VINOD CHANDRA SHARMA Vs. RAJESH PATHAK

JUDGEMENT

(1.) This first appeal from order, passed by Mr. R.S. Tripathi, the then Vth Additional District Judge, on 19-1-84, in Misc. Case No. 39 of 1983, is directed against an order granting permanent alimony under S.25 of the Hindu Marriage Act, 1955, to the respondent.

(2.) Briefly stated, the proceedings for a decree of divorce were going on in the court below between the parties at the instance of the husband Vinod Chandra Sharma. The learned Additional District Judge dismissed the petition for divorce on 19-1-84 and by the present impugned order of the same date he passed the order granting Rs. 350/- per month as permanent alimony in favour of the wife and against the husband. It is contended that this order is patently illegal and cannot be allowed to stand.

(3.) I have heard the learned counsel on both the sides. Permanent alimony and maintenance under S.25 of the Hindu Marriage Act can only be granted if divorce is granted but not during the subsistence of the marriage. The word 'decree' is used in matrimonial cases in a special sense different from that in which it is used in the Civil P.C. The use of the word 'decree' in S.25 of the Hindu Marriage Act means the passing of the decree of divorce, restriction of conjugal rights or judicial separation and not the passing of a decree through which the petition itself is dismissed because if the petition fails then no decree is passed. In other words, in such cases decree is denied to the applicant. Obviously alimony cannot, therefore, be granted in a case where a decree for divorce is refused because in such a case the marriage will subsist.