The Allahabad High Court has held that a claim for permanent alimony under Section 25 of the Hindu Marriage Act, 1955 must ordinarily be made in writing, either by a separate application or by a demand carried in the written statement.

It held that an oral prayer can be entertained only in the exceptional case where the Court is not required to decide either the entitlement to permanent alimony or its quantum.

Section 25 of the Hindu Marriage Act, 1955 empowers a court exercising jurisdiction under the Act, at the time of passing any decree or at any time afterwards, to order maintenance and support for the wife or the husband on an application made to it, having regard to the income and other property of both parties, the conduct of the parties and the other circumstances of the case.

The bench of Justice J.J. Munir and Justice Indrajeet Shukla framed the question as a point of determination and recorded that it could not find any authoritative pronouncement of the Allahabad High Court on it. The Court held,

“From a plain reading of the statutory mandate contained under Section 25 of the Act, 1955, it is as clear as daylight that at least an application demanding permanent alimony is required and is the mandate of the statute. The said request may be either be carried in the written statement or made by separate application.”

Parties were married on 11.02.2005 at Agra according to Hindu rites and lived together at Delhi from 20.02.2005 to 21.09.2006. The husband filed a petition under Section 13 of the Act seeking dissolution of the marriage on the grounds of cruelty and desertion. The wife filed a petition under Section 9 of the Act seeking restitution of conjugal rights. By a common judgment and decrees dated 18.05.2012, the Family Court allowed the divorce petition and dismissed the petition for restitution.

The wife appealed under Section 19 of the Family Courts Act, 1984.

On desertion, the Court held that the ground was not available to the husband at all. His own pleadings and evidence showed that the wife had left the matrimonial home on 21.09.2006 at his request, and the divorce petition was presented on 26.09.2006, within five days of that date. Section 13(1)(ib) requires desertion to have continued for not less than two years immediately preceding the presentation of the petition, and that requirement was not satisfied.

The Court also found nothing on record to show an intention on the wife's part to bring the matrimonial relationship permanently to an end, and noted that her attempt to resume cohabitation in 2007 told against any such intention.

On cruelty, the Court declined to interfere. It observed that where physical assault takes place within the matrimonial home, independent evidence may not ordinarily be available and the testimony of the spouse subjected to such conduct may be the principal evidence, and that a spouse may refrain from seeking immediate medical examination in order to spare the family public embarrassment.

Nothing material had emerged in the cross-examination of the husband to discredit his testimony, and the finding recorded by the Family Court was not perverse or contrary to the weight of the evidence on record, held the Court.

The Court held that the dowry proceedings pending against the husband could not by themselves amount to cruelty, the allegations in them being still to be tried.

“The mere institution or pendency of criminal proceedings cannot, without more, be treated as proof of their falsity or as a circumstance constituting matrimonial cruelty.”

The Court further held that the Family Court had erred in treating irretrievable breakdown of marriage as a ground for divorce, no such ground being recognised under Section 13 of the Act. The decisions of the Supreme Court on which the Family Court had relied were rendered in exercise of the power under Article 142 of the Constitution.

The Court observed that Article 142 is not a law-declaring provision like Article 141, and orders passed under it bind the parties but do not necessarily operate as precedent. It held that the power is available neither to the trial judge nor to the Court sitting in first appeal.

After arguments were concluded, counsel on both sides stated on instructions that, the decree of divorce having been passed about fourteen years earlier and the parties having lived apart since 21.09.2006, for nearly twenty years, the ends of justice would be served by the grant of permanent alimony to the wife, without irretrievable breakdown being recognised as an independent ground of divorce.

It noted that no written application for permanent alimony had been filed and no such claim had been made in the written statement; the prayer was made orally. The Court observed that what Section 25 confers is not merely a statutory entitlement.

“The right to permanent alimony, as contemplated under Section 25 of the Hindu Marriage Act, 1955, is not merely a statutory right but is closely connected with the fundamental right to life and, in particular, the right to live with dignity.”

Turning to the decisions of other High Courts, the Court noted the view taken in Vijayashree v. Dr. Nishant Arvind Kale that the word used in Section 25 does not specify whether the application must be oral or in writing, and the Division Bench ruling in Ghanshyam Baser v. Jyoti, which held that permanent alimony could not be granted without a demand in the written statement or by a separate application.

Explaining why an application is required, the Court said that fixing the quantum calls for consideration of the income, expenditure, liabilities and means of the parties, that neither side should be taken by surprise and both should be able to lead oral and documentary evidence. It held that amounts already awarded as maintenance, whether under Section 125 CrPC, Section 24 of the Act, Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or Section 20 of the Protection of Women from Domestic Violence Act, 2005, may have to be set off against the final determination so that the several channels of maintenance are streamlined.

“In absence of written application preferred under Section 25 of the Act, 1955, it would be almost impossible to adjudicate upon the quantum of permanent alimony”

The Court concluded,

“Thus, we conclude that the filing of a written application for the adjudication of a claim of permanent alimony and inviting objection, allowing oral and documentary evidence is the rule and in exceptional cases oral prayer can also be entertained by the Court where the Court is not required to adjudicate in relation to the quantum and entitlement of permanent alimony.”

On a pointed query from the Court, both counsel affirmed that they had instructions on entitlement as well as quantum and that the parties were ad idem on a figure of Rs. 9 lakhs. The Court accordingly awarded Rs. 9 lakhs to the wife as permanent alimony in lump sum, to be paid within three months through a demand draft.

Maintaining the decree of divorce on the ground of cruelty alone under Section 13(1)(ia) of the Act and concurring with the dismissal of the petition for restitution of conjugal rights, the Court disposed of the appeal.