IMPORTANT POINT
The court clarified that a claim for permanent alimony under Section 25 of the Hindu Marriage Act can be made at any time, and the lack of a written application does not prevent the court from granting maintenance as long as the necessary evidence is provided.

JUDGMENT

Arindam Sinha, J.

Appellant is the wife. She is aggrieved by judgment dated 13th November, 2019 made by the family Court in her civil proceeding for dissolution of marriage because there was no order made for permanent alimony.

2. There was brief hearing of the appeal on 18th October, 2023. We reproduce below paragraphs 2 and 3 from our order made that day.

'2. Mr. Parekh, learned advocate appears on behalf of respondent-husband and submits, there was neither any claim nor evidence adduced regarding belated claim of permanent alimony, made before this Court.

3. We have seen the petition filed for divorce by appellant-wife. We reproduce below the prayer.

'Therefore it is prayed that, this Hon'ble court may graciously be pleased to dissolved the marriage by a decree of divorce U/s 13(1) (ia) of the Hindu Marriage Act, 1955. Which was solemnized on 29.11.2017 for benevolent and betterment of the petitioner.'

3. Section 25 in Hindu Marriage Act, 1955 admits of the situation appellant-wife is in. The situation is of respondent- husband opposing the appeal by relying on prayer made in the civil proceeding by appellant-wife, bereft of prayer for permanent alimony. In our view this omission cannot be relied upon to bar her claim by pleading constructive res judicata.

4. It will be relevant for us to reproduce below sub- section (1) in section 25.

'25. Permanent alimony and maintenance- (1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.' (emphasis supplied)

5. The provision reproduced above clearly says that any Court exercising jurisdiction under the Act may, inter alia, at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband as the case may be, order that the respondent (in the application) be paid a gross sum or monthly or periodical sum as per provision therein. Sub-sections (2) and (3) provide contingencies for varying the order made or limiting it.

6. Appellant did not make a prayer for permanent alimony in her civil proceeding. Her claim is to be confined to maintenance as raised subsequent to passing of the decree. The provision allows her to apply, as applicant to the Court which passed the decree, for adjudication on what should be the maintenance either by gross sum or monthly or periodical sum, if any, in terms of sub-section (1) in section 25.

7. Ms. Nayak, learned advocate appearing for appellant relies on view taken by a learned single Judge of Bombay High Court in Vijayashree v. Dr. Nishant, reported in 2021 (3) Mh.L.J. 389, paragraph 9. The paragraph is reproduced below.

'9. The Madras High Court in the case of Umarani Vs. D. Vivekannandan, reported in 2000 SCC Online Mad 50 held that there is no need of written application under section 25 of the Hindu Marriage Act, 1955 and permanent alimony and maintenance can be granted on the basis of oral application. The relevant para No. 10 in this judgment reads thus:

'10. It is true that section 25 of the Act contemplates an application for the said purpose. When the lower court has not disposed of section 24 application in time and has disposed of along with the main application, it should have disposed of the application under section 25 also. Therefore, one more litigation could be avoided and on the basis of very same order, the maintenanc