Case Note & Summary
The appellant husband and respondent wife were married under Hindu law. The Family Court dissolved the marriage by an ex parte decree of divorce under Section 13(1) of the Hindu Marriage Act, 1955 on 12th May 1998. The wife had not contested the divorce. Subsequently, the wife filed applications for maintenance under Section 18 of the Hindu Adoption and Maintenance Act, 1956 and under Section 125 of the Code of Criminal Procedure, 1973. The Family Court dismissed the wife's application to set aside the ex parte decree but directed that the petition under Section 18 of the 1956 Act be treated as an application under Section 25 of the Hindu Marriage Act for permanent alimony. An interim order under Section 125 CrPC directed the husband to pay Rs.1,200 per month. On 18th August 2006, the Family Court finally disposed of the matters, granting permanent alimony of Rs.5,000 per month under Section 25 of the Hindu Marriage Act and directing the husband to either acquire a residential accommodation for the wife in Dadar, Mumbai or pay Rs.3,00,000 towards permanent residential accommodation. The husband appealed, arguing that the wife was not entitled to maintenance as she had not opposed the divorce and that the quantum was excessive. The High Court noted that the ex parte decree had become final and that the Family Court had considered the husband's income and the wife's needs. The husband failed to provide evidence of any change in circumstances. The High Court held that the Family Court's order was just and proper and dismissed the appeal.
Headnote
A) Hindu Marriage Act - Permanent Alimony - Section 25 - Grant of Maintenance - The Family Court granted permanent alimony of Rs.5,000 per month and directed the husband to provide residential accommodation to the wife after an ex parte divorce decree - The husband appealed contending that the wife was not entitled to maintenance as she had not opposed the divorce and that the quantum was excessive - The High Court held that the Family Court had correctly exercised its discretion under Section 25, considering the husband's income and the wife's needs, and that the husband failed to show any change in circumstances warranting interference - The appeal was dismissed (Paras 1-6).
Issue of Consideration
Whether the Family Court was justified in granting permanent alimony of Rs.5,000 per month and directing the husband to provide residential accommodation to the wife under Section 25 of the Hindu Marriage Act, 1955.
Final Decision
The High Court dismissed the appeal, upholding the Family Court's order granting permanent alimony of Rs.5,000 per month under Section 25 of the Hindu Marriage Act, 1955 and directing the husband to either acquire a residential accommodation for the wife in Dadar, Mumbai or pay Rs.3,00,000 towards permanent residential accommodation.
Law Points
- Permanent alimony under Section 25 of Hindu Marriage Act
- 1955 can be granted even after ex parte divorce decree
- Maintenance under Section 125 CrPC merges with Section 25 order
- Quantum of maintenance depends on status and needs of parties
- Right to residence is part of permanent alimony
Case Details
2016 LawText (BOM) (06) 87
Family Court Appeal No.146 of 2008
Ms. Deepti Nayan Wadkar along with Mr. harsh Parte for the Appellant, Shri V.K.S. Nazir for the Respondent
Mr. Dasharath Laxman Rahate
Mrs. Vanita Dasharath Rahate
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Nature of Litigation
Appeal against Family Court order granting permanent alimony and residential accommodation to wife under Section 25 of Hindu Marriage Act, 1955.
Remedy Sought
Husband sought setting aside of the Family Court order dated 18th August 2006 granting permanent alimony of Rs.5,000 per month and directing provision of residential accommodation.
Filing Reason
Husband contended that the wife was not entitled to maintenance as she had not opposed the divorce and that the quantum was excessive.
Previous Decisions
Family Court granted ex parte divorce decree on 12th May 1998 under Section 13(1) of Hindu Marriage Act, 1955; wife's application to set aside ex parte decree was dismissed; Family Court on 18th August 2006 granted permanent alimony of Rs.5,000 per month under Section 25 and directed husband to provide residential accommodation or pay Rs.3,00,000.
Issues
Whether the Family Court was justified in granting permanent alimony under Section 25 of the Hindu Marriage Act, 1955 to the wife despite the ex parte divorce decree.
Whether the quantum of maintenance and direction to provide residential accommodation was excessive or unreasonable.
Submissions/Arguments
Appellant (husband) argued that the wife was not entitled to maintenance as she had not contested the divorce and that the amount of Rs.5,000 per month and direction to provide accommodation was excessive.
Respondent (wife) supported the Family Court order, contending that the husband had sufficient income and the order was just.
Ratio Decidendi
The Family Court has discretion under Section 25 of the Hindu Marriage Act, 1955 to grant permanent alimony even after an ex parte divorce decree, considering the income and status of the parties. The husband failed to show any change in circumstances to warrant interference with the quantum of maintenance or the direction for residential accommodation.
Judgment Excerpts
By the judgment and decree dated 12th May 1998 in Petition No.A1639 of 1996, the learned Judge of the Family Court dissolved the marriage by passing a decree of divorce under Subsection (1) of Section 13 of the Hindu Marriage Act, 1955.
The learned Judge of the Family Court fixed the permanent alimony at the rate of Rs.5,000 per month under Subsection (1) of Section 25 of the Hindu Marriage Act and also directed the husband either to acquire a residential accommodation for the wife in the area of Dadar in Mumbai or to pay a sum of Rs.3,00,000 towards the permanent residential accommodation.
Procedural History
The Family Court passed an ex parte divorce decree on 12th May 1998. The wife filed applications for maintenance under Section 18 of the Hindu Adoption and Maintenance Act, 1956 and Section 125 CrPC. The Family Court dismissed the wife's application to set aside the ex parte decree but treated the Section 18 petition as one under Section 25 of the Hindu Marriage Act. On 18th August 2006, the Family Court granted permanent alimony of Rs.5,000 per month and directed provision of residential accommodation. The husband appealed to the High Court.
Acts & Sections
- Hindu Marriage Act, 1955: Section 13, Section 25
- Hindu Adoption and Maintenance Act, 1956: Section 18
- Code of Criminal Procedure, 1973: Section 125
