Statutory provisions allow for the revision of permanent alimony if there is a change in circumstances, regardless of the initial consent.

Headnote:
enhancement - permanent alimony - Hindu Marriage Act, 1955/Section 31 of the Jammu and Kashmir Hindu Marriage Act., 1980 - Section 25 (2) of Hindu Marriage Act, 1955 - Section 31 (2) of the Jammu and Kashmir Hindu Marriage Act, 1980
Fact of the Case:

The wife appealed for enhancement of permanent alimony after the divorce decree was passed with consent of both parties. The court rejected the appeal, stating that the consent order cannot be modified.
Finding of the Court:

The court found that despite the permanent alimony being fixed with consent, the wife was entitled to seek enhancement as per statutory provisions. The court also held that the Letters Patent Appeal was not maintainable.
Issues: The issues were whether the wife could seek enhancement of permanent alimony and whether the Letters Patent Appeal was maintainable.
Ratio Decidendi: The court held that statutory provisions allow for the revision of permanent alimony if there is a change in circumstances, regardless of the initial consent. The court also determined that the Letters Patent Appeal was not maintainable.
Final Decision: The appeal was dismissed, and the wife was given liberty to seek other remedies for enhancement of permanent alimony.

JUDGMENT :

Pankaj Mithal, C.J.

1. The wife Smt. Vijay Kumari has preferred this Letters Patent Appeal (LPA) against the order dated 27.07.2020 passed by the learned single Judge rejecting her application for enhancement of permanent alimony in an appeal arising out of the judgment and order of the court of first; instance in a divorce case.

2. The matrimonial dispute between the appellant and her husband Ashwani Kumar came up for consideration in a divorce case. The divorce petition was dismissed whereupon the respondent husband preferred an appeal before the High Court. The appeal was allowed and a consent decree of divorce and a permanent alimony was passed on 27.07.2020 by the learned single Judge.

3. The appellant wife was allowed permanent alimony @ Rs. 1000/- per month.

4. The said judgment and order of the learned single Judge passed with the consent of the parties became final and conclusive as no one challenged it any further, rather the appellant wife started accepting the alimony so fixed.

5. The appellant wife moved an application before the Additional District Judge (Matrimonial Cases), Jammu on 28.07.2010, i.e., after ten years of the decree of divorce, for the enhancement of alimony as envisaged under Section 25 of the Hindu Marriage Act, 1955/Sec-tion 31 of the Jammu and Kashmir Hindu Marriage Act., 1980.

6. The application was rejected as not maintainable as the decree of divorce was passed by the High Court. Accordingly, appellant wife preferred an application under Section 31 of the Jammu and Kashmir Hindu Marriage Act, 1980/Section 25 of the Hindu Marriage Act, 1955 for the enhancement of the alimony before the High Court. The said application has been rejected by the learned single Judge by the order impugned dated 27.07.2020 holding that as the permanent alimony was fixed with the consent of the parties, the same is not liable to be modified and that the provisions of Section 31 (2) of the Jammu and Kashmir Hindu Marriage Act, 1980 would not come in operation as the same are applicable only when the permanent alimony is fixed on merits. In other words, the application was rejected on the ground that it is not maintainable against the consent order.

7. In this Letters Patent Appeal, two preliminary issues arise, namely;

i) Whether the appellant wife is entitled to maintain an application for enhancement of permanent alimony even though the same has been fixed by consent of the parties;

ii) Whether the Letters Patent Appeal is maintainable against the order impugned which has been passed by the learned single Judge in exercise of his appellate power.

8. There is no dispute to the fact that the decree of divorce passed vide judgment and order dated 13.10.2000 by the learned single Judge was with the consent of both the parties fixing permanent alimony @ Rs. 1000/- per month. Thus, in the normal circumstances, the said order cannot be challenged any further either by means of an appeal or revision or otherwise. Notwithstanding the above, Section 31 (2) of the Jammu and Kashmir Hindu Marriage Act, 1980 which is in pari materia with Section 25 (2) of Hindu Marriage Act, 1955 provides that if a court is satisfied that there is a change in the circumstances of either party at any time after the order of permanent alimony was made, it may at the instance of the either party, vary, modify or rescind or any such order in such manner as may be deemed just by the court. This provision gives recurring cause of action to either of the parties to the matrimonial dispute to have the order or permanent alimony, varied, modified or rescinded.

9. The aforesaid provision lays down no rider that such power cannot be exercised if the order has been passed earlier with the agreement of the parties.

10. This may be for the reason that the consent given at one point of time may not remain to be an appropriate one with the passage of time and in the changed circumstances and therefore parties be left free to have the order modified or rescind

Click Here to Read the rest of this document