MODILAL KALURAMJI JAIN Vs. LAKSHMI MODILAL JAIN

JUDGEMENT

(1.) THIS appeal raises a question as to whether a spouse having failed to secure a matrimonial relief, is entitled to a claim of permanent alimony under sub-section (1) if section 25 of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act of 1955" ).

(2.) THE trial Judge, in a proceeding initiated by the respondent-wife under section 9 of the Act of 1955 rejected the claim of the restitution of conjugal rights. However, the learned Judge by the impugned order dated 27-1-1988 granted permanent alimony in favour of the responded-wife. The respondent-wife did not question the correctness or legality of the order refusing to grant her restitution. However, the appellant-husband by instant appeal, challenged the order granting permanent alimony in favour of the respondent-wife.

(3.) THIS Court on 24-2-1988 admitted the appeal as presented by the husband. The main submission as convassed in the instant appeal is that term any decree as incorporated under sub-section (1) of section 25 envisages only affirmative decree and the decree refusing to grant matrimonial relief is not inclusive. Agarwal, J. , heard this matter. His Lordship summarised views expressed by the various Benches of this Court as thus: in the case of (Shantaram Dinkar Karnik v. Malti Shantaram) reported in A. I. R. 1964 Bombay page 83, Shah, J. , has held that the expression passing of any decree, only refers to the passing of any of the decree provided for in sections 9 to 13 of the Act. Although technically speaking, dismissal of a suit or a petition may be called a decree, such decree is not contemplated by section 25 (1) of the Act. In (Shantaram v. Hirabai) reported in 63 Bom. L. R. page 676, Patwardhan, J. , has observed that the husband-petitioner withdrew the matrimonial petition before hearing and if there is no decree, then this ancillary relief of permanent alimony and maintenance under section 25 (1) will not be available to the wife. In the case of (Manilal v. Bhanumati) reported in 1 (1987) D. M. C. page 205, Vaze, J. , has held that the spouse is entitled to a claim of maintenance even if the petition of the husband for divorce is dismissed. The Division Bench of this Court consisted of Vaidya and Lentin, JJ. , in the case of (Shakuntalabai v. Sahebrao) reported in 1976 Mh. L. J. 512 while considering the provisions of section 18 of the Hindu Adoption and Maintenance Act, 1956 (the Act of 1956) observed that the word decree could only mean a final order of adjudicating upon the rights of the parties to a petition under the Act of 1955 and, therefore, includes a decree dismissing the petition. Another Division Bench consisted of Nathwani and Naik, JJ. , in the case of (Chandrakant v. Nandana) in L. P. A. No. 118 of 1973 decided on 16th August, 1974, relying on the decision of Shah, J. , in the case of Shantaram cited supra, held that section 25 (1) requires an application for permanent maintenance to be made by a party and an order for the same can be made at the time of or subsequent to the passing of a decree. The Division Bench has observed that such a decree must be one granting substantive relief and not one dismissing the petition. His Lordship Agarwal, J. , also made a reference to the decisions in the case of (Vinod Chandra v. Rajesh Pathak) reported in A. I. R. 1988 Allahabad page 150, (Kadia Harilal v. Kadia Lilavati) A. I. R. 1961 Gujarat page 202, (Smt. Sushma v. Satish Chander) A. I. R. 1984 Delhi page 1, (Purshottam Kowalia v. Smt. Devki) A. I. R. 1973 Rajasthan page 3 and (Akasam China Babu v. Akasam Parbati) A. I. R. 1967 Orissa page 163. His Lordship Agarwal, J. , has expressed that there has been a conflict of views in respect of the construction of a term "any decree" under section 25 (1) of the Act of 1955. His Lordship, therefore, by an order dated 15th June, 1988 made a reference to the larger Bench.