Entitlement for permanent alimony to wife.

C.R.P. 1324 of 1986 converted into C.M.S.A. No.8 of 1988:- In view of the order passed in C.M.P. 12496 of 1988 this petition is converted into C.M.S.A. and disposed of accordingly. The only substantial question of law that arises in this appeal is whether the permanent alimony can be granted to wife u/S.25 of the Hindu Marriage Act, even though the main petition for annulment of marriage u/S.12 of the Act is dismissed.

2. According to the learned counsel for the appellant Mr. M.N. Padmanabhan that u/S.25 of the Hindu Marriage Act, a permanent alimony can be granted only when on the petition filed by either of the spouses u/Ss.9, 10, 11, 12 or 13 of the Act, a decree is passed and not in cases where the petition is dismissed. According to the learned counsel, only in cases where the marriage relationship comes to an end or altered, a permanent alimony can be granted and not in cases where the relationship of the marriage is subsisting and the remedy of the spouse is to proceed under the Hindu Adoption and Maintenance Act, 1956 for the relief of maintenance and not under the Hindu Marriage Act. In support of his contention, the learned counsel relied on various decisions reported in Shantaram Gopal Shet Narkar v. Hirabai, 1962 AIR(Bom) 27; Minarani Majumdar v. Dasarath Majumdar, 1963 AIR(Cal) 428; Shantaram Dinakar Karnik v. Malti Shantaram Karnik, 1964 AIR(Bom) 83; Akasam Chinna Basu v. Akasam Parbati, 1967 AIR(Orissa) 163 (DB); Purshotam v. Devki 1973 AIR(Raj) 3; Gurucharan Kuar v. Ramchand, 1979 AIR(P&H) 206; Darshan Singh v. Mst Daso, 1980 AIR(Raj) 102; Sushma v. Satishchandra, 1984 AIR(Delhi) 1; and Vinod Chandra Sharma v. Rajesh Pathak, 1988 AIR(All) 150. The ratio laid down in the above said decisions is to the effect that in the context of S.25 of the Act, the expression 'passing any decree' means any of the decrees provided for u/Ss.9, to 13 of the Act, and not the dismissal of a petition. But although technically speaking dismissal of a suit may be called a decree, such a decree is not contemplated u/S.25 of the Act. The learned counsel appearing on either side frankly conceded that there is no judgment of this Court on this question. However, the learned counsel for the appellant submitted that there is one decision of this Court u/S.37 of the Indian Divorce Act, reported in Devasahayam v. Devamony, 1923 (46) ILR(Mad) 133 : 1923 AIR(Mad) 211) wherein it was held as follows -

"It is not competent to the Court dismissing a husband's petition for dissolution of marriage, to award maintenance to the wife, u/S.15 or 37 of the Indian Divorce Act. Though the wife might have filed an application for divorce or judicial separation on the husband's petition u/S.15 of the Act, still in the absence of a decree for dissolution or judicial separation, no order for maintenance can be made under the Act." *

To appreciate the aforesaid decision, it is worthwhile to quote the provisions of S.37 of the Indian Divorce Act, which runs thus -

"The High Court may, if it thinks fit, on any, decree absolute declaring a marriage to be dissolved, or any decree of judicial separation obtained by the wife, and the District Judge may, if he thinks fit, on the confirmation of any decree of his declaring a marriage to be dissolved or any decree of judicial separation obtained by the wife, order that the husband shall, to the satisfaction of the Court secure to the wife such gross sum of money or such annual sum of money for any term not exceeding her own life, as having regard to her fortune (if any) to the ability of the husband, and to the conduct of the parties, it thinks reasonable; and for that purpose may cause a proper instrument to be executed by all necessary parties. In every such case the Court may make an order on the husband for payment to the wife of such monthly or weekly sums for her maintenance and support as the Court may think reasonable."

See. 25 of Hindu Marriage Act reads as follows -

"(1) Any Court exercising jurisdicti