OM PRAKASH GUPTA Vs. ASHA DEVI

JUDGEMENT

(1.) WITH consent of the counsel, the appeal itself was taken up for final disposal when the interlocutory application was moved.

(2.) THIS appeal is by the husband. The appellant challenges the order passed by the Principal Judge, Family Court, Dhanbad in an application under Section 25 of the Hindu Marriage Act, 1955 (the Act) filed by the wife. The parties got married on 17-5-1989. The husband applied for divorce and as per Matrimonial Suit No. 11 of 1995 obtained a decree for divorce on 23-1-1988 on the ground of desertion by the wife. It is said that the husband subsequently remarried and has got a child in that wedlock. The present application was filed by the divorced wife invoking Section 25 of the Act and pleading that she had no means of livelihood; that she has been residing with her widowed mother and no alimony was granted while granting the decree for divorce and that she was entitled to alimony. She claimed alimony at the rate of Rs. 5000/- per month on the basis that her former husband was employed as Driver in the Railways and his salary was Rs. 15,000/- per month. The divorced husband, in addition to questioning the maintainability of the application also contended that the wife was not entitled to maintenance since she led an unchaste life and that she had other means of livelihood and did not need the payment of any alimony for her sustenance. It was also contended that the salary of the husband was around Rs. 12,000/- per month and he had to maintain the subsequently married wife and child and also the joint family consisting of his brothers and sisters. It was further submitted that the quantum claimed by the wife was too high in any event.

(3.) THE learned counsel for the appellant contended that the application under Section 25 of the Act was not maintainable; that the wife has not shown that she is entitled to claim alimony in terms of Section 25 of the Act; that in any event, the quantum is too high and the award of litigation expenses was uncalled for since she had not even claimed such expenses. The learned counsel for the respondent on the other hand submitted that the application was perfectly maintainable. The evidence clearly disclosed that the divorced wife had no other means of livelihood and she was living with her widowed mother and, in the circumstances, there is no reason to interfere with the finding of the lower Court. The quantum fixed was reasonable and there is no justification in interfering with the same. As regards the cost of litigation, though there was no prayer in the petition for awarding the costs of litigation, after all it was in the discretion of the trial Court and there was no reason why this Court should interfere with that part of the decree.