Ritu Sharma vs Rakesh Sharma ...
2023 Latest Caselaw 5722 Raj

[2023:RJ-JD:25251-DB]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Civil Misc. Appeal No. 538/2023

Ritu Sharma W/o Shri Rakesh Sharma, Aged About 33 Years, D/o Jagdish Prasad Sharma, Resident Of Krishna Nagar, Near Radhika Hospital, Bhilwara Road, Kankroli, Tehsil And District Rajsamand.

----Appellant Versus Rakesh Sharma S/o Shri Dinesh Chandra Sharma, Resident Of House No. 26, Vishwakarma Nagar, Gariyawas, Udaipur. (Raj.)

----Respondent

For Appellant(s) : Mr. Akshay Nagori.

For Respondent(s) : Mr. Sandeep Saruparia with Mr. Nikhil Ajmera.

HON'BLE MR. JUSTICE ARUN BHANSALI HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI

Order

08/08/2023

1. This appeal is directed against the judgment dated

07.01.2023 passed by the Family Court, Rajsamand, whereby the

application filed by the appellant under Section 25 of the Hindu

Marriage Act, 1955 ('the Act'), has been rejected.

2. The application was filed by the appellant with the

submissions that the respondent - husband of the appellant had

filed an application under Section 13 of the Act seeking dissolution

of marriage at Family Court, Udaipur on 15.01.2015, which came

to be transferred to Family Court, Rajsamand.

3. In the said petition, the appellant filed a counter claim and

sought restitution of conjugal rights under Section 9 of the Act.

The petition filed by the respondent was decided on 12.04.2017,

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wherein the petition seeking dissolution of marriage was dismissed

and the application filed by the appellant seeking restitution of

conjugal rights was allowed.

4. It was, inter-alia, claimed that the appellant was married to

the respondent, they have a son Harshal and the appellant is

living at her parental home at Kankroli since March, 2012. It was

further indicated that despite the decree passed by the Family

Court under Section 9 of the Act on 12.04.2017, the respondent

has not taken her to the matrimonial home and no efforts have

been for restitution of conjugal rights. Further submissions were

made seeking grant of Rs.50,000/- per month as permanent

maintenance and Rs.50,000/- towards cost.

5. The application filed under Section 25 of the Act was

contested by the respondent denying all the averments made in

the application including the allegation pertaining to the income.

6. Based on the pleadings of the parties, the Family Court

framed two issues. On behalf of the appellant, she herself was

examined and produced four documents. As the respondent did

not comply with the order for grant of interim maintenance, his

defense was struck off and his evidence was closed.

7. After hearing the parties, the Family Court analyzed the

evidence of parties and came to the conclusion that as the petition

seeking dissolution of marriage filed by the respondent under

Section 13 of the Act was dismissed on 12.04.2017, in view of the

judgment of Hon'ble Supreme Court in Chand Dhawan v.

Jawaharlal Dhawan : (1993) 3 SCC 406, as only in the case of

decree of divorce, permanent maintenance can be allowed,

dismissed the application filed under Section 25 of the Act.

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8. Learned counsel for the appellant made submissions that the

judgment impugned is based on a total misinterpretation of

judgment in the case of Chand Dhawan (supra), wherein even in a

case where a petition under Section 9 of the Act has been

accepted, the application under Section 25 of the Act would be

maintainable and therefore, the judgment impugned deserves to

be set-aside.

9. Reliance was also placed on Rameshchandra Rampratapji

Daga v. Rameshwari Rameshchandra Daga : (2005)2 SCC 33.

10. Learned counsel for the respondent attempted to make

submissions that the appellant is not entitled to maintain the

application under Section 25 of the Act as the marriage between

the parties subsists and her only remedy is under Section 18 of

the Hindu Adoptions and Maintenance Act, 1956 ('the Act of

1956') and therefore, the Family Court was justified in rejecting

the application. It was prayed that the appeal be dismissed.

11. We have considered the submissions made by learned

counsel for the parties and have perused the material available on

record.

12. The facts are undisputed, wherein the respondent - husband

filed proceedings seeking dissolution of marriage under Section 13

of the Act, wherein by way of counter claim the appellant filed

proceedings under Section 9 of the Act seeking restitution of

conjugal rights. While the petition filed by the respondent -

husband came to be dismissed, the petition filed by the appellant

- wife seeking restitution of conjugal rights came to be decreed by

the Family Court by judgment dated 12.04.2017. It is also not in

dispute that the decree for restitution of conjugal rights remains

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unexecuted as the respondent is not prepared to keep the

appellant and their son with him.

