Permanent alimony and maintenance under S. 25 of the Hindu Marriage Act can only be granted if divorce is granted but not during the subsistence of the marriage.

( 1 ) THIS first appeal from order, passed by Mr. R. S. Tripathi, the then Vth Additional District Judge, on 19-1-84, in Misc. Case No. 39 of 1983, is directed against an order granting permanent alimony under S. 25 of the Hindu Marriage Act, 1955, to the respondent.

( 2 ) BRIEFLY stated, the proceedings for a decree of divorce were going on in the court below between the parties at the instance of the husband Vinod Chandra Sharma. The learned Additional District Judge dismissed the petition for divorce on 19-1-84 and by the present impugned order of the same date he passed the order granting Rs. 350/- per month as permanent alimony in favour of the wife and against the husband. It is contended that this order is patently illegal and cannot be allowed to stand.

( 3 ) I have heard the learned counsel on both the sides. Permanent alimony and maintenance under S. 25 of the Hindu Marriage Act can only be granted if divorce is granted but not during the subsistence of the marriage. The word decree is used in matrimonial cases in a special sense different from that in which it is used in the Civil P. C. The use of the word decree in S. 25 of the Hindu Marriage Act means the passing of the decree of divorce, restriction of conjugal rights or judicial separation and not the passing of a decree through which the petition itself is dismissed because if the petition fails then no decree is passed. In other words, in such cases decree is denied to the applicant. Obviously alimony cannot, therefore, be granted in a case where a decree for divorce is refused because in such a case the marriage will subsist.

( 4 ) THE power to grant alimony contained in S. 25 of the Hindu Marriage Act has to be exercised when the court is called upon to settle the mutual rights of the parties after the marital ties have snapped by determination or variation by the passing of the decree of a type mentioned in Ss. 10, 11 and 13 of the Act. Read with Ss. 23, 26 and 27 of the Act, a decree can be assumed to have been passed when an application for divorce or similar other relief is granted but surely not when the application is dismissed.

( 5 ) A Division to Bench of the High Court at Delhi was also of the same view in the matter of Smt. Sushama v. Sh. Satish Chander, AIR 1984 Delhi 1. The learned counsel for the respondent concedes the legal position.

( 6 ) AS such the appeal is allowed and the impugned order dt. 19-1-84, passed by Mr. R. S. Tripathi, Vth Additional District Judge, Aligarh, granting alimony at the rate of Rs. 350/- per month to the respondent against the appellant is set aside. The parties shall bear their own costs in the special circumstances of the case. Appeal allowed.

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