UMARSHI KAYABHAI CHANDE Vs. VANITABEN UMARSHI CHANDE

JUDGEMENT

(1.) This second appeal under Sec. 100 of the Civil Procedure Code has been filed against the judgment and decree dtd. 28/8/2009 passed by the Additional District Judge at Kachchh-Bhuj in Regular Civil Appeal No.13 of 2008, arising out of the judgment and decree dtd. 31/8/2007 passed by the Civil Judge, Bhuj in Hindu Marriage Petition No.27 of 2003.

(2.) The appellant and the respondent are husband and wife. The appellant-husband has lost his case from both the Courts below. The appellant by invoking Sec. 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as the 'Act' for the sake of brevity), filed a suit for restitution of conjugal rights. The said suit was resisted by the respondent-wife. By way of counter claim, the wife claimed maintenance under Sec. 24 and 25 of the Act. The Civil Court during the proceedings of the suit directed the husband to pay maintenance pendente lite under Sec. 24 of the Act. Pending the proceedings, the appellant-husband vide Exh.25 withdrew the said suit. The withdrawal was objected by the respondent-wife and insisted upon the Court to determine the permanent alimony as provided under Sec. 25 of the Act. The learned Civil Court vide its order dtd. 4/9/2006, permitted the appellant-husband to withdraw the suit for restitution of conjugal rights and ordered to proceed with the issue of permanent alimony to be determined finally on merits. The Civil Court had framed the issue at Exh.30 and after considering the oral as well as documentary evidence, the application filed under Sec. 25 seeking permanent alimony was partly allowed. The appellant-husband directed to pay a sum of Rs.1,500.00 as monthly maintenance to minor children and so far wife is concerned, no maintenance was passed in her favour as at relevant time, she having sufficient means for livelihood. Being aggrieved with the said judgment and decree dtd. 31/8/2007, the appellant-husband by preferring appeal, challenged it before the District Court, Bhuj. The learned First Appellate Court after hearing the parties, by confirming the judgment and decree passed by the Civil Court, dismissed the appeal.

(3.) Being aggrieved with the judgment and decree of the First Appellate Court, the appellant-husband has preferred the present second appeal. While admitting the appeal, the following questions have been formulated as substantial questions of law: