Permanent Alimony--Wife would be entitled to permanent alimony even if the marriage has been declared as null and void

RAKESH KUMAR JAIN, J.

1. This appeal has arisen from the judgment and decree dated 4.9.2015 by which the respondent-husband has been granted decree of divorce under Section 11 of the Hindu Marriage Act, 1955 (‘Act’ for short).

2. Learned counsel for the appellant has submitted that the appellant is entitled to permanent alimony in terms of Section 25 of the Act but learned counsel for the respondent has submitted that once the marriage of the appellant with the respondent has been held to be null and void, after decree has been passed under Section 11 of the Act, the question of award of permanent alimony does not arise at all.

3. In view of the aforesaid contentions raised by learned counsel for the parties, the question that would arise for adjudication in the appeal before this Court is as to whether the appellant-wife would be entitled to permanent alimony even if a decree has been passed against her under Section 11 of the Act?

4. Learned counsel for the appellant has relied upon the decisions of the Supreme Court rendered in the case of Ramesh Chandra Rampratapji Daga versus Rameshwari Ramesh Chandra Daga, (2005) 1 RCR(Civ) 615, Chand Dhawan versus Jawaharlal Dhawan, (1993) 2 HinduLR 203.

5. As against, learned counsel appearing on behalf of the respondent has relied upon the following decisions :-

1. Yamunabai Anantrao Adhav versus Anantrao Shivram Adhav, (1988) 1 HinduLR 375.

2. Savitaben Somabhai Bhatiya versus State of Gujarat and others, (2005) 2 RCR(Cri) 190 .

3. Abbayolla M. Subba Reddy versus Padmamma, (1998) 4 RCR(Civ) 314 (Full Bench of Andhra Pradesh High Court).

4. Navdeep Kaur versus Dilraj Singh, (2003) 1 RCR(Civ) 365 (Single Bench of this Court).

5. Bhausaheb @ Sandu versus Lellabai, (2004) 2 RCR(Civ) 268 (Full Bench of Bombay High Court).

6. We have heard the learned counsel for the parties on the issue involved and perused the record with their able assistance. Before we proceed to decide the question of law, it would be relevant to refer to some facts of the case, extracted from the decision of the trial Court.

7. The marriage of the parties was solemnized on 11.6.2012 at Gurudwara Singh Sabha, Majitha Road, Amritsar as per Hindu Sikh Rites and rituals. No child was born out of the said wedlock. Insofar as the status of the parties are concerned, the respondent-husband was a widower whereas the appellant wife who had claimed herself to be a spinster, was already married. The present petition was filed by the respondent-husband under Section 11 of the Act for annulment of marriage on the ground of violation of Section 5 (i) of the Act wherein it has been alleged by the appellant that the factum of earlier marriage was not disclosed to him at the time when their marriage was solemnized on 11.6.2012.

8. On the pleadings of the parties, as many as four issues were framed by the learned trial Court and after both the parties had led their oral and documentary evidence, the learned trial Court came to a conclusion that the panchayti talaknama is not sustainable in the eyes of law and, therefore, at the time of marriage by the appellant with the respondent, she was already having a spouse and, therefore, a decree under Section 11 of the Act was passed against her declaring her marriage null and void.

9. Although the appellant did not file any application for seeking permanent alimony before the Court below who had passed the decree but had chosen to file the present appeal in which the only prayer made by her is for grant of permanent alimony and not for setting aside the judgment and decree of the learned trial Court.

10. In view of the aforesaid background, the issue which has been framed by us in the beginning of this order would be the main issue for adjudication. Before we deal with the issue raised by both the parties it would be relevant to refer to Section 25 of the Act which is reproduced as under:-

25-Permanent alimony and maintenance-

(1) Any court exercising jurisdiction under this Act may, at the time of