RANGANATHAM Vs. SHYAMALA

JUDGEMENT

(1.) C.R.P. 1324 of 1986 converted into C.M.S.A. No.8 of 1988:- In view of the order passed in C.M.P. 12496 of 1988 this petition is converted into C.M.S.A. and disposed of accordingly. The only substantial question of law that arises in this appeal is whether the permanent alimony can be granted to wife u/S.25 of the Hindu Marriage Act, even though the main petition for annulment of marriage u/S.12 of the Act is dismissed.

(2.) According to the learned counsel for the appellant Mr. M.N. Padmanabhan that u/S.25 of the Hindu Marriage Act, a permanent alimony can be granted only when on the petition filed by either of the spouses u/Ss.9, 10, 11, 12 or 13 of the Act, a decree is passed and not in cases where the petition is dismissed. According to the learned counsel, only in cases where the marriage relationship comes to an end or altered, a permanent alimony can be granted and not in cases where the relationship of the marriage is subsisting and the remedy of the spouse is to proceed under the Hindu Adoption and Maintenance Act, 1956 for the relief of maintenance and not under the Hindu Marriage Act. In support of his contention, the learned counsel relied on various decisions reported in Shantaram Gopal Shet Narkar v. Hirabai, AIR 1962 Bom 27; Minarani Majumdar v. Dasarath Majumdar, AIR 1963 Cal 428; Shantaram Dinakar Karnik v. Malti Shantaram Karnik, AIR 1964 Bom 83; Akasam Chinna Basu v. Akasam Parbati, AIR 1967 Orissa 163 (DB); Purshotam v. Devki, AIR 1973 Raj 3; Gurucharan Kuar v. Ramchand, AIR 1979 Punj and Har 206; Darshan Singh v. Mst Daso, AIR 1980 Raj 102; Sushma v. Satishchandra, AIR 1984 Delhi 1; and Vinod Chandra Sharma v. Rajesh Pathak, AIR 1988 All 150. The ratio laid down in the above said decisions is to the effect that in the context of S.25 of the Act, the expression 'passing any decree' means any of the decrees provided for u/Ss.9, to 13 of the Act, and not the dismissal of a petition. But although technically speaking dismissal of a suit may be called a decree, such a decree is not contemplated u/S.25 of the Act. The learned counsel appearing on either side frankly conceded that there is no judgment of this Court on this question. However, the learned counsel for the appellant submitted that there is one decision of this Court u/S.37 of the Indian Divorce Act, reported in Devasahayam v. Devamony, (1923) ILR 46 Mad 133 wherein it was held as follows -

(3.) It is clear from the above two provisions that what is contemplated under S.37 of the Divorce Act, 1869 is materially different from the language used by the Legislature under S.25 of the Hindu Marriage Act, 1955, and that the decision rendered in Darshan Singh v. Mst. Daso, AIR 1980 Raj 102, cannot afford any guidance in construing the language used by the Legislature in S.25 of the Hindu Marriage Act, 1955. We are now concerned with the words "at the passing of any decree or at any time consequent thereto with regard to the grant of permanent alimony in favour of the defeated spouse". In this connection, it is worthwhile to refer to the various decisions relied on by the learned counsel for the appellant. In Akasam Chinna v. Parbati, AIR 1967 Orissa 163, a Division Bench of the said Court relying on the earlier decisions reported in Harilal Purushotham v. Lilavathi Gokaldas, AIR 1961 Guj 202, Shantaram Gopalshet v. Hirabai, AIR 1962 Bom 27; Shantaram Dinakar v. Malti Shantaram Karnik, AIR 1964 Bom 83, Minarani v. Dasarath, AIR 1963 Cal 428, held that the expression 'any decree' means passing of any of the decrees mentioned in Ss.9 to 14 of the Act and it does not include an order of dismissal and further the passing of an order of dismissal is not the same thing as passing of a decree and that therefore it cannot be regarded as the passing of a decree and permanent alimony cannot be granted to a party while dismissing the petition under the Act. In the decision reported in Smt. Sushma v. Satish Chandra, AIR 1984 Delhi 1, a Division Bench of the said Court, while considering the earlier decisions held as follows -