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2008 Supreme(AP) 1002
High Court of Andhra Pradesh
THE HONOURABLE MR. JUSTICE B. PRAKASH RAO & THE HONOURABLE MR. JUSTICE VILAS V. AFZULPURKAR
Polavarapu Hanumantha Rao - Appellant
Versus
Polavarapu Siva Parvathi & Others – Respondents
Civil Miscellaneous Appeal No.2733 of 1998 and Civil Revision Petition No.3140 of 1999
Decided on : 25-11-2008
For the Appellant:M.V.S. Suresh Kumar, M.R.S. Srinivas, Advocates. For the Respondents:K. Ananda Rao, Advocate.
Headnote:
Hindu Marriage Act, 1955 – Sections 25, 26 – Hindu Adoptions and Maintenance Act – Section 18(1) –Permanent Alimony –First respondent-wife and two children-respondents 2 and 3 filed for grant of maintenance of Rs.4,500/- per month i.e., Rs.1500/- to each of the respondents. As stated above, while the main petition for divorce was dismissed by the trial Court, the said was allowed by granting maintenance of Rs.800/- per month to the first respondent-wife, and Rs.500/- per month to the respondent No.2 and Rs.300/- per moth to the respondent No.3-daughter with effect from the date of order of the court below – While passing the aforesaid order, the learned counsel appearing for the respondents 1 to 3 before the court below had relied upon a decision of this Court reported in Silla Jagannadha Prasad @ Ramu Vs. Smt. Silla Lalitha Kumari and following the said judgment, the trial court granted the maintenance as permanent alimony – Aforesaid order, as stated above, is subject matter by the appellant-husband – Held, Court no hesitation in coming to the view that when by court intervention under the Hindu Marriage Act, affectation or disruption to the marital status has come by, at that juncture, while passing the decree, it undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at that time – It also retains the power subsequently to be invoked on application by a party entitled to relief – And such order, in all events, remains within the jurisdiction of that court to be altered or modified as future situations may warrant – In contrast, without affectation or disruption of the marital status, a Hindu wife sustaining that status can live in separation from her husband, and whether she is living in that state or not, her claim to maintenance stands preserved in codification – Court is not at liberty to grant relief of maintenance simpliciter obtainable under one Act in proceedings under the other – As is evident, both the statutes are codified as such and are clear on their subjects and by liberality of interpretation interchangeability cannot be permitted so as to destroy the distinction on the subject of maintenance –Revision Petition Disposed of
Common Judgment: (Vilas V. Afzulpurkar, J.)
1. 1. Theappellant in CMA No. 2733 of 1998 is the husband. His wife and children are petitioners in CRP No. 3140 of 1999. Both the matters are disposed of by this common judgment.
2. 2. While the appeal is directed against the order dated 28.8.1996 passed by the Court in IA No. 1926 of 1995 granting maintenance to the wife and children, the revision petition is filed against the order dated 8.4.1999 dismissing EP No. 39 of 1997 filed by the wife and children for arrest and detention of the husband in civil prison for non-compliance with the order in IA No. 1926 of 1995. There is no challenge to the dismissal of the OP, which was passed along with the order in IA No. 1926 of 1995. Since the order in IA No. 1926 of 1995 is challenged by the husband in CMA No. 2733 of 1998, the decision in that appeal would govern the decision in the revision.
3. For better appreciation, the facts with regard to CMA No. 2733 of 1998 are as follows.
The appellant-husband filed OP No. 132 of 1984 on the allegation that the appellant and the first respondent were married in March, 1979 and the first respondent-wife lived with the appellant for one month. It is alleged that the mother-in-law of the appellant wanted the appellant to shift the family to her place where she was carrying on rice business which the appellant refused and thereafter the mother-in-law did not send the first respondent to the appellant. Several efforts of mediation among the parties failed and as such the appellant alleged that the first respondent has deserted him from December, 1979 for no fault of his. He gave a legal notice dated 27.6.1981 and filed the OP No. 145 of 1983. However the said OP was dismissed, for non-payment of process fee on 7.4.1983 and thereupon the present OP was filed. On contest, however by the first respondent-wife, the trial court came to the conclusion that the appellant failed to prove that there was any desertion by the wife without reasonable cause and dismissed the OP for divorce. The said order is not challenged by the appellant and has attained finality.
3. 4. The first respondent-wife and two children-respondents 2 and 3 filed IA No. 1926 of 1995 in the said OP No. 132 of 1984 for grant of maintenance of Rs.4,500/- per month i.e., Rs.1500/- to each of the respondents under Sections 25 and 26 of the Hindu Marriage Act, 1955 (for short "the Act"). As stated above, while the main petition for divorce was dismissed by the trial Court, the said IA No. 1926 of 1995 was allowed by granting maintenance of Rs.800/- per month to the first respondent-wife, and Rs.500/- per month to the respondent No.2 and Rs.300/- per moth to the respondent No.3-daughter with effect from the date of order of the court below i.e., 28.8.1996. While passing the aforesaid order in IA No. 1926 of 1995, the learned counsel appearing for the respondents 1 to 3 before the court below had relied upon a decision of this Court reported in Silla Jagannadha Prasad @ Ramu Vs. Smt. Silla Lalitha Kumari (1987 (1) ALT 631 = AIR 1989 AP 8) and following the said judgment, the trial court granted the maintenance as permanent alimony. The aforesaid order, as stated above, is subject matter of CMA No. 2733 of 1998 by the appellant-husband.
4. 5. We have heard learned counsel for either side. The primary contention of the learned counsel for the appellant is that the OP having been dismissed, the court below had no jurisdiction to pass an order for permanent alimony under Section 25 of the Act.
5. 6. The point for consideration is, therefore, whether the matrimonial court is justified in passing an order granting permanent alimony, while the substantive petition for divorce was rejected?
6. 7. Thelegal position in this case was examined by this Court in Silla Jagannadha Prasad @ Ramu Vs. Smt. Silla Lalitha Kumari (1st supra) and it was undoubtedly held by this court by interpreting the word 'any decree' used under Section 25 of t
