Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Guj) 1241

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ILESH J. VORA, J.
UMARSHI KAYABHAI CHANDE - Appellant
Versus
VANITABEN UMARSHI CHANDE – Respondent
R/Second Appeal No. 279 Of 2009
Decided On : 29-11-2023

Advocates Appeared:
For the Appellant : Mr Kirtidev R. Dave, Mr Rahul K. Dave.
For the Respondent: MR BY Mankad.

Permanent alimony can be awarded even if the main suit lacks a decree, as courts have jurisdiction to grant maintenance based on counterclaims in spousal disputes.

Headnote:(A) Hindu Marriage Act, 1955 - Sections 9, 23A, 25 - Second appeal against judgment and decree for maintenance - Appellant-husband's suit for restitution of conjugal rights was dismissed - The wife made a counter claim for permanent alimony which was allowed - Courts below upheld the wife's claim for alimony despite appellant's argument that no decree was passed in the main suit - The term 'decree' includes both dismissals and grants of relief - Courts have jurisdiction to award maintenance irrespective of the main suit's outcome. (Paras 2, 10, 12, 13)

(B) Legal interpretation - The provisions of the Hindu Marriage Act allow counter claims in spousal disputes, ensuring justice for disadvantaged parties. (Paras 11, 12).

Facts of the case:
The appellant, having lost in both preceding courts, sought recourse after his suit for restitution of conjugal rights was withdrawn, while the respondent claimed permanent alimony, resulting in partial maintenance for children and no maintenance for the wife.

Findings of Court:
The appeal was dismissed, affirming the lower courts' findings that maintenance could be awarded even when the main relief was denied.

Issues: Key questions included whether permanent alimony could be granted without a decree from the main suit and if the courts erred in their judgment.

Ratio Decidendi: Courts can award permanent alimony despite the dismissal of the main petition, based on the legislative intent of the Hindu Marriage Act allowing for counter claims.

Result: Second appeal dismissed.

Table of Content
1. case background and parties involved. (Para 1 , 2)
2. arguments related to permanent alimony. (Para 3 , 5 , 6 , 10)
3. court observations on the lower court decisions. (Para 4 , 7 , 9)
4. counterclaims for alimony permissible even without main decree. (Para 8)
5. interpretation of sections 23a and 25 of the act. (Para 11 , 12)
6. final dismissal of the second appeal. (Para 13)

JUDGMENT :

(Ilesh J. Vora, J.)

1. This second appeal under Section 100 of the CIVIL PROCEDURE CODE has been filed against the judgment and decree dated 28.08.2009 passed by the Additional District Judge at Kachchh-Bhuj in Regular Civil Appeal No.13 of 2008, arising out of the judgment and decree dated 31.08.2007 passed by the Civil Judge, Bhuj in Hindu Marriage Petition No.27 of 2003.

2. The appellant and the respondent are husband and wife. The appellant-husband has lost his case from both the Courts below. The appellant by invoking Section 9 of the HINDU MARRIAGE ACT , 1955 (hereinafter referred to as the “Act” for the sake of brevity), filed a suit for restitution of conjugal rights. The said suit was resisted by the respondent-wife. By way of counter claim, the wife claimed maintenance under Section 24 and 25 of the Act. The Civil Court during the proceedings of the suit directed the husband to pay maintenance pendente lite under Section 24 of the Act. Pending the proceedings, the appellant-husband vide Exh.25 withdrew the said suit. The withdrawal was objected by the respondent-wife and insisted upon the Court to determine the permanent alimony as provided under Section 25 of the Act. The learned Civil Court vide its order dated 04.09.2006, permitted the appellant-husband to withdraw the suit for restitution of conjugal rights and ordered to proceed with the issue of permanent alimony to be determined finally on merits. The Civil Court had framed the issue at Exh.30 and after considering the oral as well as documentary evidence, the application filed under Section 25 seeking permanent alimony was partly allowed. The appellant-husband directed to pay a sum of Rs.1,500/- as monthly maintenance to minor children and so far wife is concerned, no maintenance was passed in her favour as at relevant time, she having sufficient means for livelihood. Being aggrieved with the said judgment and decree dated 31.08.2007, the appellant-husband by preferring appeal, challenged it before the District Court, Bhuj. The learned First Appellate Court after hearing the parties, by confirming the judgment and decree passed by the Civil Court, dismissed the appeal.

3. Being aggrieved with the judgment and decree of the First Appellate Court, the appellant-husband has preferred the present second appeal. While admitting the appeal, the following questions have been formulated as substantial questions of law:

(b) Whether the judgment and decree of the Civil Court is bad in law in view of the provision of Section 25 of the HINDU MARRIAGE ACT ?

(c) Whether the judgment and decree of the Appellate Court is bad in law in view of provision of Section 26 of the HINDU MARRIAGE ACT ?”

4. In the aforesaid background facts, this Court has heard learned counsel Mr. Kirtidev R. Dave and Mr. B.Y. Mankad for the respective parties.

5. Mr. Dave, learned counsel for the appellant argued that, the Courts below were not justified in granting permanent alimony under Section 25 of the Act, having regard to the facts that, the petition for restitution of conjugal rights having been dismissed as not pressed and therefore, Section 25 of the Act which is ancillary to the relief sought in the main petition filed under Section 9 of the Act and the same can be granted only when the main relief is granted. Thus, the Courts below have overlooked the provision of Section 25 which says that, any Court exercising jurisdiction, may at the time of passing any decree or