(A) Hindu Marriage Act (25 of 1955) , S.25, S.11— Permanent alimony – Entitlement of spouse of void marriage – A spouse whose marriage has been declared void u/S. 11 of Act of 1955 is entitled to seek permanent alimony or maintenance from the other spouse by invoking S. 25 – Grant of relief u/S. 25 is discretionary depending on facts of case and conduct of parties.
AIR 1988 SC 644-DistinguishedAIROnline 2002 P and H 29-DistinguishedAIR 2005 SC 1809-Distinguished1993 AIR SCW 2548-Relied onAIR 2004 Bom 283 (FB)-Impliedly overruled
In the instant case, a reference was made to a bench comprising of three judges on the question whether alimony can be granted where marriage has been declared void .
Held, A spouse whose marriage has been declared void u/S. 11 of Act of 1955 is entitled to seek permanent alimony or maintenance from the other spouse by invoking S. 25 . Grant of relief u/S. 25 is discretionary depending on facts of case and conduct of parties.
While enacting S. 25(1), the legislature has made no distinction between a decree of divorce and a decree declaring marriage as a nullity. Therefore, on a plain reading of S. 25(1), it will not be possible to exclude a decree of nullity under S. 11 from the purview of S. 25(1) of the 1955 Act.
Sub-Section 1 of S. 25 uses the word “may”. A grant of a decree under S. 25 of the 1955 Act is discretionary. If the conduct of the spouse who applies for maintenance is such that the said spouse is not entitled to discretionary relief, the Court can always turn down the prayer for the grant of permanent alimony under S. 25 of the 1955 Act. Equitable considerations do apply when the Court considers the prayer for maintenance under S. 25.
(B) Hindu Marriage Act (25 of 1955) , S.24, S.11— Petition for declaration of marriage as void – Maintenance pendente lite – Whether can be granted – Even if a Court comes to a prima facie conclusion that marriage between parties is void or voidable, pending the final disposal of proceedings under Act, Court is not precluded from granting maintenance pendente lite provided conditions mentioned in S. 24 are satisfied – While deciding prayer for interim relief under S. 24, Court will always take into consideration conduct of party seeking relief, as grant of relief under S. 24 is always discretionary.
(C) Hindu Marriage Act (25 of 1955) , S.23— Decree in proceedings – Scope of the term – Discussed.
A decree in proceedings contemplated by S. 23 of the Act is a narrower concept. The decree referred to in S. 25 of the Act is the decree as contemplated by S. 23, which has the title ‘decree in proceedings’. On plain reading thereof, the decree contemplated by S. 23 is a decree granting relief under the Act. S. 23 deals with only the decrees granting reliefs under Ss. 9 to 13 of the 1955 Act. Considering the language employed in S. 23, the ‘decrees in proceedings’ will not include the decisions dismissing the petitions seeking reliefs under Ss. 9 to 13. The decrees passed under Ss. 11 to 13 bring about a change of status of the parties to the marriage. Even a decree of restitution of conjugal rights brings about a change of status of the parties in case there is no restitution of conjugal rights within one year of a decree. That is a ground for passing a decree of divorce under S. 13(1A)(ii). Even a decree of judicial separation under S. 10 brings about a change of status in the sense that a spouse who has got such a decree is no longer under an obligation to cohabit with his or her spouse. If the separation from the date of the decree continues for a period of one year, it becomes a ground for passing a decree of divorce by invoking S. 13(1A)(i).