13. The Family Court while considering the application after

analyzing the evidence abruptly after referring the judgment in

the case of Chand Dhawan (supra) rejected the petition seeking

permanent maintenance without even referring to the relevant

part of the judgment.

14. The dismissal of the proceedings under Section 25 of the Act

only on the ground that once the proceedings for dissolution of

marriage have been dismissed, proceedings under Section 25 of

the Act are non-maintainable, is a result of total misreading of

judgment in the case of Chand Dhawan (supra).

15. The relevant part of the judgment, which deals with the

present circumstances, inter-alia, reads as under :-

23. ...... ...... ..... On the other hand, under the Hindu Marriage Act, in contrast, her claim for maintenance pendente lite is durated (sic) on the pendency of a litigation of the kind envisaged under Sections 9 to 14 of the Hindu Marriage Act, and her claim to permanent maintenance or alimony is based on the supposition that either her marital status has been strained or affected by passing a decree for restitution of conjugal rights or judicial separation in favour or against her, or her marriage stands dissolved by a decree of nullity or divorce, with or without her consent. Thus when her marital status is to be affected or disrupted the court does so by passing a decree for or against her. On or at the time of the happening of that event, the court being seisin of the matter, invokes its ancillary or incidental power to grant permanent alimony. Not only that, the court retains the jurisdiction at subsequent stages to fulfil this incidental or ancillary obligation when moved by an application on that behalf by a party entitled to relief. The court further retains the power to chance or alter the order in view of the changed circumstances. Thus the whole exercise is within the gammit (sic gamut) of a diseased or a broken marriage. And in order to avoid conflict of perceptions the legislature while codifying the Hindu Marriage Act preserved the right of permanent maintenance in favour of the husband or the wife, as the case may be, dependent on the court passing a decree of the kind as envisaged under Sections 9 to 14 of the Act.

In other words without the marital status being affected or

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disrupted by the matrimonial court under the Hindu Marriage Act the claim of permanent alimony was not to be valid as ancillary or incidental to such affectation or disruption. The wife's claim to maintenance necessarily has then to be agitated under the Hindu Adoptions and Maintenance Act, 1956 which is a legislative measure later in point of time than the Hindu Marriage Act, 1955, though part of the same socio-legal scheme revolutionizing the law applicable to Hindus."

(emphasis supplied)

16. A bare perusal of the above ratio of the judgment reveals

that if claim to permanent maintenance is based on the

supposition that her marital status has been affected by passing a

decree for restitution of conjugal rights in her favour, the court can

invoke its ancillary or incidental power to grant permanent

maintenance. As in the present case, admittedly, the decree for

restitution of conjugal rights has been passed by the Family Court

in favour of the appellant, she is entitled to maintain proceedings

under Section 25 of the Act.

17. In the case of Rameshchandra Rampratapji Daga (supra),

the Hon'ble Supreme Court laid down that even in a case where

marriage has been declared null and void under Section 11 of the

Act, permanent maintenance can be granted to a spouse as the

words 'any decree' in sub-section (1) of Section 25 includes all

kinds of decrees such as those contemplated under Sections 9, 10,

11, 12 & 13 of the Act.

18. So far as the plea raised by learned counsel for the

respondent that the appellant can only seek maintenance under

Section 18 of the Act of 1956 is concerned, the said argument has

been noticed only for rejection as once the application under

Section 25 is maintainable, the choice lies with the applicant as to

whether she approaches the Court under Section 25 of the Act or

Section 18 of the Act of 1956.

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19. In view of the above discussion, the appeal is allowed. The

judgment and decree dated 07.01.2023 passed by the Family

Court, Rajsamand is quashed and set-aside. The matter is

remanded back to the Family Court, Rajsamand to hear and

decide the petition on merits. As the matter has already remained

pending for over six years with the said Court and the respondent-

husband has not paid any interim maintenance, the Family Court

is directed to decide the matter, after hearing both the parties,

within a period of two months, from the date the parties appear

before the Family Court.

20. The parties are directed to appear before the Family Court, in

the first instance, on 11.09.2023.

(RAJENDRA PRAKASH SONI),J (ARUN BHANSALI),J 113-Rmathur/-

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