IMPORTANT POINT
Permanent alimony – A divorced wife is not required to file a separate application for grant of permanent alimony.

JUDGMENT

D. Dash, J.—The Appellant, by filing this Appeal under Section 100 of the Code of Civil Procedure (for short, ‘the Code’), has assailed the judgment and decree passed by the learned Additional District Judge, Titilagarh, Bolangir, in R.F.A. No.21 of 2015.

The Respondent (husband) as the Petitioner had filed an application under section 13 of the Hindu Marriage Act, 1955 (for short, ‘the H.M Act’) arraigning the Appellant (wife) as the Respondent therein, praying for a decree for dissolution of their marriage. The said application stood numbered as C. S. No.32 of 2011 in the Court of Civil Judge, Senior Division, Titilagarh. The Trial Court decreed the suit and in dissolving the marriage between the parties directed the Respondent (husband) to pay a sum of Rs.7,00,000/- to the Appellant (wife) as permanent alimony. The Respondent (husband) being aggrieved by the said judgment and decree passed in the suit, carried an Appeal under section 28 the H.M Act. The First Appellate Court in that Appeal filed by the Respondent (husband) challenging the grant of permanent alimony to the Appellant (wife) has set aside the said order of the Trial Court as to the direction for payment of the permanent alimony by the Respondent (husband) to the Appellant (wife). Hence this Second Appeal is at the instance of the Appellant (wife) and here she has only questioned the refusal for grant of permanent alimony by the First Appellate Court.

2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit.

3. The Appeal has been admitted to answer the following substantial question of law.

“Whether the Lower Appellate Court is right in setting aside the order passed by the courts below with regard to the payment of permanent alimony taking a view that for the purpose a separate application containing the prayer is the mandate of law which also in the case in hand is not factually correct as here there was an application to that effect?”

4. Mr. D. K. Sahoo, learned counsel for the Appellant (wife) submitted that the view taken by the First Appellate Court by giving a reading to the provision contained in section 25 of the H. M. Act that it is the mandate of law in a proceeding for divorce that in order to claim permanent alimony, an application has to be made in that regard is erroneous. He, further, submitted that this Appellant (wife) while giving her affidavit evidence before the Trial Court had clearly stated that in case, the Court passes the decree for divorce, she be paid with the permanent alimony of a sum of Rs.15,00,000/- so as to maintain herself for the rest of life and provide proper care and education to her son, which according to him ought to have been taken as the claim advanced from the side of the Appellant (wife). He, therefore, submitted that the judgment of the First Appellate Court setting aside the order of grant of permanent alimony of Rs.7,00,000/- by the Respondent (husband) to the Appellant (wife) is not sustainable in the eye of law.

5. Mr. T. K. Sahu, learned counsel for the Respondent (husband) submitted that the view taken by the First Appellate Court is wholly in consonance with the provision contained in section 25 of the H.M. Act, which says that for the purpose of grant of permanent alimony, the claimant has to file an application in that regard, and, therefore, when Respondent (husband) had initiated the proceeding for divorce since the Appellant (wife) had not given any application claiming permanent alimony, the Trial Court having committed error in granting the permanent alimony, the same has been rightly set aside by the First Appellate Court.

6. In order to answer the substantial question of law in addressing the rival submission, it would be apt to take note of the provision contained in section 25 of the H. M. Act, which reads as under:—

“Permanent alimony and maintenance.—(1) Any Court exercisin