This post deals with Permanent Alimony under Section 25, HMA 1955. More info on 99888-17966.
Judgement Digest: Sukhbir Kaur v. Sukhdev Singh
Case Briefing:
Present is a petition filed by the petitioner/ appellant against decree dated 04.09.15 under Section 11 of Hindu Marriage Act, 1995 (‘Act’ for short) and submitted that the appellant is entitled to permanent alimony in terms of Section 25 of the Act.
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Facts of the Case:
- The marriage of the parties was solemnized on 11.6.2012 at Gurudwara Singh Sabha, Majitha Road, Amritsar as per Hindu Sikh Rites and rituals. No child was born out of the said wedlock.
- The petition was filed by the respondent/husband under Section 11 of the Act for annulment of marriage on the ground of violation of Section 5 (i) of the Act wherein it has been alleged by him that the factum of earlier marriage was not disclosed to him at the time when their marriage was solemnized.
- On pleadings of the parties, the learned trial Court came to a conclusion that the panchayati talaknama is not sustainable in the eyes of law and, therefore, at the time of marriage, she was already having a spouse and, therefore, a decree under Section 11 of the Act was passed against her declaring her marriage null and void.
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Section 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.
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(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].
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Case laws:
Supreme Court in the case of Ramesh Chandra Rampratapji Daga v. Rameshwari Ramesh Chandra Daga on 13.12.2004 held that, the expression used in the opening part of Section 25 enabling the ‘Court exercising jurisdiction under the Act’ ‘at the time of passing any decree or at any time subsequent thereto’ to grant alimony or maintenance cannot be restricted only to, as contended, decree of judicial separation under Section 10 or divorce under Section 13. When the legislature has used such wide expression as ‘at the time of passing of any decree,’ it encompasses within the expression all kinds of decrees such as restitution of conjugal rights under Section 9, judicial separation under Section 10, declaring marriage as null and void under Section 11, annulment of marriage as voidable under Section 12 and Divorce under Section 13.’
It is further contended that it was also held by the Supreme Court that the marriage of the person already having a spouse may be illegal being in contravention of the provisions of the Act but cannot be stated to be immoral so as to deny the right of alimony or maintenance. In order to buttress the arguments, learned counsel for the appellant has also referred to the decision in the case of Chand Dhawan (supra).
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A decision of the Supreme Court in the case of Balwant Rai Saluja and another versus Air India Ltd. and others 2015 AIR (SC) 375 that the binding precedent would be the judgment relied upon by him in the case of Ramesh Chandra (supra) as in that case the Court is deciding a similar issue which is involved in the present case. The court held that, “In our view, the binding nature of a decision would extend to only observations on points raised and decided by the Court and neither on aspects which it has not decided nor had occasion to express its opinion upon. The observation made in a prior decision on a legal question which arose in a manner not requiring any decision and which was to an extent unnecessary, ought to be considered merely as an obiter dictum. We are further of the view that a ratio of the judgment or the principle upon which the question before the Court is decided must be considered as binding to be applied as an appropriate precedent.”
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Judgment of the case:
The present case is governed by the decision of the Supreme Court in Ramesh Chandra’s case (supra) and thus, the present appeal is hereby allowed only to the extent that the question of law which has been framed by us holding that the appellant would be entitled to permanent alimony under Section 25 of the Act dehors the fact that the decree has been passed under Section 11 of the Act. Since the decree has been upheld because it has not been challenged, therefore, in order to determine as to how much amount has to be received by the appellant from the respondent, the matter has to be remanded back to the learned trial Court as it would depend upon the facts and circumstances which will come on record after the evidence is led by both the parties. Hence, the matter is remanded back to the learned trial Court who had passed the decree in favour of the respondent/husband, to decide the application under Section 25 of the Act, to be filed by the appellant before it for the purpose of seeking permanent alimony.
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