure, 1908 are applicable. As already noticed, appellant did not pray for permanent alimony by way of maintenance on gross or monthly sum. It is trite that there cannot be laid evidence in the absence of pleadings. From

position of appellant it then becomes a question of whether she will be allowed to produce additional evidence in appeal, if can be raised. Rule 27 in order XLI does not provide for any obligation on respondent in an appeal to also produce additional evidence on order made in the application made by appellant and vice versa. It appears, it is to provide for such a situation that the Legislature felt fit to allow a party in a civil proceeding for dissolution of marriage decreed, to apply subsequently for maintenance either by gross or periodical sum, to be decided on evidence to be appreciated in accordance with the provision.

9. In view of last preceding paragraph we also reproduce below paragraph 22 from Vijayashree (supra).

"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 essential 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."

(emphasis supplied)

10. There is no requirement for interference in the appeal with impugned judgment. Appellant may, however, apply to the Court below on her claim for maintenance. In event she does, said Court is requested to notice respondent-husband and thereupon expeditiously deal with the application.