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1975 Supreme(Cal) 45
High Court Of Calcutta
K.J.Sengupta & Sharma, JJ.
Jagadish Prasad Tulshan
Vs.
Manjula Tulshan
Decided On : Feb 13, 1975
Advocate Appeared:
Bankim Dutt, Bhaskar Sen, Bipankar Ghosh, S.B.Bakshi
Section 23 of the Hindu Marriage Act, 1955 does not control Section 25, which deals with permanent alimony. The court has the discretion to consider the conduct of the parties in determining the amount of alimony.
Headnote:
HINDU MARRIAGE ACT, 1955 - SECTION 23, 25 - ALIMONY - CONDUCT OF PARTIES - INTERPRETATION - COURT'S DISCRETION - SUBSTANTIAL QUESTION OF LAW.
Fact of the Case:
Petitioner-husband sought leave to appeal to the Supreme Court against the High Court's order reducing the alimony payable to his wife from Rs. 500 to Rs. 400 per month. The wife had filed for permanent alimony under Section 25 of the Hindu Marriage Act, 1955, after obtaining a divorce on the grounds of cruelty. The petitioner argued that the High Court erred in not considering Section 23 of the Act, which debars a person from taking advantage of their own wrong, and that the wife's conduct disentitled her to alimony.
Finding of the Court:
The High Court held that Section 23 of the Act does not control Section 25 and that the court has the discretion to grant alimony considering the conduct of the parties. The court found that the wife's conduct, even if proven, would not disentitle her to alimony. The court also rejected the petitioner's argument that the presumption of innocence applies in alimony proceedings, stating that it is a question of procedure and not a provision of law.
Issues: 1. Whether Section 23 of the Hindu Marriage Act, 1955 controls Section 25, which deals with permanent alimony. 2. Whether the court can consider the conduct of the parties in determining the amount of alimony. 3. Whether the presumption of innocence applies in alimony proceedings.
Ratio Decidendi: 1. Section 23 of the Hindu Marriage Act, 1955 regulates the grant of relief in certain proceedings under the Act, including restitution of conjugal rights, judicial separation, declaration of nullity of marriage, annulment of voidable marriage, and divorce. It does not control Section 25, which is a self-contained provision dealing with permanent alimony. 2. The court has the discretion to consider the conduct of the parties in determining the amount of alimony. The conduct of the wife, even if proven, may not disentitle her to alimony. 3. The presumption of innocence does not apply in alimony proceedings. It is a question of procedure indicating how the evidence is to be analyzed.
Final Decision: The High Court refused the petitioner's application for leave to appeal to the Supreme Court, holding that the case involved no substantial question of law of general importance.
1. THIS is an application under Article 133 of the Constitution of India for grant of leave to appeal to the Supreme Court from the judgment and order dated 14th December, 1973 passed in F. M. A. No. 182 of 1972 fixing alimony of Rs. 400/- per month to be paid by the petitioner to the respondent.
2. THE petitioner is the husband. He married the respondent on the 1st december, 1964 under the Hindu rites at 12/1, Alipore Park Road, P. S. Alipore within the District of 24-Parganas. Within a few months the petitioner filed a petition for judicial separation against the respondent wife in the court of Alipore on the allegation of cruelty. The nature of cruelty as alleged against the wife respondent may shortly be stated like this : (i) That she made wild allegation against the petitioner as the murderer of his brother Late Bimal kumar Tulshan. (ii) That she refused to have sexual intercourse with the petitioner without applying contraceptives, or in other words, he alleged that he had no sexual satisfaction with his wife. (iii) That she was a woman of nagging habits. These are some of the allegations which were made by the petitioner against the wife. On the said allegation the petition for judicial separation was filed in the Alipore Court.
The wife entered appearance and filed her written statement denying all the allegations of cruelty and also desertion leveled against her. Counter allegation was made by the wife against the husband that he was cruel in his behavior with her which had a adverse effect on her health. During the pendency of the said petition for judicial separation the wife respondent prayed for alimony pendent lite which was fixed by the Additional district Judge at a sum of Rs. 350/-, which was, however, raised to the sum of Rs. 500/- on appeal being preferred by the wife. The court ultimately. passed an exparte decree for judicial separation on the 22nd February, 1967. As there was no reconciliation or resumption of co-habitation between the parties, a decree for divorce was passed under section 13 of the Hindu marriage Act.
3. AFTER the said first decree was passed the respondent wife filed an application before the 5th Court, Add dist. Judge, Alipore, under section 25 of the Hindu Marriage Act, 1955 and prayed for the grant of permanent alimony at a sum of Rs. 1,500/ -. She alleged therein that she had no independent income of her own and that she was living on the mercy of her near relatives. Her allegation further was that the petitioner was a man of substance and was carrying on business worth more than 50 lacs of rupees yielding monthly income between Rs. 15,000. 00 to Rs. 20,000. 00 -. The learned Additional District Judge considering the materials on record, by his order dated 22nd December, 1971 directed the petitioner to pay an alimony at the rate of Rs. 500/- per month to the wife for her maintenance, so long she remains unmarried. Against the said order and judgment the petitioner preferred an appeal in this court which was heard by Sinha, J. and myself. Considering the materials on record and after hearing the contentions of both the parties this Court reduced the alimony from Rs. 500/- per month to Rs. 400/- per month. Against the said order the petitioner intends to prefer an appeal to the Supreme Court and as such this application for leave under Article 133 of the Constitution of India has been filed.
4. MR. Ghosh, learned Counsel for the petitioner submits that in the instant case there is a substantial question of law of general importance. According to him, this court while granting alimony, overlooked to consider the provision of section 23 which debars a person to take advantage of his or her wrong. Our attention was drawn to the provisions of section 23 of the said section is quoted here which is as follows : -
"section 23 (1) : in any proceeding under this Act, whether defended or not, if the court is satisfied that- (a) any of the grounds for granting relief exists and the petiti
