D.B. Civil Miscellaneous Appeal No. 4700/2016. Case: Poonam Joshi Vs Archana Joshi. Rajasthan High Court

Case Number:D.B. Civil Miscellaneous Appeal No. 4700/2016
Party Name:Poonam Joshi Vs Archana Joshi
Counsel:For Appellant: Sanjay Mehrishi and Timan Singh, Advs. and For Respondents: Arvind Bhardwaj, Adv.
Judges:Navin Sinha, C.J. and Vijay Kumar Vyas, J.
Issue:Hindu Adoptions and Maintenance Act, 1956 - Sections 18, 18(1); Hindu Marriage Act, 1955 - Sections 13, 13B, 23, 24, 25, 28, 9, 10, 11, 12, 13
Judgement Date:February 09, 2017
Court:Rajasthan High Court
 
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Order:

Navin Sinha, C.J.

  1. The present appeal arises from order dated 20.07.2016 passed by the Family Judge, Jhalawar allowing Miscellaneous Case No. 230/2012 granting permanent alimony under Section 25 of the Hindu Marriage Act, 1955 (hereinafter called the 'Act') notwithstanding the dismissal of the divorce application preferred by the Appellant.

  2. Learned Counsel for the Appellant submits that if the application for divorce preferred by the Appellant had been dismissed, the question for grant of permanent alimony under Section 25 of the Act does not arise. It is only when a decree is passed under any of the provisions of Section 9 to 13 of the Act, can permanent alimony be granted. Reliance is placed on AIR 2005 Supreme Court 422 (Ramesh Chandra Rampratapji Daga vs. Rameshwari Ramesh Chandra Daga) and AIR 1973 Raj. 3 (Purshotam Kewalia Vs. Smt. Devki). The second submission is that dismissal of a suit for divorce does not amount to a decree within the meaning of Section 23 of the Act.

  3. Counsel for the Respondent submits that the order granting permanent alimony suffers from no infirmity. It follows AIR 1988 Rajasthan 12 (Sukhdev Vs. Santos) which itself relies on AIR 1991 Bombay 440 (Modilal Kaluramji Vs. Laxmi Modilal Jain) holding that the words "any decree" in Section 25 of the Act would include the rejection of a divorce application also. The order of the Family Judge therefore calls for no interference.

  4. Alternatively it was submitted that if the application under Section 25 of the Act is held not to have been maintainable, the Court has ample powers to treat the application as one under Section 18 of the Hindu Adoption and Maintenance Act, 1956 (hereinafter called the 'Adoption and Maintenance Act') to prevent multiplicity of proceedings on the same issue between the same parties as the Respondent cannot be denied the claim to maintenance. The Object of both the Acts is beneficial as they seek to protect the interest of an estranged wife who may have no source of income or survival. A construction which advances the purpose rather than a stultified and narrow interpretation should be given as otherwise the Respondent will stand to be seriously prejudiced in having to again pursue fresh litigation with all its necessary concomitants of time and money.

  5. The next submission was that any erroneous description of the provision of law in the application seeking maintenance should not be allowed to prejudice the claim so long as the power exists to grant maintenance in one or the other law for the purpose of advancing justice and...

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