IMPORTANT POINT
Trial court empowered to grant alimony at its discretion notwithstanding dissolution of marriage on ground of desertion.

Rajesh Shankar, J.—The present appeal is directed against the judgment and decree dated 11th January, 2010 (decree sealed and signed on 28.01.2010) passed by the Principal Judge, Family Court, Palamau at Daltonganj in Matrimonial Case no. 14 of 2007 whereby and whereunder the petition filed by the appellant under Section 13(1)(ib) of the Hindu Marriage Act, 1955, was decreed but with permanent alimony of Rs.1,50,000/-(one lakh and fifty thousand) payable in favour of the respondent.

2. The appellant is the husband, who filed a petition under Section 13(1)(ib) of Hindu Marriage Act, 1955 against the present respondent, (the opposite party therein) seeking a decree of divorce.

3. The present appeal is confined to the part of impugned judgment and decree dated 11.01.2010, whereby the learned Principal Judge, Family Court, Palamau, while granting decree of divorce to the appellant under Section 13(1)(ib) of Hindu Marriage Act, 1955, has also directed the appellant to pay permanent alimony of Rs.1,50,000/-(rupees one lakh fifty thousand) to the present respondent.

4. The factual matrix of the case is that the present appellant was married to the respondent on 18.06.1999 at Bishnu Mandir, Daltonganj, District- Palamau according to Hindu rites and customs and thereafter both of them stayed together till 2004. Subsequently, the relationship between them got strained and according to the petitioner, the respondent did not return back from her parental house once she left the matrimonial house sometime in August, 2004. The appellant also filed a criminal case, being Complaint Case no. 462 of 2000, against the respondent and her family members and the said case was subsequently compromised between the parties and, accordingly, disposed of.

5. There had been allegations and counter allegations by the parties against each other, however, the admitted fact emerging from both the sides is that from their wedlock, one son namely, Shambhu Choubey and one daughter namely, Anjali Kumari were born, who were living with the respondent at village Jhura in the district of Garhwa at the time of the filing the matrimonial case by the petitioner.

6. In the matrimonial case, the respondent though filed written statement, denying the contentions raised by the appellant initially but subsequently she stopped making pairvi in the said case, and thus the case proceeded and was decided ex-parte by the learned court below. The impugned judgment was passed by learned court below relying on the unrebutted evidences of P.W.1 (the appellant himself) and P.W.2 (father of the appellant).

7. Accordingly, the matrimonial case was decided in favour of the appellant and the learned court below granted a decree of divorce under Section 13(1) (ib) of Hindu Marriage Act, 1955 in favour of the appellant. However, the learned court below also directed the appellant to pay permanent alimony of Rs.1,50,000/- to the respondent.

8. The learned counsel for the appellant submits that the learned court below has committed serious error in granting permanent alimony in favour of the respondent ignoring the fact that a decree of divorce was granted in favour of the appellant on the ground of desertion on the part of the respondent. The learned counsel also submits that the grant of permanent alimony to the respondent was also unwarranted as she did not file any application under Section 25 of Hindu Marriage Act, 1955, seeking permanent alimony.

9. For considering the aforesaid submission, it would be appropriate to refer to the observation made by Hon’ble Supreme Court in the case of Chand Dhawan (SMT) Versus Jawaharlal Dhawan, reported in (1993) 3 Supreme Court Cases 406, the relevant part of which reads thus:

“23. …………………On the other hand, under the Hindu Marriage Act, in contrast, her claim for maintenance pendente lite is durated (sic) on the pendency of a litigation of the kind envisaged under Section 9 to 14 of the Hindu Marriage Act, and her claim to permanent maint