PATEL DHARAMSHI PREMJI Vs. BAI SAKAR KANJI

JUDGEMENT

(1.) This appeal raises a short but interesting question of construction of sec. 25 of the Hindu Marriage Act 1955 The question is whether a husband or wife can apply to the Court for permanant alimony under sec. 25 after the passing of a decree for divorce. There is a decision of Raju J. in Gunvantrai v. Bai Prabha A.I.R. 1963 Gujarat 242 (V G.L.R. 188 where the view has been taken that such an application cannot be made as the decree for divorce puts an end to the relationship of husband and wife and thereafter any application made to the Court cannot be said to be an application by the husband or the wife as required by sec. 25. The validity of this view is questioned in the present Second Appeal. The question raised is a pure question of law depending on the construction of sec. 25 but it is necessary to state briefly a few facts giving rise to the appeal as they are relevant to the alternative contention urged on behalf of the appellant.

(2.) The appellant and the respondent were married according to Hindu rites and one son was born of this marriage. The appellant and the respondent however soon fell out and the respondent left the appellant and went away to her fathers house. The appellant thereupon filed a Petition against the respondent under sec. 9 for restitution of conjugal rights. The respondent resisted the petition on the ground that she was treated with cruelty when she was living with the appellant and she was therefore entitled to stay away from the appellant. The respondent however failed to establish cruelty by cogent evidence and a decree for restitution of conjugal rights was therefore passed against her by the Court on 28th February 1958. The respondent did not comply with the decree for a period of two years and the result was a petition for divorce by the appellant against the respondent. There was little defence to this petition and a decree for divorce was ultimately passed in the petition on 23rd February 1961 dissolving the marriage between the appellant and the respondent. The respondent thereafter preferred Civil Miscellaneous Application No. 26 of 1961 under sec. 25 claiming permanent alimony at the rate of Rs. 75 per month from the appellant The application was opposed by the appellant and one of the grounds of opposition was that the application was not tenable as the respondent was the erring spouse and it was by reason of the refusal of the respondent to carry out the decree for restitution of conjugal rights that a decree for divorce had to be obtained against her. The Court in view of the express language of sec. 25 rejected this ground and after considering all the facts and circumstances of the case awarded a sum of Rs. 20 per month as and by way of permanent alimony to the respondent. There were two appeals against this order one by the appellant and the other by the respondent. The lower appellate Court dismissed the appeal of the appellant and allowed the appeal of the respondent in part by increasing the amount of permanent alimony to Rs. 28 per month. The appellant thereupon preferred the present Second Appeal in this Court.

(3.) Before we proceed to examine the merits of the appeal it will be convenient to first dispose of the cross-objections filed on behalf of the respondent against the order of the lower appellate Court. The respondent claims by the cross-objections that a larger amount should have been allowed to her by way of permanent alimony. But it is now well-settled by a decision of this Court in Umiyaben v. Ambalal (1965) VI G.L.R. 714 that the right of second appeal conferred by sec. 28 is limited to the grounds set out in sec. 100 of the Code of Civil Procedure and can therefore be exercised only on questions of law and not on questions of fact. What should be the quantum of the amount of permanent alimony on a consideration of the factors set out in sec. 25 is essentially a question of fact and no Second Appeal can lie to challenge the determination of the amount of permanent alimony made by the lower appellate Court unless the complaint be that the lower appellate Court has failed to take into account any factors set out in sec. 25 or taken into account any extraneous or irrelevant factors. The cross-objections do not allege any such defect in the determination of the lower appellate Court and they must therefore be rejected as incompetent.