PRAKASH Vs. ASHA @ JYOTI

JUDGEMENT

(1.) The parties to this appeal were married in the year 1976 as per Hindu rites. They did not have any issue. The relations became strained gradually leading to a caste panchayat where the parties agreed for mutual divorce. A deed was also drawn by the parties to that effect. Ultimately on 21-2-1984 a petition was presented jointly by them seeking divorce in terms of Sec. 13-B of the Hindu Marriage Act. After the presentation of the petition, the lower Court recorded the statement of the parties and then proceeded to pass the impugned order. By this order, the ]earned judge has accepted the application as genuine and has, therefore, passed a decree of divorce.

(2.) During the pendency of the matter before the lower Court, the wife/respondent here, made an application under Sec. 25 of the Act, for grant of permanent alimony. That application was opposed by the appellant whose contention seems to be that all rights and liabilities arising out of marriage were settled in Panchayat and, therefore, nothing remained to be paid either as alimony or otherwise. The lower Court recorded the statement of the parties in which they also made statement about the income of the appellant and also the properties including the cash which was received by the respondent in that Panchayat. The deed of divorce was also filed. On the material, the lower Court has awarded a sum of Rs. 500.00 per month as alimony to the respondent/wife under Sec. 25 of the Act.

(3.) In this appeal by the husband, the decree of divorce is not questioned and it has now become final. What is questioned is the order granting permanent alimony. The contention is that no inquiry was made in terms of Sec. 25 of the Act. In fact, what the learned counsel says is that the parties were never alive to any inquiry in that behalf and the statements which were made were in fact obtained by the Court as to his satisfaction towards the genuineness of the mutual divorce. In my opinion, these contentions have substance and must be upheld. The reply filed by the appellant to the application under Sec. 25 itself shows that he has contested that application on many counts. His contention seems to be that all rights and liabilities were decided in the Panchayat. A deed containing all the terms of the agreement was executed and that has been tiled. It has also been stated in the reply that the income is not as alleged by the respondent but is far too low. All these contentions have to be investigated before any order either one way or the other could be passed Shri S.C. Jain for the respondent submitted that the statements of the parties also contain averments as to the capacity of the appellant to pay. No doubt it is true that the respondent had made statements as to the appellant's income and the appellant had made statements as to that which the respondent received during that Panchayat. All the same, I am not satisfied that the statements were recorded with a view to inquire into that application under Sec. 25 of the Act. Precisely for this reason, there is no finding if what was paid to the respondent was paid towards the entire satisfaction of her claim including the claim under Sec. 25 of the Act. For that reason that part of the impugned order granting alimony to the respondent at the rate of Rs. 500.00 per month as to be set aside.