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HIGH COURT OF BOMBAY
PUSHPA V. GANEDIWALA, J
Vijayashree D/o Ganesh Ingle, Erstwhile Vijayshree W/o Nishant Kale – Appellant
Versus
Dr. Nishant Arvind Kale – Respondent
SECOND APPEAL NO. 125 OF 2019
For the Appellants/Petitioners: Shri R.L. Khapre, Shri A.M. Tirukh
For the Respondents: Shri Onkar Ghare, Shri A.M. Ghare
Spouses can claim permanent alimony post-divorce decree under Section 25, with oral applications recognized as valid, emphasizing justice over technicality.
Headnote:(A) Hindu Marriage Act, 1955 - Section 25 - Permanent alimony and maintenance - Court must consider financial status of both parties when determining entitlement for permanent alimony; oral applications permissible - Technical rejection of claims can result in miscarriage of justice. (Paras 5, 22)
(B) The Court ruled that a divorcee spouse can claim permanent alimony even after the decree is passed.
Facts of the case:
Parties divorced by mutual consent, with the appellant claiming the right to permanent alimony which was denied due to lack of written application.
Findings of Court:
The Court found that oral applications for permanent alimony are valid and should be considered irrespective of the decree, focusing on financial circumstances.
Issues: The necessity of a written application for claiming permanent alimony and maintenance after divorce.
Ratio Decidendi: The Court emphasized that technical adherence to the requirement of application must not overshadow the material evidence available; the merits of the claim should guide the Court’s discretion.
Result: Appeal allowed and the matter remanded to trial court for consideration.
| Table of Content |
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| 1. the appeal arises from claims for permanent alimony after divorce. (Para 2 , 3 , 5 , 6 , 7) |
| 2. hearing of the appeal regarding issues of permanent alimony. (Para 4) |
| 3. court considers if oral applications suffice under section 25 of the act. (Para 8 , 11 , 13) |
| 4. discussion on oral application and circumstances for alimony. (Para 12) |
| 5. judicial discretion emphasized over technical adherence in alimony claims. (Para 18 , 20 , 22) |
| 6. final decision to remand for consideration of alimony. (Para 23 , 24) |
2. This appeal challenges the judgment and decree in R.C.A. No. 33/2018 dated 07/12/2018 passed by the Ad-hoc District Judge-1, Khamgaon, Dist. Buldhana which dismissed the appeal and confirmed the judgment and decree dated 20/12/2017 in H.M.P. No. 78/2017, passed the Court of Civil Judge, Senior Division, Khamgaon which failed to consider the prayer for permanent alimony of the appellant-wife while decreeing divorce by mutual consent.
3. This Court admitted the appeal on the following substantial questions of law :
(i) Whether it is necessary for the wife to file application in writing to grant permanent alimony under Section 25 of the Hindu Marriage Act, 1955 ?
(ii) Whether wife can claim maintenance under Section 25 of the Hindu Marriage Act, 1955 , as she is divorcee, after passing the decree of divorce ?
4. With regard to the substantial questions of law at serial No. 2, both the learned counsel are at consensus that Section 25 of the Act does permit the divorcee spouse to claim maintenance from the other spouse even subsequent to the passing of the decree of divorce, subject to certain conditions specified therein. Hence, there is no need to discuss on this question. For ready reference text of Section 25 of the Act is reproduced below:
“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 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.
2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.
3) If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, [it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.]”
5. Before adverting to answer the first substantial question of law, it would be necessary to have a glance at the facts leading to filing of this appeal. The marriage between the parties was solemnized on 25/03/2016. Since there was matrimonial disharmony and differences between the parties they moved a joint petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act”). The Court of Civil Judge, Senior Division, Khamgaon dissolved the marriage between the parties by recording its satisfaction that the parties have not been able to live together. It is the grievance of the appellant / wife that both the courts below have failed to consider her prayer for permanent alimo
