In the Supreme Court of India Civil Appeal Nos.: 2653-54 of 1991 Citation: 1993 SCR (3) 954, 1993 SCC (3) 406 Appellants: Smt. Chand Dhawan Respondents: Jawaharlal Dhawan Decided on: June 11th, 1993 Bench: M.M. Punchhi and Yogeshwar Dayal Representatives of the Respondent: G.L, Saghi, P.P. Tripathi and Suchinto Chatterji Representatives for the Appellant: D.V. Sehgal and N.K. Aggarwal
Facts of the case:
- The parties to the case were a couple married since 1972 in Punjab. Three children were born from wedlock and were at present living with their father. Out of them, two were males born in 1973 and 1980, and the third was a female born in the year 1976.
- In 1985, a petition for divorce by mutual consent was filed in a court at Amritsar under Section 13B of the Hindu Marriage Act, 1955, but the appellant-wife alleged that she was not a consenting party to the divorce, and consequently, the petition was dismissed in 1987.
- An agreement was reached and she was out back into her matrimonial home, but these subsequent developments could only lead to a temporary truce.
- Three months later, the husband filed a regular divorce petition at Ghaziabad alleging adultery against his wife.
- The appellant-wife refuted the charges against her and the Court granted her maintenance of Rs. 1,000 a month. The husband did not agree to pay this amount though, and the divorce proceedings were stayed.
- In 1990 the appellant moved the District judge at Amritsar for the maintenance amount and was granted Rs. 6,000 as litigation expenses and Rs. 2,000 as maintenance pendente lite from the date of her application.
- The appellant wife also claimed permanent alimony and maintenance under S. 25 of the Hindu Marriage Act, 1955.
Arguments put forward:
- The right of awarding permanent maintenance in favor of the husband or the wife is dependent on the Court passing such decree as envisaged under Sections 9 to 14 of the Hindu Marriage Act.
- The marital status not being affected or disrupted by the proceedings in any matrimonial court under the Hindu Marriage Act, the claim of permanent alimony was not to be valid as ancillary or incidental to such affectation or disruption.
- Many cases were referred to in this instance, like Kadia Martial Purshotham v. Kadia Lilavati Gokaldas, Shantaram Gopalshet Narkar v. Hirabai, Minarani Majumdar v. Dasarath Majumdar, and Shantaram Dinkar Karnik v. Malti Shantaram Karnik.
- While sustaining her marriage and preserving her marital status, a Hindu wife’s claim to maintenance is codified in Section 18 of the Hindu Adoptions and Maintenance Act, 1956, and must necessarily be agitated under it.
- The court was not at liberty to grant relief of maintenance to the wife under one Act in proceedings under the other, as both the statutes were codified as were clear on their subjects.
- By the liberality of interpretation, inter-changeability is not permitted, as that would destroy the distinction on the subject of maintenance.
The learned justices heard the happenings in the case and referred to Sections 25 and 18 of the Hindu Marriage Act in order to dismiss certain claims made in the case.
Section 25 talks about permanent alimony and maintenance and states that:
(1) Any court exercising jurisdiction under this Act may, at the time of passing- any decree or at any time subsequent thereto, on an application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such cross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s income and other property, if any, the income and other property of the applicant, [the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.
(2) If the court is satisfied that there is, a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just. (3)If the court is satisfied that the party in whose favor an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, (it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just).”
Section 28 of the Act was also referred to and thus it becomes relevant to mention it too.
(1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of sub-section (3) be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction.
(2) Orders made by the court in any proceeding under this Act, under section 25 or Section 26 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.
(3) There shall be no appeal under this section on the subject of costs only. (4) Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order.”
The majority of the High Courts in the country back then took the view that those words indicated that an order for permanent alimony or maintenance in favor of either of the parties could only be made when a decree was passed granting any substantive relief and not in the case where the main petition itself is dismissed or withdrawn.
In the light of the aforementioned facts and provisions, the learned justices took the view that they agreed that applications under sections 24 and 25 of the Hindu Marriage Act would be dismissed and since the parties had not been able to make a joint statement within a period of six months of the original petition, the main petition under section 13B of the Hindu Marriage Act was also dismissed. The parties to the marriage did not want to proceed with their main application under section 13 of the Hindu Marriage Act and the same also stood dismissed and the parties were left to bear their own costs.
The court passed its verdict on the case the same day saying that the applicant and counsel for the parties had recorded their statements separately, and the main petition under section 13 and also applications under sections 24 and 25 of the Hindu Marriage Act stood dismissed as withdrawn. The parties, therefore, were left to bear their own costs.
Edited by: Purnima Ojha
- Kadia Martial Purshotham v. Kadia Lilavati Gokaldas AIR 1961 Guj 202
- Shantaram Gopalshet Narkar v. Hirabai AIR 1962 Bom 27
- Minarani Majumdar v. Dasarath Majumdar AIR 1963 Cal 428
- Shantaram Dinkar Karnik v. Malti Shantaram Karnik AIR 1964 Bom 83
Chand Dhawan v. Jawaharlal Dhawan 1993 SCR (3) 954, 1993 SCC (3) 406