Report No. 136
4.11.1. Whether order granting maintenance to a respondent can be passed even whilst refusing relief claimed by the petitioner and dismissing his/her petition.-
Section 25 of the Hindu Marriage Act, 1955, confers jurisdiction on the court to pass orders for maintenance (on an application made by the spouse), at the time of passing any decree under that Act, or at any subsequent time. It provides:
"25. Permanent alimony and maintenance.-(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on 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 gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own 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 favour 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."
Many High Courts have taken the view that this power cannot be exercised where the petition for divorce is dismissed, because, according to these High Courts, the expression "decree is passed" is referable only to cases where a decree granting one of the reliefs under the Act is passed by the court. In other words, in the opinion of these High Courts, no order granting maintenance can be passed by a court whilst refusing any substantive relief under the Act and whilst dismissing the main petition as a result thereof. The High Courts which have propounded this view are:
(4) Punjab & Haryana,4 and
1. Minarani v. Dasarath, AIR 1963 Cal 428.
2. Kadin Harald v. Kadin Lilavati, AIR 1961 Guj 202.
3. Akasam Chinna Babu v. Akasam Parbati, AIR 1967 Ofi 163.
4. Gurcharan Kaur v. Ram Chand, AIR 1979 (I & II) 206.
5. Purshotam v. Smt. Devakai, AIR 1973 Raj 3.