The Madhya Pradesh High Court has held that the fact that a decree of divorce has already been passed does not, by itself, preclude a spouse from seeking permanent alimony under Section 25 of the Hindu Marriage Act. [2026 LiveLaw (MP) 357]

The Court accordingly held that the matrimonial court is competent to consider an application for permanent alimony even after the divorce decree.

The bench of Justice Ramkumar Choubey held:

"In view of the aforesaid legal position, the fact that a decree of divorce has already been passed does not, by itself, preclude the appellant from seeking the relief of permanent alimony under Section 25 of the Hindu Marriage Act. The learned matrimonial Court is competent to consider such application and pass an appropriate order in accordance with law, after taking into consideration the relevant factors contemplated under Section 25 of the Hindu Marriage Act". 

The case arose from a miscellaneous appeal filed by the wife against an order dated July 5, 2016, whereby the District Court had dismissed her application under Order IX Rule 13 of the Code of Civil Procedure seeking to set aside an ex parte judgment and decree passed in the matrimonial proceedings.

Before the High Court, the wife's counsel submitted that the husband had already remarried after obtaining the decree of divorce. The wife was no longer interested in pursuing the matter insofar as the divorce decree was concerned, but contended that the matrimonial court had not considered the question of alimony in her favour. She therefore sought an opportunity to pursue her claim for permanent alimony.

The counsel for the husband argued that he has already given some property to the girl child and is also paying ₹5,000 per month under Section 125 CrPC. The husband contended that if the wife is not challenging the divorce decree and is seeking only an order for alimony, she may proceed independently before the matrimonial court. 

The High Court noted that the matrimonial proceeding was filed by the husband against the wife under the Hindu Marriage Act, which culminated in an ex parte decree. The wife thereafter filed an application seeking to set aside the said ex parte order, but the same was dismissed through the impugned order. 

It observed that since the wife was no longer interested in prosecuting the matter insofar as the divorce decree was concerned, there was no need to remit the case for restoration or further adjudication of the divorce proceedings. However, the Court noted that the question of alimony had not been considered while passing the decree.

The Court then examined Section 25(1) of the Hindu Marriage Act, which permits a court exercising jurisdiction under the Act to grant permanent alimony and maintenance “at the time of passing any decree or at any time subsequent thereto”, on an application made by either the wife or husband.

Referring to its earlier decision in Surajmal Ramchandra Khati v. Rukminibai d/o Prabhulal, the Court observed that the expression “on application made to it” cannot be interpreted in a narrow or technical manner. The provision is intended to protect the interests of the spouse against whom a decree has been passed.

The bench emphasized that the provision is intended to protect the interests of the spouse and therefore, 

"It does not necessarily mean that in every case the spouse seeking permanent alimony is required to present a separate formal application for that purpose". 

Further referring to the case of Patel Dharamshi Premji v Bai Sakar Kanji [Gujarat High Court 1967], the bench reiterated that an application seeking incidental relief of permanent alimony may be made in the main proceedings before or at the time of passing the decree granting substantive relief.

The bench highlighted that the statute itself contemplates consideration of permanent alimony even subsequent to passing the decree. 

Thus, the court granted liberty to the wife to file an application under Section 25 of the Hindu Marriage Act before the Matrimonial Court and disposed of the appeal. 

Case Title: UB v LB, MA-2136-2016

Citation: 2026 LiveLaw (MP) 357

For Wife: Advocate Pradeep Kumar Naveria

For Husband: Advocate Rahul Kumar Tripathi

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