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Report No. 136

4.11.5. Reasons.-

The five High Courts which have formed the opinion that the court has no power to grant maintenance in a case where the main petition of the petitioner is dismissed have been impressed by the argument that when the main petition is dismissed, it cannot be said that a decree has been passed within the meaning of section 25 of the Act. Says the Gujarat High Court in Kadia Harilal v. Kadia Lilavati, AIR 1961 Guj 202.:

"In our view, the passing of an order of dismissal of a petition could not be regarded as the passing of a decree within the meaning of this section. The word "any" which precedes the word "decree" has been used having regard to the various kinds of decrees which may be passed under the provisions of the Act. A decree may be a decree for restitution of conjugal rights. It may be a decree for judicial separation. It may be a decree of nullity of marriage. It may be a decree of divorce. At the time of passing any such decree or at any time subsequent thereto, orders can be made as provided in the section.

In our view, the language used by the legislature in section 25 is such that the power thereby conferred could only be exercised at the time of passing of any of the decrees referred to in the earlier provisions of the Act or any time subsequent thereto. We are supported in this conclusion by an unreported decision of Chief Justice S.T. Desai and Justice Bakshi given on 28th November, 1960 in First Appeal No. 178 of 1960 (Guj). In that case, it has been laid down that section 25 relates only to an ancillary relief which is incidental to the substantive relief that may be granted by the Court, though the incidental relief may be given to other party."

[Emphasis added]

It is this reasoning which has found favour with all the aforesaid five High Courts and with the learned Single Judge of the Bombay High Court in Shantaram's case.1 The contrary view, however, is founded on the following reasoning which appealed to the Andhra Pradesh High Court,2 viz.:

"The intention of the legislature is clear that inasmuch as the matrimonial Court has been seized of the matter and has gone into the merits of the controversy between the parties and knows who had committed the wrong and where the justice lay should be empowered to make an order of permanent alimony. The passing of any decree includes passing of dismissal of the petition and the decree may be a decree allowing the petition or dismissing the same.

The words "any decree" take in both kinds of decrees. Otherwise, the words will not be "any decree" but merely "a decree". Besides there is no meaning in allowing the parties to go to some other Court and start back once again after they have done it before the matrimonial Court which knows their respective strength and can be expected to do justice especially when the Court is one of the Superior Courts in the Country being a District Court or its equivalent."

1. Shantaram Narkar v. Hira Bai, AIR 1962 Bom 27.

2. S. Jagannadha Prasad v. Snit. S. Lalitha Kumari, AIR 1989 AP 8.

[Emphasis added]

In the opinion of the Commission, the Andhra Pradesh High Court has rightly stressed the aspect that an order passed by a court dismissing the main petition constitutes a decree and the expression "any decree" employed by the Legislature in section 25 is wide enough to cover a decree granting the relief as well as a decree refusing the relief, for a decree refusing the relief is also a "decree passed by the court". The expression "at the time of passing the decree" employed by the Legislature in section 25 of the Act cannot be equated with the expression "any decree granting one of the reliefs under the Act."

If the Legislature intended to confer the power on the court only whilst granting a relief, the Legislature would, have used the expression "any decree granting a relief" instead of employing the expression "at the time of passing any decree". The contrary view is an extremely narrow view which would prove counter-productive and would defeat the very purpose of conferring the power on the court to grant maintenance. Because, if the court was passing a decree giving relief to one of the spouses, say, of "restitution of conjugal rights", the court would be doing so on the ground that the other spouse has no lawful excuse for staying separate.

In the event of reaching such a conclusion, there would possibly be no occasion for awarding maintenance in favour of the spouse found to be at fault whilst granting a decree for restitution of conjugal rights in favour of the petitioner. So also if the court was granting a decree for "judicial separation" in favour of the petitioner, the court would be doing so on the promise that the petitioner had lawful ground for staying separate from the respondent. In that event also, while passing a decree for restitution in favour of the petitioner, there would possibly be no occasion for awarding maintenance to the respondent spouse who was found to be at fault.

The same would be the position in a matter where the court upholds the claim of the petitioner for a decree of nullity. There would be no occasion to award maintenance whilst upholding the claim of the petitioner that the marriage was a nullity, say, on the ground that a fraud had been practised. Thus there would hardly be an occasion to award maintenance whilst granting relief to the petitioner and allowing his or her petition. Surely, the Legislature was not conferring this power for ornamental purposes when in most of the cases there would be no occasion to exercise the power.

Regardless of whether the petitioner was granted, the relief of a decree for "restitution of conjugal rights" or "judicial separation" or "nullity" or whether he was refused such a relief, the respondent could not pray for award of maintenance. In case the petitioner succeeded and the decree was passed in his or her favour, the respondent, being a spouse at fault who had no right to stay separate and claim maintenance, could not possibly claim maintenance. In the event that the petitioner failed, since the court was not passing a decree granting relief, the respondent would not be entitled to pray for maintenance. In either event, therefore, the respondent would not be entitled to claim maintenance.

It would mean that such a power could perhaps be exercised only whilst granting a decree for divorce and in no other case. Such an interpretation of the expression "at the time of passing a decree" would, therefore, be virtually tantamount to rendering the matrimonial court powerless to do justice by awarding maintenance even in a case where the respondent spouse was the wronged party and was entitled to stay separate and claim maintenance. As pointed out by the Andhra Pradesh High Court, the respondent spouse would have to initiate proceedings tinder section 125 of the Code of Criminal Procedure or under section 18 of the Hindu Women's Adoptions and Maintenance Act.

The result would be that a wronged spouse would be driven to another court, involving expenditure of considerable time and money and resulting in considerable misery to the said spouse. It would also be counter-productive to create a situation which results in multiplicity of proceedings besides distress to the wronged spouse and divests the court of the power to do justice between the parties in the very proceeding before the very court.

In any view of the matter, therefore, it is appropriate to resolve the conflict by adding an Explanation to sub-section (1) of section 25 providing that the power may be exercised regardless of whether the court granted the relief claimed by the petitioner or whether the court refused any substantive relief under the Act to the petitioner and dismissed his or her petition either on merits or by reason of the petitioner withdrawing the petition or the same being dismissed for non-prosecution.



Conflicts in High Court Decisions on Central Laws - How to Foreclose and how to Resolve Back




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