Husband can also invoke provision for maintenance/ permanent alimony under Hindu Marriage Act

Husband can also invoke provision for maintenance/ permanent alimony under Hindu Marriage Act

Bhagyashri Jaiswal Vs Jagdish Sajjanlal Jaiswal and Anr

Bombay High Court

26/02/2022

WRIT PETITION NO. 2527 OF 2021

About/from the judgment:

The High Court recently declined to interfere with a Nanded court's orders directing a school teacher to pay interim maintenance to her ex-husband, who claimed to have no sources of income.

While doing so, the court held that the provisions relating to maintenance and permanent alimony under the Hindu Marriage Act can be invoked by the needy spouse which can also be the husband.

"The provision of maintenance / permanent alimony being a beneficial provision for the indigent spouse, the said section can be invoked by either of the spouse, where a decree of any kind governed by Sections 9 to 13 has been passed and marriage tie is broken, disrupted or adversely affected by such decree of the court," the High Court held.

The man and lady involved in the case, had gotten married in 1992. The wife eventually filed for divorce on the grounds of cruelty and desertion, and the Nanded court approved the divorce in 2015.

The husband then petitioned a lower court for permanent alimony from the wife to the tune of ₹15,000 per month. The husband claimed that he had no source of income, although the wife had earned an MA and a BEd and was employed in a school.

The woman objected to the petition in the lower court, telling the court that her husband managed a grocery store and also made money by leasing out his auto-rickshaw. She disputed that the spouse was reliant on her. She argued that the husband's claim for maintenance should be dismissed, with costs of ₹10,000, citing a daughter born out of wedlock who is reliant on the wife.

"The provision of maintenance / permanent alimony being a beneficial provision for the indigent spouse, the said section can be invoked by either of the spouse."

In 2017, the lower court had ordered the woman to pay ₹3,000 per month as support pendente lite to her husband from the date of filing till the petition was dismissed.

In 2019, a similar order was issued, asking the school's headmaster to deduct ₹5,000 from wife's monthly paycheck and deliver the amount to court as arrears after she refused to pay her husband.

Both orders were challenged by the woman in a writ petition before the High Court.

It was the contention of the wife that proceedings for permanent alimony and maintenance under Section 25 of the Act were not maintainable since the marriage had been dissolved.

She placed reliance on the wording used in the Section - “husband or the wife” to argue that on dissolution of marriage, an application for maintenance cannot be entertained.

It was contended that directing the wife to pay maintenance to the husband after dissolution of marriage by a decree of divorce, would amount to traversity of justice and once the relationship between the husband and wife is severed by a decree of divorce, there cannot be any claim made by anyone of them against each other.

The husband submitted that the provision contained in Section 25 does not depend upon the outcome of the relationship subsequent to divorce, since the Section uses the word “at any time subsequent thereto” and therefore, the embargo that the applicant as the husband, after dissolution of marriage cannot be denied, the benefit flowing from Section 25.

The High Court held the husband's plea for interim maintenance under the Hindu Marriage Act of 1955 was correctly entertained by the lower court and the husband was found to be entitled to interim maintenance while the procedures under Section 25 (Permanent alimony and maintenance) were ongoing.

"The words applied in Section 25 of the Act of 1955 permit any court exercising jurisdiction under this Act, i.e. under Sections 9 to 13, at the time of passing any decree or at any time subsequent thereto, on an application made to it, by either of the spouse pay to the applicant for her/his maintenance, either gross sum or monthly or periodical sums for not exceeding the life of the applicant, having regard to the income and the other property, etc," the Court held

The term used 'at any time subsequent thereto' cannot be made redundant, by giving constricted meaning to the words 'wife or husband, applied in Section 25, the Court made it clear.

"It is open for the court to decide the application filed by the husband under Section 25 of the 1955 Act, seeking monthly maintenance, by way of final proceedings, pending which, the application for interim maintenance filed under Section 24 of the Act of 1955, has been rightly entertained by the learned Judge and the husband has been held entitled to interim maintenance while the proceedings under Section 25 are pending," she noted.

She, therefore, opined that both the impugned orders warranted no interference and dismissed the writ petition by upholding them.

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