By this appeal the appellant is assailing correctness, propriety and legality of the order which has been passed by the 3rd Addl. District Judge, Mandsaur .in the matter of H.M.A. 20/98 so far as the order of the trial Court granting permanent alimony to respondent at the rate of Rs. 800/- per month is concerned.

A matrimonial petition was filed by the present appellant Surajmal in the said Court for getting divorce against the respondent Rukminibai, his wedded wife. He alleged that Rukminibai is living in adultery for 3 years prior to the presentation of matrimonial petition in the Court. He also alleged that she used to abuse him and his family members when she was residing in his house. He further alleged that inspite of notice sent to respondent and a meeting of caste panchyat, respondent did not come back to matrimonial home. The respondent contended that the appellant was assaulting her and on account of such assault it was not safe for her to stay with him alongwith their daughter. The daughter begotten out of the said wedlock seems to be with respondent-Rukminibai. The trial Court granted a decree of divorce in favour of the appellant and against the respondent herself dissolving their marriage. However, while deciding that matrimonial petition the trial Court granted alimony of Rs. 800/- per month to the respondent. And that alimony order is subject matter of challenge in this appeal.

Shri Ukas, submitted that the learned trial Judge committed the error of granting permanent alimony in favour of the respondent in the absence of the application of prayer made by the respondent for permanent alimony. He further submitted that while passing such order, the trial Judge did not consider the conduct of the respondent. Though it passed a decree of divorce in favour of the appellant, he submitted that the said order of permanent alimony be set aside by allowing this appeal.

Shrj Ajay Ukas, counsel for the appellant placed reliance on judgments as follows:

1 (1982) D.M.C. 83 (Bhikalal v. Kamlabai)

(1982) 1 D.M.C. 171 (Rajagopalan v. Kamalammal)

1993 Cr.LJ. 2930 (Smt. Chand Dhawan v. Jawahar Dhawan).

These judgments cited by Shri Ukas, are not relevant to the point which is to be adjudicated.

Shri Ukas further placed reliance on the provisions of S.25 of the Hindu Marriage Act, 1955 (hereinafter referred to as Act for convenience) where it has been provided that--

"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 maybe, 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."

While considering provisions of S.25 of the Act, provisions of S.23(B) can not be ignored which provides that -

"In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner's adultery, cruelty or desertion, but also make a counterclaim for any relief under this Act on that ground; and if the petitioner's adultery, cruelty or desertion is proved, the Court may give to the respondent any relief under this Act to which he or she would have been entitled if he· or she had presented a petition seeking such relief on that ground."

It means that in absence the petition filed by other spouse who has been contesting said litigation as respondent, is entitled to claim any relief under the provisions of the Act by making cou