MINARANI MAJUMDAR Vs. DASARATH MAJUMDAR

JUDGEMENT

(1.) This rule was obtained by the wife against an order refusing to allow her maintenance under Section 25 of the Hindu Marriage Act, 1955. The opposite party husband filed a petition under Section 13 of that Act praying for a decree of divorce. The petition was dismissed on l/-3-1960. Thereafter on May, 9, 1960, the petitioner wife launched an application praying for an order for her maintenance under Section 25. By an order dated August 12, 1950 me learned Judge dismissed the application on the ground that it was not maintainable. This rule is directed against the order dated August 12, 1950.

(2.) On behalf of the opposite party husband it is urged that since the payment of maintenance under Section 25 of the Hindu Marriage Act, 1955 must be limited to the period "while the applicant remains unmarried", the applicant under the section must satisfy the condition mat she or he is "unmarried", and as the petitioner has not obtained a decree of divorce or nullity, she is not unmarried, being still the married wife of the opposite party, ana consequently her application under Section 25 is not maintainable. I am unable to accept this contention. An order for separate maintenance under Section 25 may be passed in favour of a married woman living apart from her husband, e.g. on the passing of a decree of judicial separation or of the passing of a decree for restitution of conjugal rights in the event of the decree not being complied with, me expression "any decree" in Section 25 is broad enough to cover any decree of divorce or nullity or of judicial separation or for restitution of conjugal rights. The heading and the body of the section refer to "maintenance", "permanent alimony" and "payment of periodical sums" which under the English practice are respectively the names of allowances granted after the passing of a decree of divorce or nullity, a decree of judicial separation and a decree for restitution of conjugal rights, see Matrimonial causes Act, 1950, Sections 19, 20 and 22 and Rayden on Divorce, 8th Edition, page 707. The scheme of Sections 24, 25 and 26 of the Hindu Marriage Act, 1955 appears to be that the Court is vested with the power of passing orders tot maintenance of a spouse and for the custody, maintenance and education of minor children of the marriage during the pendency of any proceeding as also on the passing of any decree under Sections 9 to 14 of the Act. In a proper case the Court has, therefore, the power under Section 25 to pass an order for maintenance in favour of an applicant who is a married woman. The condition that tha maintenance is to be paid "while the applicant remains unmarried" is attached to every order for maintenance passed under Section 25. In the context of Section 25(l) the condition means "while the applicant is not remarried." This condition recalls to our mind the clause "dum sola et casta vixerit" which means "while she remains chaste and unmarried". Under the English practice, formerly, it was usual to attach those conditions to an order for maintenance of the wife after a decree of divorce or nullity, see Fisher v. Fisher, (1861) 2 Sw. and Tr. 410, but now the insertion of either condition has become the exception rather than the rule, Halsbury's Laws of England, Articles 983, 984 and Rayden on Divorce, 8th Edition, pages 74243. The rigid policy of Sec, 25 of the Hindu Marriage Act, 1955, however, is that 3 party in whose favour an order for maintenance is passed cannot claim any maintenance under the order if subsequently the party has re-married or has become guilty of sexual immorality; the Court has no discretion in the matter, upon the party's re-marriage the maintenance ceases and the Court must rescind the order. The Court is also bound to rescind the order on the party becoming guilty of sexual immorality as mentioned in the section. The word "unmarried" has several meanings. An interesting discussion of its meaning will be found in the case of Soleman Bibi v. East Indian Railway, 37 Cal WN 453: (AIR 1933 Cat 358 (2)). The popular mean of the word is "never having been married." Its dictionary meaning is "not married". Now the word "unmarried" in Section 25 (1) cannot mean "never having been married", because the applicant must have been a Husband or a wife and therefore must have been married; nor can it mean "not married"; for an order under Section 25 may be passed in favour of a married woman on the passing of a decree of judicial separation or for restitution of conjugal rights. In the context of Section 25(1) the word means "not re-married", for this reason Section 25(3) provides inter alia for rescission of the order if she has re-married. The reason for attaching the condition "while the applicant remains unmarried" to an 'order for maintenance passed in favour of a married woman after a decree of judicial separation or for restitution of conjugal rights may be mat the order will remain effective though she subsequently obtains a decree of divorce or nullity and becomes tree to marry again. The petitioner not having re-married was for purposes of Section 25 "unmarried' and her application cannot be dismissed on the ground that she was not unmarried.

(3.) On behalf of the opposite party husband it is next contended that as his petition under Section 13 for a decree of divorce was dismissed and as no decree as contemplated by Section 25 has been passed the application under Section 25 was not maintainable. This contention is sound and should be accepted. The power of any Court exercising jurisdiction under the Act to pass an order for maintenance arises "at the time of passing any decree or any time subsequent thereto". In the context of Section 25 the expression "any decree" means any of the decrees referred to in the earlier provision of the Act, i.e., any decree for restitution of conjugal rights, or of judicial separation, or of nullity of marriage, or of divorce passed under Sections 9 to 14 of the Act. When the main petition is dismissed and no substantive relief is granted under Sections 9 to 14 there is no passing of a decree as contemplated by Section 25 and the jurisdiction to make an order for maintenance under the section does not arise. I notice that the Gujarat High Court came to a similar conclusion in Harilal v. Lilavati.