Ailimony
Amit Minocha
(Querist) 20 March 2013
This query is : Resolved
can any lady claim alimony u/s 25 HMA after decree of divorce by mutual consent is passed on second motion?
In one of the matters after 2 months of divorce by mutual consent, the girl has filed an application before the Family Courts seeking payment of alimony.
Devajyoti Barman
(Expert) 20 March 2013
Yes, she can. There is no bar and legal rights can not be waived.
V R SHROFF
(Expert) 20 March 2013
She have to prove change of circumstances u/s 25 HMA . Consent term is binding, but court can modify consent terms & condition to meet end of justice.
prabhakar singh
(Expert) 20 March 2013
Section 25 provides for permanent alimony and maintenance, and reads as follows:
"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, while the applicant remains unmarried, 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 and the conduct of the parties, it may seem to the Court to be just, and any such payment may be secured, if necessary by a charge on the immovable, properly of the respondent ......"
It is important to note the words "at the time of passing any decree or at any time subsequent thereto" used in the above section. It is also important to note the words "on application made to it for the purpose by either the wife or the husband as the case may be". If is also important to note the words "order that the respondent shall, while the applicant remains unmarried, pay to the applicant".
The expression "while the applicant remains unmarried" does not mean that the section is restricted to cases where the applicant is unmarried at the date of the application or at the date of the order for permanent alimony. The word "remains" is very important. The expression "while the applicant remains unmarried" would only snow the nature of the order to be passed. While passing the order for permanent alimony the period of applicability of the order should be restricted to the period while the applicant remains unmarried, if she was unmarried at the time of the order. While construing this, expression, we must not ignore the word 'remains' in the expression 'remains unmarried'. The applicability of the order should be restricted to the period while the applicant remains unmarried. In other words, where the marriage has been dissolved by a decree of divorce or annulled by a decree of nullity, the applicability of the order for permanent alimony should be restricted to the period during which the applicant remains unmarried.
Section 25 therefore applies to all kinds of proceedings under the Hindu Marriage Act of 1955, whether they are proceedings for judicial separation or for restitution of conjugal rights or for dissolution of marriage by divorce or for annulment of marriage by a decree of nullity. But in the last two types of proceedings Section 25 provides that the order passed under Section 25 should order the respondent to pay only while the applicant remains unmarried. That is a restriction to be placed while passing the order for permanent alimony.
The expression "while the applicant remains unmarried" does not cut down the scope of Section 25 and restrict the application only to the last two types of proceedings.
But it can not be gainfully said that in view of this expression an application may be made subsequent to the decree by a person whose marriage has been dissolved or annulled.Section 25 contemplates the passing of an order for permanent alimony either at the time of passing any decree or at any time subsequent thereto.But the section further provides that the application made for the purpose must be by either the "wife or the husband". If the order for permanent alimony or maintenance is to be made at the time of passing the decree, the applicant is bound to be the husband or wife as the case may be, because the proceedings under the Act have not terminated in a decree for dissolution or annulment of marriage. But the section further provides that if the order for permanent alimony or maintenance is to be passed at any time subsequent to the decree, the applicant must be either the wife or the husband.
It is, therefore, clear that if permanent alimony or maintenance is claimed subsequent to the decree under the Act, the application must be by the wife or the husband as the case may be. In other words, if the order is to be passed subsequent to the passing of the decree, the application can he made only in proceedings for the restitution of conjugal rights or for judicial separation.
If an application for permanent alimony or maintenance is made subsequent to the passing of the decree, it cannot be made by a person who is a party to proceedings for divorce or for a decree of nullity, because after the decree the parties cease to be related as husband and wife.
Therefore in my opinion under Section 25 no application for permanent alimony or maintenance can be made subsequent to the passing of the decree for dissolution or annulment of marriage in proceedings for dissolution of marriage by divorce or for annulment of marriage by a decree of nullity because at then the relation ship of "husband and wife" has ceased to exist due to decree of divorce or nullity already passed.
Raj Kumar Makkad
(Expert) 20 March 2013
The constitutional guarantee of “Equality
before law" notwithstanding, under the identical provisions of the identical Central law, canacitizen ‘have’a legal right in one State and ‘not have’ such aright in another part of the country? For instance, can a spouse ‘have’ a right to seek maintenance under section 25(l) of the Hindu Marriage Act, 1955 in Andhra Pradesh but ‘iwt to /mve’ such a right in West Bengal 71 And if identical provisions
of identical Central Acts are interpreted, administered, and applied, in different and
inconsistent manner in different parts of the country, the problem certainly calls for urgent and immediate attention with the end in view to (l) remove the existing
anomalies in the laws arising by reason of conflicting judgments of the different
l-Iign Courts and (2) to evolve a mechanism to ensure that such anomalies do not
come into existence in future. Hence the present sua mam exercise.
It is needless to point out that want of
uniformity inlaw not onlyimpairs the quality of the substantive or procedural law but also causes serious inconvenience to citizens in general. Those whose business is to advise persons who consult them on questions of`law, find it diflicult to give such advice with confidence where the decisions are conflicting. Those who are entrusted with the function of adjudicating on questions of law must spend considerable time in choosing between two or more possible views on a subject which falls to be considered before them, ln this process, there is bound to result considerable waste of time and energy. That apart, it is not a satisfactory situation that on a given topic, the rule of law prevailing in one part of the country should be different from the rule prevailing in another part of the country when the disparity arises from conflicting judicial interpretations.
Amit Minocha
(Querist) 21 March 2013
Thx to all the Experts. Your opinion and guidance was very valuable. Thx one again !
