ORDER

The appellant-wife has preferred this miscellaneous appeal under Order 43 Rule 1(d) of the Code of Civil Procedure, 1908, against the order dated 05.07.2016 passed by the learned Second Additional District Judge, Waraseoni, District Balaghat in Civil M.J.C. No.55/2015, whereby her application under Order IX Rule 13 of the CPC for setting aside the ex-parte judgment and decree passed in the matrimonial proceeding was dismissed.

2. Learned counsel for the appellant, at the outset, submits that the respondent-husband has already remarried after obtaining the decree of divorce. It is further submitted that, having regard to the age of the parties and the circumstances prevailing, the appellant is not interested in prosecuting the matter insofar as the decree of divorce is concerned. However, it is submitted that the learned matrimonial Court has not considered the question of alimony in favour of the appellant-wife. Therefore, the matter may be remitted to the learned matrimonial Court for consideration of the said question.

3. Learned counsel for the respondent submits that the respondent has already given some property to the girl child and is also paying a sum of Rs.5,000/- per month in compliance with the order passed under Section 125 of the Code of Criminal Procedure by the concerned Judicial Magistrate First Class. However, he submits that if the appellant is not challenging the decree of divorce and is seeking only an order for alimony, she may proceed independently before the learned matrimonial Court.

4. Heard learned counsel for the parties and perused the record.

5. From the record, it is evident that the matrimonial proceeding was instituted by the respondent against the appellant under the Hindu Marriage Act, 1955 and the same culminated in an ex-parte judgment and decree dated 09.07.2015. The appellant had thereafter preferred an application under Order IX Rule 13 of the CPC seeking setting aside of the said ex-parte judgment and decree. The said application was dismissed by the learned Court below vide impugned order dated 05.07.2016.

6. At this stage, learned counsel for the appellant has categorically submitted that the appellant is not interested in prosecuting the matter insofar as the decree of divorce is concerned and is only seeking an opportunity to pursue her claim for alimony. Thus, in view of the aforesaid submission, there appears to be no necessity to remit the matter for restoration or further adjudication of the proceedings insofar as the decree of divorce is concerned. However, it is evident from the record that the question of alimony in favour of the appellant-wife was not considered by the learned matrimonial Court while passing the judgment and decree.

7. Section 25(1) of the Hindu Marriage Act, 1955 reads as under:—

“25. Permanent alimony and maintenance.—(1) 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 may be, order that the respondent shall, while the applicant remains unmarried, 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.”

8. The scope and manner of exercise of the power under Section 25 of the Hindu Marriage Act has also been considered by this Court in Surajmal Ramchandra Khati Vs. Rukminibai d/o Prabhulal, 2000 (1) MPLJ 19. Though the facts and circumstances of the said case are somewhat different from those of the present case, the principle laid down therein is relevant