ORDER :

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, 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 defence 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.

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 1