SOUMYANARAYANAN Vs. JAYALAKSHMI AMMAL

JUDGEMENT

(1.) THIS is an appeal against the order of the learned First Assistant Judge of the City Civil Court, Madras, directing the appellant, who had previously divorced his wife, the respondent, to pay permanent alimony at the rate of Rs. 65 per mensem.

(2.) SOUMYANARAYANAN , the appellant, married Jayalakshmi Ammal, the respondent on 10th February, 1957. In O.P. No. 33 of 1964 on the file of the Court below the respondent instituted a petition under Section 12 of the Hindu Marriage Act for annulment of the marriage on the ground that the appellant was impotent at the time of the marriage and continued to be so until the institution of the proceedings. In spite of contest by the husband the Court below passed an order on 1st September, 1964, annulling the marriage on the ground alleged by the wife. Subsequent to the date of annulment the divorced wife filed a petition for alimony at the rate of Rs. 100 per mensem with effect from 1st September, 1964. This petition was allowed by the Court below to the extent indicated above. The quantum awarded is not contested in this appeal. The only question argued relates to the maintainability of the respondent's petition for alimony. It is said that under Section 25 of the Hindu Marriage Act, an application for alimony made by a woman, who has ceased to be a wife, is not maintainable. That section runs as follows:

(3.) THE next contention of the appellant is that under the terms of Section 25 the applicant must have the status of wife or husband as a necessary pre -condition to the prayer for maintenance, and that in this case, although at the time of annulment of the marriage, the wife could have prayed for alimony, and the Court could have granted it, the moment that wife ceased to be a wife on account of annulment of the marriage she became incompetent to file an application for maintenance and the Court lost jurisdiction to award it. I am unable to agree. Reference to the wife or the husband in Section 25, is only descriptive in character, and if read in the context of the entire section, would mean the divorced wife or the divorced husband. The severance of the marital tie effected by the decree annulling the marriage does not, in the eye of the law, put an end to the liability to pay maintenance, which, on grounds of high State Policy, is recognised and enforced by the statute. In fact in Clause 2 of Section 25, the draftsman has avoided the use of the words, "wife and husband" and used the words "either party". In Clause 3 of Section 25 reference is made to the party in whose favour an order has been made". If the same language had been used by the draftsman in Clause 1 of Section 25, there would have been no room whatsoever for the appellant to raise the hypertechnical contention that the application for maintenance by an ex -wife or ex -husband is not strictly maintainable on the terms of Section 25(1). Unfortunately this technical argument was accepted by a single Judge of the Gujarat High Court in Gunvantray v. Bal Prabh : AIR 1963 Guj 242 . Learned Counsel for the appellant placed great reliance upon this ruling. But a Division Bench of the same High Court has overruled this ruling in Dharmashi Premji v. Baisakar Kanji : AIR 1968 Guj 150 . I have no doubt that the proper construction of Section 25 is the one put upon it by the Division Bench of the Gujarat High Court.