1980 Supreme(MP) 613

IN THE HIGH COURT OF MADHYA PRADESH
P.D. Mulye, J.
Babulal – Applicant
Versus
Ratanbai – Non-applicant
C. Revn. No. 55 of 1978 (I)
Decided On : 24-04-1980

Headnote:Hindu Adoption and Maintenance Act, 1956 – S. 25 – amount of decreed maintenance – modification of – modification when may be sought by application – no provision in the decree for alteration – effect.

        Short Note

       1. The short facts giving rise to this petition in brief are as under: Non – applicant No.1 Ratanbai is the wife of the applicant and non – applicant Nos.2 to 6 are his sons and daughters. A decree for maintenance of the non – applicants for payment at the rate of Rs. 200 per month was passed against the applicant under section 23 of the Hindu Adoption and Maintenance Act on 25 – 9 – 1974, which was ordered to be paid with effect from 1 – 10 – 1974. As the applicant failed to pay the amount of maintenance the decree was put in to execution. The applicant raised certain objections which were dismissed by the Executing Court. Against that order the applicant filed CR. No 202 of 77 which was also dismissed by this Court on 4 – 9 – 1979.

       2. In the meanwhile the applicant filed an application before the trial Court for reduction of the maintenance amount on the ground that non – applicant Nos. 2 and 3 have become major due to which they are not entitled to claim and receive any maintenance. It was also stated that non – applicant No.4 has left the shelter of the mother and has been living with the applicant. He, therefore, prayed that the maintenance allowance of Rs. 200, passed on the basis of a compromise decree be modified and reduced to Rs. 100 per month on the grounds urged by him. The learned lower Court relying upon the decision reported in AIR 1966 Calcutta 228, (Menokabala Dasi v. panchanan Seal), which in turn has relied on the three decisions of the Nagpur High Court, came to the conclusion that according to section 25 of the Hindu Adoption and Maintenance Act the amount of maintenance cannot be valid by way of application, but for that purpose the only remedy of the aggrieved party is to file a suit and dismissed the said application.

       Held: This section confers ample powers on the Court to vary, modify or even discharge any order fixing the amount of maintenance made by a decree of the Court even though it only states that the amount of maintenance may be altered subsequently if there is a material change in the circumstances justifying such action. It may now be taken as settled law that a decree or agreement fixing maintenance in favour of a wife or widow of other claimant is no bar to a claim for increased maintenance under this section if the circumstances justify such alteration and it is immaterial whether the decree or agreement was before or after the Act. But alteration in the amount of maintenance fixed by a decree cannot be obtained merely by making an application to the Court unless there is provision in the decree granting liberty to apply to have such variation made by way of an application otherwise, the only way in which the variation can be sought would be by way of a suit. The party obtaining any such decree should take care to reserve liberty to apply.

       3. Admittedly the decree in the present case is silent on this point. Therefore, the only remedy of the applicant' is to file a separate suit in absence of any such provision in section 25 of the said Act. This section nowhere provides that a modification in the quantum of maintenance could be obtained by moving such an application especially when compared with the provision of section 25 of the Hindu Marriage Act which relates to permanent alimony wherein it is provided that the Court has the jurisdiction to consider the question on the basis of an application made to it. AIR 1966 Cal. 228, referred to. Revision dismissed.