MUKESH MATHUR Vs. VEENA MATHUR

JUDGEMENT

(1.) This is an appeal against the judgment of the Family Court, Jaipur on a petition for divorce filed by the appellant husband. The husband has been granted divorce on the ground that the wife is suffering from mental disorder u/s. 1391)(iii) of the Hindu Marriage Act, 1955. While granting divorce on this ground, permanent alimony at Rs. 350/- p.m. has also been granted to the wife u/s. 25 of the Act. The appellant husband is aggrieved only by the grant f permanent alimony, while the wife has made no grievance against any part of the Family Court's judgment. The only question, therefore, is whether there is any ground to interfere with the award of permanent alimony to the wife u/s. 25 of the Act while granting divorce to the husband on the ground of wife's mental disorder.

(2.) The contentions of the learned counsel for the appellant are two. The first contention is that the wife was suffering from mental illness even prior to the marriage on 21-01-83 and, therefore, the marriage was voidable being in contravention of the condition in clause (ii) of S.5 of the Act, and it could be annulled by a decree of nullity under S.12 of the Act. On this basis, it was argued that this is sufficient reason to indicate that no permanent alimony u/s. 25 of the Act could be awarded. We are unable to accept this contention in the facts and circumstances of the present case. The reason is obvious. It is not a case where the marriage has been annulled by a decree of nullity under S.12 on the ground that it was in contravention of the condition specified in Cl. (ii) of S.5 of the Act. On the other hand, in this case, the husband applied for divorce on one of the grounds contained in sub-sec. (1) of S.13 of the Act treating the marriage to be a valid marriage. This alone is sufficient to reject such an argument. This being the position. S.25 of the Hindu Marriage Act providing for grant of permanent alimony is clearly attracted with the result that the grant of permanent alimony thereunder was within the discretion of the court while granting the decree for divorce. The only question, therefore, is about the quantum of permanent alimony.

(3.) The other contention of the learned counsel for the appellant is that the award of Rs. 350/- per month as permanent alimony to the wife is excessive in the circumstances of the case. He argued that the conduct of parties and the other circumstances of the case do not justify the award of this amount and the proper amount to award is much less. According to him, the fact of wife's earlier mental illness was withheld from the appellant before the marriage and the financial status of the appellant is not such as to enable him to pay this amount out of his earnings. There can be no doubt that the conduct of the parties and other circumstances of the case are to be taken into account while exercising the discretion to grant permanent alimony u/s. 25 of the Act. We find from the record that the appellant had met his wife before he accepted the proposal of marriage with her. This being so, the appellant had the opportunity to meet and talk to his wife before he accepted the proposal of marriage. It cannot be said that the respondent-wife was guilty of any matrimonial offence or any blameworthy conduct and the ground for granting the decree of divorce is also not such. This being so, the exercise of discretion is granting permanent alimony must depend on propriety and moral justice. This is a case in which the respondent-wife cannot be blamed for the marriage ending in a divorce. The husband himself did not choose to apply for a decree of nullity on the ground that the marriage was in contravention of the condition specified in Cl. (ii) of S.5 of the Act, because the wife was suffering from mental disorder even prior to the marriage. This conduct of the husband indicates that the husband himself did not believe that the wife was suffering from mental disorder prior to the marriage. He applied for and obtained divorce on the basis that the marriage was valid. In view of this position, it would not be just and proper to take into consideration the alleged earlier mental illness of the wife as a circumstance for determining the amount of permanent alimony. We must proceed on the basis that the mental disorder on which ground decree for divorce has been granted was not in existence prior to the marriage. In these circumstances, there can be no occasion to refuse to grant permanent alimony since exercise of discretion u/s. 25 of the Act cannot justify a total refusal to grant any permanent alimony. The question now is only of the quantum.