CHARANJIT TALWAR, J

( 1 ) THIS appeal under section 28 of the Hindu Marriage Act (hereinafter called the Act ) the appellant. Ram Kishan Singh, has challenged the judgment and decree passed by Shri R. D. Aggarwal, Additional District Judge, Delhi, on 4th May, 1981, whereby he granted the application, of the respondent, Savitri Devi, for permanent alimony under section 25 of the Act.

( 2 ) THE facts leading to the filing of the petition by the wife under section 25 of the Act briefly are that a petition for divorce under section 13 of the Act was filed by the husband against the wife on 20th August 1977, on the ground that wife had deserted him for a continuous period of not less than two years. A decree in his favour under section 13 (1) (ib) of the Act was granted on 9th May, 1979.

( 3 ) IT is relevant to note that Smt. Savitri Devi had filed written statement contesting the petition under section 13 of the Act but later on absented herself and as such was proceeded ex parte. Another admitted fact is that a child was born to Smt. Savitri Devi during the pendency of the petition on 15th December, 1977. An application for setting aside the ex parte decree granted in favour of the husband was moved on 8th August, 1979. This application was dismissed on 11th October. 1979. Another application under Order 9 Rule 13 of the Code of Civil Procedure was made by the wife seeking restoration of the earlier application. That application was also dismissed for non-prosecution. The result was that the decree of divorce granted in favour of the husband-appellant herein became final.

( 4 ) IN the present petition for permanent alimony under section 25 of the Act the case made out was that the wife had no movable or immovable property and had no source of income. And that she had to maintain herself and the minor child. She has demanded Rs. 300 as permanent alimony Rs. 100 for the child and Rs. 200 for herself. It was averred that the husband owns immovable property worth about Rs. 15,000 ; that he had valuables and articles worth more than Rs. 10,000 besides jewellery etc. and that he was employed in the Ministry of Finance and was getting Rs. 550 as total emolument per month. "

( 5 ) THE husband contested this petition. His case was that the wife was not interested to seek any maintenance; it was her brother who had coaxed her into filing this petition although the petition for divorce had been deliberately not defended. On merits his case was that on the wife s own showing she has been unchaste as she had given birth to a child who was apparently illigitimate as the parties had separated and the child was born after atleast two years of the separation. Further, the plea of the husband was that after the decree of divorce had become final he re-married on 31st July, 1979 and a son was born from that wedlock in September, 1981; that with the emoluments which he is getting he is hardly able to meet his day to day expenses. Therefore, as he has not enough income and the wife being a partner with her father in the family business which earns them about Rs. 2000 per month, she was not entitled to permanent alimony.

( 6 ) ON the pleadings of the parties, the following issues were framed : (1) Is the petitioner employed anywhere and what is her income ? OPR. (2) Had the respondent no access to the petitioner since 31-7-1974 and as such the child born to the petitioner on 15-12-1977 is an illegitimate one ? OPR. (3) To how much amount, if any, the petitioner is entitled by way of permanent alimony from the respondent ? OPP.

( 7 ) ON issue No. 1 the learned Judge noticed that this was not pressed on behalf of the husband at the time of arguments. Even otherwise on appraisal of the evidence it was observed that the wife had no income of her own. Accordingly this issue was decided against the husband.

( 8 ) ISSUE No. 2 was; also decided against the husband. It has been held by the learned Additional District Judge that the husband was not able to prove

Click Here to Read the rest of this document