The Allahabad High Court has ruled that a claim for permanent alimony under Section 25 of the Hindu Marriage Act must ordinarily be made in writing, either through a separate application or by a demand carried in the written statement, but that an oral prayer can be entertained in the exceptional case where the court is not required to adjudicate either the entitlement to permanent alimony or its quantum.

The decision came in a first appeal filed by a wife challenging a family court judgment that granted her husband a decree of divorce on grounds of cruelty and desertion, and dismissed her own petition for restitution of conjugal rights. The bench of Justice J.J. Munir and Justice Indrajeet Shukla upheld the divorce on the ground of cruelty but rejected the ground of desertion. It also awarded the wife a lump sum of Rs 9 lakhs as permanent alimony after both parties agreed on the quantum.

The court framed a specific point of determination on whether a written application is mandatory for grant of permanent alimony under Section 25 of the Hindu Marriage Act. After reviewing the statutory language and conflicting high court decisions, the bench held that the plain mandate of the section requires at least an application demanding permanent alimony, which may be made either in the written statement or by a separate written application.

Desertion ground rejected for lack of statutory period and intention

The husband had filed the divorce petition only five days after the wife left the matrimonial home on 21 September 2006. Section 13(1)(ib) of the Hindu Marriage Act requires that desertion must have continued for a period of not less than two years immediately preceding the presentation of the petition.

“The petition seeking dissolution of marriage on the ground of desertion under Section 13(1)(ib) of the Act, 1955 was instituted on 26.09.2006, i.e., within five days of the alleged desertion,” the court observed. “The statutory scheme mandates that desertion must have continued for a period of not less than two years immediately preceding the presentation of the petition. Thus, the statutory requirement was ex facie not satisfied.”

The court further noted that the husband’s own pleading showed that he had requested the wife to leave the matrimonial home, and that the wife had attempted to resume cohabitation in 2007. These facts negated the essential element of animus deserendi—the intention to permanently abandon the matrimonial relationship.

Cruelty finding upheld despite lack of direct evidence

On the ground of cruelty, the court declined to interfere with the trial court’s finding. It noted that the husband as PW-1 had given specific instances of physical assault, including pulling of hair, biting, and smashing his head against the wall. Although no medical reports or independent witnesses were produced, the court held that in cases of domestic violence within the matrimonial home, the testimony of the aggrieved spouse may be the principal evidence.

“The finding of fact recorded by the Trial Court with regard to cruelty, upon appreciation of the evidence adduced by the parties, does not appear to be perverse or contrary to the weight of evidence on record,” the bench observed.

The court also addressed the wife’s argument that the mere filing of dowry proceedings against the husband constituted cruelty. It held that the pendency of criminal proceedings cannot by themselves be treated as proof of falsity or as an act of matrimonial cruelty unless the allegations are adjudicated and found false.

Written application for permanent alimony is the rule

The most significant part of the judgment concerns the procedural requirement for claiming permanent alimony under Section 25. The court traced the legislative object—to prevent a divorced spouse from being left destitute—and held that fixing quantum requires consideration of income, expenditure, liabilities, and means of both parties. A written application allows both sides to lead evidence and prevents surprise.

“In absence of written application preferred under Section 25 of the Act, 1955, it would be almost impossible to adjudicate upon the quantum of permanent alimony,” the court said. It added that amounts already awarded under other mantenance provisions may need to be set off, which requires a structured adjudication.

However, the court recognized an exception. “Thus, we conclude that the filing of a written application for the adjudication of a claim of permanent alimony and inviting objection, allowing oral and documentary evidence is the rule and in exceptional cases oral prayer can also be entertained by the Court where the Court is not required to adjudicate in relation to the quantum and entitlement of permanent alimony.”

Court awards Rs 9 lakhs permanent alimony on parties’ agreement

In the present case, neither party had filed a written application for permanent alimony. But after arguments were concluded, counsel on both sides stated on instructions that, given the long separation of nearly twenty years, the ends of justice would be served by granting permanent alimony without recognizing irretrievable breakdown as a ground. They agreed on a lump sum of Rs 9 lakhs.

After verifying that the instructions were informed and binding, the court awarded the sum to the wife, to be paid within three months by demand draft. The court also placed on record its appreciation for the research assistance provided by a research associate.

The decree of divorce was maintained on the ground of cruelty alone under Section 13(1)(ia) of the Act, and the wife’s petition for restitution of conjugal rights was dismissed, following the family court’s order. The appeal was disposed of without any order as to costs.